The Town and Country Planning (Napier Barracks) Special Development Order 2021 was laid before Parliament on 27 August 2021. Its purpose was to extend the planning permission for the Napier Barracks site to allow it to continue to be used as asylum accommodation until September 2026. That extension came into force on 21 September 2021.

On 7 April 2022, the House of Lords is due to debate the following motion:

Lord Paddick (Liberal Democrat) to move that this House regrets that the Town and Country Planning (Napier Barracks) Special Development Order 2021 (SI 2021/962) extends the planning permission for the Napier Barracks to continue to be used as asylum accommodation despite (1) a High Court judgment on 3 June 2021, which found standards and operational systems at the barracks to be unlawful, (2) concerns being raised over the unsanitary and crowded conditions, and (3) reports of intimidation and mistreatment of residents; and that, despite the current expiration date on planning permission being known for 12 months, the Order was laid when the House was not sitting.

1. The use of Napier Barracks to house asylum seekers

Napier Barracks is a former military barracks in Folkstone, Kent, currently being used to house those seeking asylum. The site was ‘loaned’ to the Home Office by the Ministry of Defence in 2020 to provide temporary or contingency accommodation for asylum seekers at a time of “significant pressure” on the asylum system compounded by the Covid-19 pandemic.

Conditions at the barracks have been subject to widespread criticism. This includes from the Independent Chief Inspector of Borders and Immigration (ICIBI) and HM Inspectorate of Prisons (HMIP) who concluded that the accommodation was unsuitable for long-term use and that the numbers living at the camp when it was full made social distancing impossible. The House of Lords Secondary Legislation Scrutiny Committee noted there have been at least two COVID-19 outbreaks at the site, following the use of dormitory accommodation contrary to the advice of Public Health England (PHE).

In June 2021, a judgment from the High Court found that Napier Barracks provided inadequate accommodation for asylum seekers, that the Home Office’s process for selecting people to be accommodated at the Barracks was flawed and unlawful, and that residents of Napier Barracks were unlawfully detained under purported Covid rules. The failings observed at Napier Barracks reportedly included the following:

  • Overcrowding
  • Lack of ventilation
  • Run-down buildings
  • Use of communal dormitories during a pandemic
  • Significant fire risks
  • ‘Filthy’ facilities
  • ‘Decrepit’ isolation block not fit for habitation

The judge, Mr Justice Linden, declined to rule the barracks could never be used to house asylum seekers, but called for “substantial improvements”.

Then chair of the House of Commons Home Affairs Committee, and now Shadow Home Secretary, Yvette Cooper, said her committee had been assured by the Home Secretary and the Permanent Secretary to the Home Office, Matthew Rycroft, in February 2021 that Home Office was working “in line with public health guidance”, which Ms Cooper argued was “clearly” not the case. She added that it was “incomprehensible” that the Home Office utilised communal dormitories and shared facilities when coronavirus cases were so widespread.

In response to the ruling, a spokesperson from the Home Office said:

During the height of the pandemic, to ensure asylum seekers were not left destitute, additional accommodation was required at extremely short notice. Such accommodation provided asylum seekers a safe and secure place to stay. Throughout this period our accommodation providers and sub-contractors have made improvements to the site and continue to do so.

It is disappointing that this judgment was reached on the basis of the site prior to the significant improvement works which have taken place in difficult circumstances.

These improvement works were further detailed in a letter to Yvette Cooper from the Home Secretary in August 2021.

Napier Barracks is not classed as an asylum accommodation centre. Rather, it is classified as contingency accommodation. This alters the Government’s responsibilities including, for example, its duty to establish an advisory group for the site under section 33 of the Nationality, Immigration and Asylum Act 2002. In his ‘will write’ letter to Sir Roger Gale and Ms Siobhain McDonagh, chairs of the Nationality and Borders Bill committee, Tom Pursglove, Parliamentary Under Secretary of State, outlined the Government’s oversight processes:

[As] part of our oversight of the provider running Napier, senior officials regularly attend the site to inspect it and work face to face with the management team.  In addition, Home Office officials hold weekly virtual meetings with service users to listen to their experiences. When issues are raised, they are investigated and acted on as appropriate. Multi-agency forums, which include the emergency services and local government as well as NGO forums, meet regularly to ensure opportunities and issues are collectively understood and actions taken.

The letter also stated that the Home Office also provides funding to Migrant Help, a voluntary sector organisation, who provide guidance and assistance to all asylum seekers onsite about their rights and responsibilities and signposts them to appropriate services.

