Immigration: a dress rehearsal

By Richard North - August 23, 2025

In a cluttered news agenda, which includes Farage rather improbably promising to deport “hundreds of thousands of asylum seekers who come to the UK on small boats” – notwithstanding that only 170,000 have come so far – the Bell Hotel is back in the headlines.

Yesterday afternoon, Yvette Cooper announced – using Twitter (or X if you insist) – the Home Office’s intention to appeal the decision of Mr Justice Eyre in the High Court in what she says is an attempt to ensure that the closure of all hotels can be done in a properly managed way.

With no detail being offered in the Home Office statement, we have to rely on the legacy media to learn more and it is the BBC which tells us that the initial thrust of the action is to challenge the decision of the trial judge to exclude the Home Office from the proceedings, after a last-minute application to join the action as a co-defendant was refused.

Should this new action succeed, the BBC suggests that the government is then expected to consider a further appeal against the ruling itself. Whether that will be the case is not clear. It needs someone with a greater knowledge of High Court procedures than me, but I would have thought that if this narrow point is successfully challenged, then the next step might be to have the case reheard – possibly in front of a different judge – with the Home Office allowed to give evidence.

However, the BBC report goes on to cite a senior Home Office source who said the new action was a matter of “democracy” and that the judiciary should not be able to tell the government where it can and can’t place asylum seekers. We are told, though, that the source later clarified this assertion, saying that it did not reflect the Home Office’s position.

This is just as well because it is the judiciary’s duty – within the proper legal framework – to ensure that the government obeys the law and that is the principle at stake here, as to whether planning laws have been breached. If that is found to be the case, it will be law – as enforced by local authorities, using the courts as the longstop – which decides where the government can and can’t place asylum seekers.

But what is not coming across is the convoluted nature of these High Court proceedings, which I sought to explain in my earlier piece where I pointed out that this was an interim hearing which did not seek to resolve the question of whether there had been a planning breach.

This question was for a second, longer hearing so the task for the trial judge in this instance was to satisfy himself that there was a case to answer in terms of a breach of planning law and then to decide on an appropriate form of relief – if any – on the basis of the “balance of convenience” test.

In the event, Mr Justice Eyre decided that an interim injunction was warranted and, in making the order, also refused leave to appeal. This, though, in the arcane nature of court procedures, does not mean that there cannot be an appeal. It means that the defendant – in this case – must ask the Court of Appeal, in a separate hearing, to be allowed to appeal, effectively over-riding the trial judge.

If permission is granted, there is yet another hearing, this one also in the Court of Appeal, when the decision to grant an interim injunction can be overturned. It should be noted, though, that the appeal court cannot address issues which have not been raised in the first trial, so there can be no definitive judgement on a planning breach via this route.

As it stands, of course, the Home Office cannot appeal the original case as it was not a party to it, hence it taking the more laborious route of challenging its exclusion. But just to confuse the issue still further, we learn from the BBC that Somani Hotels, the owner of the Bell Hotel, is seeking permission to appeal against the injunction.

Potentially, that could end up with a situation where two separate hearings are listed, although one presumes that the Home Office case will have to be heard first. If that allows a further hearing of the High Court, with the additional evidence heard, the Somani appeal will only need to go ahead if the ruling is made in favour of Epping Forest Council once again.

If, at this stage, you – and everybody else – are thoroughly confused, that could very well be the intention. By seeking this convoluted route, the parties are actually delaying the hearing on the substantive issue of whether there has been a breach of planning law, the so-called Section 187B hearing under the Town and Country Planning Act 1990.

In order to resolve this issue, by far the best option would be to avoid the complications of an appeal against Mr Justice Eyre’s interpretation of the “balance of convenience” test and to move as swiftly as possible to the Section 187B hearing, as indeed Eyre suggested in his own judgement.

By its behaviour in this case – and previous cases, the Home Office seems to believe that it is above the law and can disregard planning rules and stands at risk of being brought to heel by the due processes of law. But, by challenging the interim decision, it is circumventing a definitive decision on those rules and thereby evading a judgement on whether its behaviour is lawful.

This point seems to have been completely missed by much of the legacy media and the commentariat, in particular the staggeringly ill-informed report from the Telegraph which asserts that the Bell Hotel was ordered to close “for not having planning permission after it became a focus for anti-immigration protests”, despite the judgement itself stating: “The breach of planning control has not been definitively established”.

At the Section 187B hearing to follow, the judge observed that it was “possible that the final conclusion could be that the Defendant is right to say that there has been no breach of planning control”, in which case the interim injunction – if it still applied – would be lifted.

The crucial point here, which has not at all been rehearsed, is that the evidence that the Home Office seeks to give – on the wider impact of an injunction on the migrant housing programme and the interference with the home secretary’s statutory duties – is relevant only at the interim hearing stage, where the judge is tasked with applying the “balance of convenience” test.

As the final Section 187B, the only issue on the table is whether there has been a breach of planning law. If the hotel is in breach then all the other considerations fall away. Even (or perhaps especially) the home secretary cannot claim exemption from the law in order to fulfil her statutory duties. That is the very essence of the Rule of Law, where no-one, not even a secretary of state, is above the law.

The interesting thing here is that, although the statutory duty to house asylum seekers only came in with the Immigration and Asylum Act 1999, under the Blair administration, the hotel programme only started in early 2020 as an emergency response to the Covid epidemic.

It was not until mid-2020 to 2021, as asylum arrivals increased via small boat crossings across the Channel), that the use of hotels expanded significantly. By September 2020, the Home Office confirmed it was using around 100 hotels to accommodate over 5,000 asylum seekers.

Even then this was intended only as a short-term measure, but it has since become a staple due to backlogs in the asylum system and it is now a core part of the asylum seeker response – notwithstanding Labour’s promise to phase out the use of hotels.

For that entire period, though, there has never been a court action which has reached the stage where a definitive ruling has been made on the application of planning law and whether change of use permission is needed. Even the earlier cases were to hear renewals of ex parte applications for injunctions, so the core issue was not resolved.

Looking at this issue in the round, it has the feel of the home secretary out on manoeuvres, seeking procedural means to avoid what could be an embarrassing judgement that the bulk of the government’s migrant housing scheme has been unlawful.

But, in seeking to obscure what itself might be political dynamite – affecting both Conservative and Labour administrations, this current home secretary is playing with fire. If, as appears already to be the case, she is seen to be opposing the closure of asylum hotels, in the face of actions by “democratically elected local authorities”, she will be adding significantly to tensions in an already febrile atmosphere.

As a Conservative councillor in Epping remarked: “The Government keep churning out the line that they’re going to get all the hotels closed by the end of this Parliament. Our community can’t afford to wait another four years”.

I rather suspect that, if the closure of the Epping Hotel is blocked, the wave of protests that we have so far seen outside migrant hotels will prove to be no more than a dress rehearsal for something far more robust.