In a recent post, we covered the High Court’s headline-making decision in Epping Forest District Council v Somani Hotels Limited [2025] EWHC 2183 (KB) to grant an injunction preventing the Bell Hotel in Epping from being used to house Asylum Seekers.
In a judgment (currently availably as a summary only) handed down this afternoon, the Court of Appeal have reversed that decision and granted the Home Office permission to intervene in the judicial review to come.
Background
Despite the political furore the injunction caused, the case at root is not (in strictly legal terms) a case about human rights law at all: it is about planning law and injunctions ([4]): whether the use of the hotel to house asylum seekers was “use as a hotel” ([16]), and if not whether an injunction should be granted on an interim basis (i.e. until a full hearing can determine the issue for good). Nor, as the court was at pains to point out, was it about “the merits of Government policy in relation to the provision of accommodation for asylum seekers, in hotels or otherwise.” ([7]).
Acting on Home Office advice, the hotel had opted not to apply for planning permissions for a temporary change of use. It had informed the Council of that fact and received no reply; nor had a previous change of use application been processed for over a year when submitted (despite a statutory time limit of 8 weeks)([12] – [15]).
Since April 2025, there have been three arrests (out of 138 people housed at the hotel), and the hotel’s use has attracted significant protest. The protests themselves have included violence and disorder, resulting in arrests of 25 protestors and criminal charges brought against 16 of those arrested ([17]-[18]).
Intervention by the Home Office
The Court noted the Home Secretary’s duties to asylum seekers, including a duty to prevent destitution, and her general duties and “constitutional role” in relation to maintaining public safety. These, the Court held, meant that ([27]):
[T]he Home Secretary 7 is plainly directly affected by the issues in this case, and specifically by the grant (or not) of an injunction to restrain the provision of accommodation for the asylum seekers at the Hotel.
The judge at first instance had given far too narrow a reading to the question under the Civil Procedure Rules of what made it “desirable” for a new party to be added to proceedings. In particular, he gave no regard to the “the significant practical challenge of relocating a large number of asylum seekers in a short space of time” which would affect the Home Office if the interim injunction were upheld at the final hearing ([28]) and failed to have regard to “the wider range of public interest factors which would be relevant to this application” which made it important for the judge to “put himself in a position to determine the application from the most informed perspective.” ([29]).
The Injunction
Although an error of principle, rather than merely a difference of opinion on the merits, is required to set aside an interim injunction on appeal, the Court held that this hurdle was cleared ([36]). In what must count as a stinging judicial rebuke, the Court held, in so many words, that Eyre J had failed to have regard to a vital national policy aspect of the balance of convenience (which is, under the American Cyanamid test for interim injunctions, a key aspect of whether an injunction should be granted)([37]):
The wider picture: The provision of accommodation for asylum seekers pursuant to the Home Secretary’s statutory duty is a national issue requiring a structured response. 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 also tackled head on the question of the incentivisation of protest, an angle that has drawn critique to the first instance judgment over recent days. The Court noted that Eyre J had “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 was unflinching in its criticism of this approach ([39]):
These are worrying aspects of the judgment. 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. At its worst, if even unlawful protests are to be treated as relevant, there is a risk of encouraging further lawlessness.
The Court went on to consider the Council’s delay, the judge’s mischaracterisation of the non-application for change of use as deliberate on the hotel-owner’s part, and the importance of maintaining the status quo where possible ([41]-[45]).
The Court concluded that the first instance decision was “seriously flawed in principle” and could be reviewed on appeal. Determining that the appeal should be allowed and the injunction set aside, the Court held ([47]):
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.
Comment
The Court of Appeal’s decision has the odd quality, against the background news coverage of the protests, of appearing interventionist. In fact, in most respects, it is an unsurprising decision: maintaining the status quo must take on additional importance when the alternative is that national policy would be affected, potentially to an extreme extent.
But two aspects of the decision are more interesting. First, the Court’s insistence that the Home Office’s contribution was necessary – and its reasons for reaching that conclusion – highlights the extent to which the planning division of the Administrative Court has become a battleground for a controversial issue of asylum and human rights policy. This is only the case because successive governments have wholly failed to deal with the backlog of asylum applications or to provide proper, suitable accommodation for some of the most vulnerable people in society, instead leaving them stuck in the limbo of hastily repurposed hotels. The best way to avoid this legal battle would be to process the claims of those stuck in that limbo.
Second, the Court’s approach to protest is noteworthy. Though tabloid eschatology about Tinderbox Britain and riots on the streets has been wildly overblow, it cannot be denied that violent, nationalist protest groups pose a real threat to asylum seekers accommodated in hotels. Lucy Connolly, for example, has only just been released from prison after calling mass murder by arson of asylum seekers.
To take these protests as a reason that it is convenient to kick the residents of these hotels out, without thought to where it is the Home Office would be able to house them, is profoundly wrong, as the Court recognised. Rather, the Court’s must uphold the protection of the rights of vilified groups even when this is unpopular. The Court’s recognition that to accede to the demands of violent protesters is wrong should be welcomed.
Jasper Gold is a barrister at 1 Crown Office Row and the Commissioning Editor of the UK Human Rights Blog.