In answer to a written parliamentary question provided by Home Office minister Baroness Williams of Trafford in December 2021, local data held by Clearsprings Ready Homes suggests that 1033 ‘service users’ had been accommodated at Napier Barracks since 9 April 2021.

Also in December 2021, the High Court reportedly granted permission for a judicial review to proceed to a full hearing challenging the Home Office’s decision to continue using Napier Barracks as asylum accommodation for a further five years. At that time, in the absence of government consultation on the move, though ministers have subsequently held a consultation exercise, as detailed below.

2. The Town and Country Planning (Napier Barracks) Special Development Order 2021

The Town and Country Planning (Napier Barracks) Special Development Order 2021 was laid in August 2021 and its extension provisions came into force in September 2021.

Of the measures contained in the order, articles 1 and 2 concern commencement provisions and terminology. Article 3 preserves the effect of the Town and Country Planning (General Permitted Development) (England) Order 2015 to ensure that the development rights permitted under that order continue to apply in relation to Napier Barracks.

Article 4 grants planning permission for development consisting of a change of use of Napier Barracks to use for the provision of facilities, support or accommodation to certain asylum seekers or failed asylum seekers, together with their dependants.

Article 5 imposes a condition that the use of Napier Barracks under article 4 is only permitted where the Secretary of State approves an operational management plan in relation to the site, and where Napier Barracks is operated in accordance with it.

The permission granted by article 4 ceases at the end of 20 September 2026. (Or before that date if the Secretary of States permits possession of the whole of Napier Barracks to enable building operations to be undertaken pursuant to a specified outline planning permission.)

3. Report from the Secondary Legislation Scrutiny Committee

The House of Lords Secondary Legislation Scrutiny Committee examined the order as part of its 13th report of this session, published 16 September 2021, drawing the instrument to the ‘special attention’ of the House.

The committee said that it recognised the accommodation at Napier Barracks had been set up quickly and consequentially had experienced some operational difficulties. However, the committee said the fact that in the opinion of several authorities, including the High Court, the site was unsuitable and significant improvement was required “should have been disclosed to Parliament given that the purpose of the instrument is to enable continued operation at that site for a further five years”.

The committee was also critical of the explanatory memorandum provided alongside the instrument for being “thin” and, in particular, for lacking detail about proposed improvements to the living accommodation and amenities at the site. It added that better arrangements for physical and mental health care were a matter of urgency.

Further, regarding the timing of the instrument being laid during the parliamentary recess, the committee said:

Paragraph 6.3 of the EM (explanatory memorandum) says: “The extension of permission through a Special Development Order has been chosen because it allows permission to be secured in a timely manner, in view of the urgent need to continue to use Napier for asylum seekers who would otherwise be destitute when the current planning permission expires.” Since the date that the current planning permission expires has been known for 12 months, we found this reason for laying a potentially controversial instrument when Parliament was not sitting unconvincing.

The committee added that this argument was further undermined given the Home Office had also stated that the Napier site may be used to pilot new models for ‘reception centres’, as provided for by the New Plan for Immigration and the Nationality and Borders Bill, currently before Parliament.

The committee said it was drawing the instrument to the special attention of the House “on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.

4. Government consultation exercise

In January 2022, the Government ran a consultation exercise on the measures contained in the Town and Country Planning (Napier Barracks) Special Development Order 2021, enabling the continued use of Napier Barracks for eligible asylum seekers whilst their claims are being considered.

In response to a written parliamentary question on why such a consultation was not held prior to the extension of planning permission, Parliamentary Under Secretary of State for the Home Office, Kevin Foster, said:

Given the increasing pressure on the asylum accommodation system, the Home Office took the decision that retaining the use of Napier beyond 21 September 2021 was necessary to ensure sufficient accommodation was available to uphold our statutory requirement.

The Home Office engaged with statutory partners, members of parliament and local government before the SDO was laid before Parliament. The timing of this decision and the circumstances in which it was made (i.e. the quickly growing need to secure accommodation) dictated only a limited level of engagement could be undertaken.

Mr Foster added that all representations made in relation to the planning application will be considered to inform the planning process and any representation will be contained within a statement of community involvement (SCI) report.

The consultation has now closed, and the Government is analysing the feedback received.

However, the exercise has been criticised by observers such as the Immigration Law Practitioners’ Association (ILPA), who argue that it is not a meaningful consultation process given that it has taken place after an extension to the usage of the site has been implemented. The ILPA have also criticised the length of the consultation period and a lack of clarity over how the results will be used.

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Cover image from GOV.UK website.