R (SH) and BWO v Secretary of State for the Home Department [2026] EWHC 729 (Admin)

Two asylum-seeking mothers challenged prolonged hotel accommodation under s.95 Immigration and Asylum Act 1999. The High Court held hotel rooms were not 'dwellings' under Part X Housing Act 1985, but found the Home Secretary breached her duty to provide 'adequate' accommodation during specified periods.

Facts

The claimants, SH and BWO, were adult asylum seekers accommodated with their families under Part VI of the Immigration and Asylum Act 1999 (‘IAA 1999’). The Secretary of State accepted both were ‘destitute’ and eligible for asylum support under ss.95-96 IAA 1999, comprising ‘adequate’ accommodation and weekly subsistence payments.

SH, a Kurdish woman from Iraq, arrived in October 2022 with her husband and young son. She was placed at the OYO Flagship London Finchley hotel from December 2022 and remained there for over three years. She gave birth to a daughter in September 2023. Her single hotel room had three beds, ensuite bathroom, fridge and kettle, but no cooking facilities. The hotel provided catered meals buffet-style. SH declined dispersal to locations in Wales, citing her need to remain close to ‘N’, a Kurdish friend providing significant practical and emotional support.

BWO, an Albanian single mother and victim of trafficking, arrived in July 2022 with her two sons (then 17 and 12). She was accommodated at the Best Western Plus Croydon hotel in a room with two beds (requiring her to share a bed with her younger son), until July 2025. She suffered from a knee injury, anxiety, depression and PTSD, and underwent knee surgery in January 2025. She was ultimately dispersed to London accommodation in July 2025.

Issues

The court had to determine:

1. Whether the hotel rooms were ‘dwellings’ for the purposes of Part X of the Housing Act 1985 (‘HA 1985’), which regulates overcrowding.
2. Whether the Defendant’s policy documents (particularly the ‘Space Standards Paper’ and ‘Inspection Guidance’) were unlawful in how they dealt with Part X HA 1985 standards.
3. Whether the Finchley Hotel required licensing as a house in multiple occupation (‘HMO’) under the Housing Act 2004.
4. Whether the hotel accommodation provided to each claimant fell below the statutory standard of ‘adequate’ accommodation under ss.95-96 IAA 1999.

Arguments

Claimants

Counsel for the claimants, Zoë Leventhal KC, argued that a hotel room used as a family’s home for a prolonged period was a ‘dwelling’ within Part X HA 1985, relying on R (N) v Lewisham LBC [2014] UKSC 62 and Uratemp Ventures Ltd v Collins [2001] UKHL 43. It was submitted that the Space Standards Paper was unlawful because it allowed communal areas to be counted when assessing overcrowding, contrary to Part X HA 1985, and alternatively lacked clarity in breach of the ‘duty of prescription’ identified in R (ZLL) v Secretary of State for Communities and Local Government [2022] EWHC 85 (Admin). SH contended the Finchley Hotel was an unlicensed HMO. Both claimants argued their accommodation had fallen below the ‘adequate’ standard.

Defendant

Carine Patry KC for the Defendant contended that hotel rooms used for initial accommodation were not ‘dwellings’, that the Space Standards Paper reflected a rational extra-statutory approach aimed at achieving ‘equivalence’ with Part X standards, and that accommodation decisions were rational in light of the information provided.

Judgment

Dwelling under Part X HA 1985

The Deputy Judge held that the hotel rooms were not ‘dwellings’ for the purposes of Part X HA 1985. Drawing on Lord Hodge’s analysis in N v Lewisham, the court identified several factors: s.95 accommodation is inherently temporary, provided on a night-by-night basis without any commitment to a fixed period; occupants remain ‘destitute’ in the statutory sense; imposing Part X requirements would significantly hamper the Defendant’s flexibility in meeting fluctuating demand; and Part VI IAA 1999 accommodation is expressly excluded from the Protection from Eviction Act 1977. The judge distinguished Uratemp on the basis that it concerned a hotel room occupied under a tenancy, whereas the claimants were mere licensees.

