Home Office wins appeal over asylum hotel interim injunction

The Home Secretary was granted the right to intervene in the litigation, as she was "plainly directly affected by the issues in this case", the Court of Appeal found.

Handing down a summary of the judgment today (29 August), Lord Justice Bean, who heard the appeal with Lady Justice Nicola Davies and Lord Justice Cobb, said Mr Justice Eyre had made a "number of errors of principle" that undermined his decision.

Eyre J granted the council an interim injunction earlier this month, after finding that the balance of convenience favoured the council's application, in light of the public interest in enforcing planning control and the loss of amenity of local residents.

The Home Secretary and the operators of the Bell Hotel, Somani Hotels, both launched appeals.

The Court of Appeal considered the two appeals as linked applications.

The Home Secretary's application appealed both the decision to grant interim relief and the decision to refuse the Home Office's application to intervene in the case.

The Court of Appeal's summary described the provision of accommodation for asylum seekers pursuant to the Home Secretary's statutory duty as "a national issue requiring a structured response".

It added: "Ad hoc interim injunction applications seeking closure of particular sites may each have some individual merit, but the judge's approach ignores the obvious consequence that closure of one site means that capacity needs to be identified elsewhere in the system, and may incentivise local planning authorities who wish to remove asylum accommodation from their area to apply to the court urgently before capacity elsewhere in the system becomes exhausted."

The potential cumulative impact of such ad hoc applications was a material consideration within the balance of convenience, "but was not considered by the judge, perhaps because he did not have the advantage in reaching his decision of evidence and submissions from the Home Office," the Court of Appeal found.

Regarding submissions from Epping that the protests operated as a "trigger" for the injunction application, the Court of Appeal said: "The fact of protests outside a building is not obviously a matter falling within planning control. While we accept that the judge was right to exercise considerable caution before attaching weight to the fact of the protests, including unlawful protests outside the hotel, he nonetheless gave weight in his evaluation to the fact that protests were occurring and weighed them in the balance as a factor in favour of granting the injunction."

The Court of Appeal said that if an outbreak of protests enhances the case for a planning injunction, "this runs the risk of acting as an impetus or incentive for further protests", some of which may be disorderly, around asylum accommodation.

The judgment said that Eyre J did not appear to have considered this risk, "perhaps because he denied himself the advantage of hearing submissions on the merits from counsel for the Home Secretary".

He also failed to consider whether there would have been alternative measures to mitigate the disruption, such as the use of police powers under the Public Order Act 1986, or an application by the council to restrain unlawful protests, the Court of Appeal added.

The Court of Appeal decision also considered the delay in considering the hotel's efforts to obtain planning consent for the hotel's use.

For much of the period of four years from 2020-2024 Somani Hotels had been running the hotel as accommodation for asylum seekers without enforcement action from the council.

"When, in 2023, Somani sought planning consent to change its use, for over a year Epping did not process the application, notwithstanding the statutory duty upon it to do so within eight weeks," the Court of Appeal judgement said.

It continued: "The council was aware by February 2025 that the hotel was once again to be used to house asylum seekers, and by its letter of 15 May 2025 Somani made clear that it had been advised by the Home Office that a planning application was unnecessary.

"The council took no steps in response to this letter whether by issuing an enforcement notice or otherwise. There was no threat of court proceedings."

The Court of Appeal pointed out that Somani was first made aware of any step of this kind when it received the court papers and a court bundle running to over 1,600 pages together with a detailed skeleton argument prepared by leading and junior counsel.

It said the tactics used on the council's behalf were "not only procedurally unfair to Somani, but ought to have reinforced the argument that the delay was a significant factor in the balance against the grant of interim relief".

The Court of Appeal meanwhile found that Eyre J  "wrongly characterised" the hotel operator's actions.

On this point, Bean LJ said: "The judge found as a fact that Somani had acted deliberately in declining to seek change of use permission under planning law after April 2025. He was critical of them taking this line. He was wrong in both respects.

"Those underserved criticism which were repeated several times in the judgment mainly plainly played a material part in the judge's ultimate decision."

It continued: "If the council had considered Somani to be in breach of planning laws, it could have taken enforcement measures provided for within the 1990 Act.

"It did not do so. In short, the judge's exercise of discretion in this case was seriously flawed by his erroneous reliance on the 'deliberate breach' as a significant factor in favour of the grant of an interim injunction."

The decision then turned to the temporary nature of the injunction, ahead of a full hearing.

The Court of Appeal said that the judge appeared "to have given very little weight to the desirability of preserving the status quo" during the period between granting the interim application and the full hearing in October.

