ACN v Secretary of State: Public sector equality duty and statistical monitoring requirements

The High Court has rejected a judicial review challenge concerning the Secretary of State for the Home Department's alleged failure to conduct statistical monitoring of asylum accommodation allocated to LGBT+ asylum seekers. The case provides important guidance on the scope of the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010.

The claimant, a bisexual man from Cameroon who had fled persecution, challenged the defendant's failure to undertake statistical monitoring regarding policies for allocating accommodation at large sites and shared hotel rooms to asylum seekers with protected characteristics of sexual orientation and gender reassignment. Whilst the claimant was granted asylum before the substantive hearing, permission was granted to pursue a systemic challenge.

Mr Justice Poole emphasised the importance of identifying the precise function being exercised when considering PSED compliance. The relevant function here was providing accommodation to asylum seekers under sections 95-97 of the Immigration and Asylum Act 1999. The court noted that the Allocation of Asylum Accommodation Policy operates on a case-by-case basis, with no blanket rules requiring or preventing LGBT+ asylum seekers from being allocated to particular types of accommodation.

The judgement carefully distinguished this case from previous authorities relied upon by the claimant, particularly R (DMA) v SSHD and R (DXK) v SSHD. Those cases concerned delays in providing accommodation to vulnerable groups—disabled individuals and pregnant and new mother asylum seekers—where statistical monitoring was necessary to identify whether policies were being implemented and achieving their purposes.

Crucially, the court found that LGBT+ asylum seekers are not "vulnerable persons" as defined by the Asylum Seekers (Reception Conditions) Regulations 2005 solely by virtue of their sexual orientation or gender reassignment. The allocation policy applied equally to LGBT+ and non-LGBT+ asylum seekers, with individual assessments determining suitability for particular accommodation types.

The court held that statistical monitoring would not inform either policy formulation or individual allocation decisions. Unlike the circumstances in DMA and DXK, there was no evidence of disproportionate adverse impact on LGBT+ asylum seekers arising from policy implementation. Individual LGBT+ asylum seekers might require alternative accommodation for various reasons, but statistical data would have no relevance to those case-specific determinations.

Mr Justice Poole rejected arguments that statistical monitoring was necessary to assess whether the case-by-case approach was "functioning" or "working for" LGBT+ asylum seekers, noting these were not PSED equality objectives. The PSED requires due regard to be given to eliminating discrimination, advancing equality of opportunity, and fostering good relations, but does not mandate particular outcomes or methods of assessment.

The court acknowledged that the defendant collected survey data from asylum seekers, though this was not used in policy development or equality impact assessments. However, doubts arose regarding whether surveys adequately covered large site accommodation, with evidence from the defendant's witness requiring correction during and after the hearing.

Ultimately, the court found that given the function being performed and the nature of the allocation policy, the PSED did not require statistical monitoring of accommodation allocation to LGBT+ asylum seekers. The claim was dismissed. The judgement reinforces that whilst statistical monitoring may sometimes be necessary for PSED compliance, this depends heavily on context, particularly where policies operate on individual assessment rather than group-based allocation.

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