Policy Documents

Having found Part X HA 1985 inapplicable, the court held the Space Standards Paper specified extra-statutory requirements. The Defendant was entitled to adopt adapted versions of the Part X standards, and the adaptations were not irrational. The ‘duty of prescription’ did not apply because the Defendant was not exercising a discretionary power but setting out extra-statutory principles. The court expressed concern, however, that no documented policy existed before June 2024.

HMO Licensing

The court declined to reach a concluded view on whether the Finchley Hotel required an HMO licence, noting doubts about limb (d) of the ‘standard test’ in s.254 HA 2004, and that enforcement was a matter for the local housing authority. The judge was cautious about findings that could implicate persons not before the court in criminal liability.

Adequacy of Accommodation

Applying the principled approach in R (SA) v Secretary of State for the Home Department [2023] EWHC 1787 (Admin), the court made the following findings:

• SH: The Defendant was in breach of duty from 16 December 2023 to the end of April 2025, given the birth of a second child, the absence of cooking facilities, and the family being confined to a single room. The period from 1-8 May 2025 did not involve breach, as Dr Pethania’s psychiatric report had not yet been provided. From 8 May 2025 onwards, the Defendant’s decisions (including the 23 June 2025 and 15 December 2025 decision letters) were unlawful for failing properly to engage with Dr Pethania’s medical evidence and for applying an erroneous ‘exceptional circumstances’ test rather than the statutory ‘adequacy’ standard. The court declined, however, to order dispersal within one hour’s travel of Finchley, recognising that a lawful reconsideration might reach a different conclusion.
• BWO: The Defendant was in breach from 1 October 2022 to 21 February 2024, as the single room with two beds was incompatible with personal dignity given the sons’ ages and BWO’s vulnerability as a trafficking victim with mobility issues. A further breach was found from 8 January 2025 to 3 July 2025, when the Defendant should have confined searches to London following notification of BWO’s knee surgery date.

Implications

The decision clarifies that hotel rooms used for initial accommodation under ss.95-96 IAA 1999 are not ‘dwellings’ within Part X HA 1985, even where families have resided there for years. This means the statutory overcrowding regime does not directly apply to asylum hotel accommodation. The Defendant’s extra-statutory standards in the Space Standards Paper are lawful in principle, though Part X standards may serve as a useful reference point when assessing ‘adequacy’.

The judgment reinforces the principled approach in SA to assessing adequacy, emphasising that prolonged hotel accommodation of families with young children, pregnant women, or vulnerable adults (including trafficking victims) is likely, after a relatively short period, to fall below the ‘dignified standard of living, adequate for health’ required. The decision underscores the importance of taking proper account of medical evidence and vulnerabilities under reg.4 ASRC Regs 2005 and s.55 BCIA 2009, and makes clear that the Defendant cannot substitute an ‘exceptional circumstances’ test for the statutory adequacy standard when considering requests for accommodation in a particular area based on identified needs.

The judgment is significant for the thousands of asylum-seeking families housed in hotel initial accommodation, for the Home Office’s contracting and policy practices, and for practitioners advising asylum seekers. It also flags concerns about the Defendant’s compliance with the duty of candour, and leaves open for local housing authorities the question of HMO licensing of hotels used for asylum accommodation. The court’s findings of breach are fact-specific, and the judgment does not establish a bright-line rule about maximum permissible durations in hotel accommodation.

Verdict: The judicial review claims succeeded in part. The court found that hotel rooms used for initial asylum accommodation are not ‘dwellings’ under Part X of the Housing Act 1985 and dismissed the challenge to the Defendant’s policy documents. However, the Defendant was held to have breached her duty under ss.95-96 IAA 1999 to provide ‘adequate’ accommodation: in SH’s case from 16 December 2023 to the end of April 2025 and from 8 May 2025 continuing; in BWO’s case from 1 October 2022 to 21 February 2024 and from 8 January 2025 to 3 July 2025. The court declined to make a mandatory order requiring SH’s dispersal within one hour of Finchley.

Source: R (SH) and BWO v Secretary of State for the Home Department [2026] EWHC 729 (Admin)