"The risk of injustice to the residents of the hotel by being dispersed by 12 September, when the trial of the claim was to take place only some six weeks later, seems to have had oddly little resonance with the judge," it said.

The Court of Appeal ultimately found that the judge's "approach to the balance of convenience exercise was seriously flawed in principle".

It added: "The Epping residents' fear of crime was properly taken into account by the judge as a factor in favour of the grant of an injunction; he described it as being of limited weight. The appellants do not say it was irrelevant; the council does not say it should be decisive.

"We agree that it is relevant, but in our view it is clearly outweighed, in the American Cyanamid balancing exercise, by the undesirability of incentivising protests, by the desirability in the interests of justice of preserving the status quo for the relatively brief period leading up to the forthcoming trial, and by the range of public interest factors which we have discussed in our judgment."

The final trial will now take place in October.

Responding to the ruling, Dame Angela Eagle, Minister for Border Security and Asylum said: "We inherited a chaotic asylum accommodation system costing billions. This government will close all hotels by the end of this Parliament and we appealed this judgment so hotels like the Bell can be exited in a controlled and orderly way that avoids the chaos of recent years that saw 400 hotels open at a cost of £9m a day.

"The number of hotels has almost halved since its peak in 2023 and we have brought down costs by 15% saving £700m and putting us on track to save a billion pounds a year by 2028-29."

The minister added: “We are also working hard to relieve pressure on the system and striking back at criminal people smuggling gangs at every stage, including returning more than 35,000 people who have no right to be here, equipping law enforcement with counter-terror style powers and starting to detain small boat arrivals under our groundbreaking deal with France.

“It will take some time to fix the broken system we inherited, but the British public deserve nothing less, and we will not stop until the job is done.”

Epping Forest District Council said it was “deeply disappointed” by the outcome of the hearing.

In a statement it said: “While Epping Forest has brought the wider asylum seeker debate into sharp national focus, the concern and motivation of Epping Forest District Council throughout has been the wellbeing of our local residents. Where we had clarity and resolution, we now have doubt and confusion.

“However, this is not the end of the matter. While the Court of Appeal has lifted the temporary injunction, the case for the final injunction is still to be heard. Our battle on behalf of our residents will continue. A few weeks from now we will be back in court where we trust the strength of our case will still prevail.”

The council added that it had given the Home Office “much cause for reflection”.

It said: “We understand Government faces a dilemma but that should not be at the expense of local communities. Planning law may seem dull. It might seem boring. But it goes to the heart of the relationship between local communities and good government. It enshrines the rights of local people to have a say within their own communities and it should not be set aside lightly.

“The Government can still listen. It needs to understand and take responsibility for the events that have taken place in Epping over the past 6 weeks. For the trauma and disruption brought upon our community. The battle is not over, and we will continue the fight – it is nothing less than the people of Epping would expect and deserve.”

According to a report on the BBC, Lisa Foster of Richard Buxton Solicitors, who acted for Somani Hotels, said the company realised that it had been “caught in the middle of a much wider debate on the treatment of asylum seekers".

She asked that members of the public "understand that the Bell Hotel has simply been providing a contracted service that the government requires".

“We now ask that all associated with the Bell Hotel are left alone to continue to support the government’s asylum plans as best they can.”

The Shadow Justice Secretary, Robert Jenrick, described the Court of Appeal ruling as “an extremely disappointing decision”.

He said on X: “This is not a free pass for asylum hotels. Councils can and should still act to close hotels. If they don’t, residents will rightly ask, on whose side are they?”

Victoria Searle, principal associate in the government team at law firm Browne Jacobson, said the Court of Appeal’s judgment reaffirmed its view that local authorities should exercise caution and consider the wider implications of pursuing similar action to Epping Forest, including for their own use of hotels, and bed and breakfast accommodation, to house the vulnerable – including the homeless and those without recourse to public funds on account of their immigration status.

She said: “The latest Home Office figures show there are more than 32,000 asylum seekers living in hotels, while Shelter's research revealed 326,000 homeless people living in temporary housing as of December 2024.

“With the UK facing a severe social housing shortage and local authorities experiencing unprecedented pressure on their homelessness services, a long-term and sustainable solution to these challenges is required nationally. This will inevitably require close co-operation between all branches of government.”

Searle said: “Local authorities and central government alike are looking for solutions to the problem of accommodating vulnerable people in costly and potentially unsuitable hotel accommodation.

“We are seeing increased innovation in this area, and are working with many local authorities to grow their long-term supply of suitable housing, thereby reducing their own use of costly, nightly-let hotel and bed and breakfast accommodation.”

Adam Carey