David McGrogan
Dr David McGrogan is an Associate Professor of Law at Northumbria Law School.
The decision by the Court of Appeal on Friday to overturn the High Court’s earlier decision in Epping Forest District Council v Somani Hotels Limited [2025] EWHC 2183 (KB) has generated considerable attention in the media and in online commentary. As usual, the coverage is poorly informed and misses the bigger picture. Let me try to rectify that as best I can.
First: what happened? Even if you have been living under a rock with only woodlice and centipedes for company for the past three months, you have likely heard about the protests going on outside the Bell Hotel in Epping. You will likely also have heard the recent news that the High Court – this is always stated rather dramatically – ‘ordered’ the hotel to close to asylum seekers, in the aforementioned case of Epping Forest District Council v Somani Hotels Limited. It now seems that the Court of Appeal has ‘ordered’ it to stay open. What’s going on?
The most important point to emphasise, first, is that a mountain is being made out of a molehill in regard of the legal significance of these two decisions. (We will come to the political significance later on.) If I can summarise more accurately the judicial to-ing and fro-ing that has taken place, what essentially happened was that the High Court’s decision in Epping Forest District Council v Somani Hotels Limited granted to the council a temporary injunction (lasting probably about two months). This would restrain a purported breach of the Town and Country Planning Act 1990 by Somani Hotels, by requiring the hotel to close for that period, until a full hearing could take place and a proper, final decision made on the legal niceties (due to take place in October). The alleged breach in question was, in effect, that Somani Hotels had failed to secure permission for a temporary change of use for the Bell Hotel from a hotel proper into asylum-seeker accommodation. And the Town and Country Planning Act 1990 gives the court the power to grant injunctions in such circumstance with a very wide discretion – that is, where the court considers it to be ‘appropriate’.
What the Court of Appeal has now held is that the judge in the High Court, Eyre J, was wrong to have granted that temporary injunction and that it had not been in fact ‘appropriate’ to do so. This was because, more or less, it would simply have been better to preserve the status quo until a proper, full and final decision could be made (i.e., in around two months’ time) on the planning law point. That would have been less disruptive not just to the people currently living in the hotel, but also to government policy – the temporary injunction would have caused unnecessary chaos in the asylum system given the requirement to rehouse the residents of the Bell, and given the potential for other councils to seek similar, temporary injunctions.
The Court of Appeal also took the time to give Eyre J a dressing down for having not permitted the Home Office to properly present its case in wanting the hotel to remain open, and for failing to take into account the danger that, in granting his temporary injunction, he was potentially incentivising public demonstrations outside asylum hotels. In his judgement, Eyre J had stated that the ongoing issue of the protests had to be weighed in the balance in favour of ordering the Bell Hotel to close until a full decision could be made. This, in the Court of Appeal’s view, would only encourage protesters outside other hotels across the land – and ought rather to have weighed in the balance against granting the temporary injunction.
What really happened, then, at least in respect of the legal issues at stake, was that the Court of Appeal exhibited that virtue – increasingly rare in the modern age – of judicial deference to politicians. Its decision was that the High Court’s grant of a temporary injunction had played fast and loose with issues which were properly within the remit of government policy and fell to be determined by the Home Secretary rather than judges. It was unnecessarily disruptive in view of the fact that a full and detailed decision on the planning law issues was coming further down the line. And it had improperly balanced the issues at stake. All around, it had not been ‘appropriate’ and therefore the temporary injunction had not been lawfully granted.
That’s the legal issues. However, politically – and this is where we come to the bigger picture – the Court of Appeal’s decision is significant indeed.
The first reason for this is that it puts the government squarely on the hook for its failed asylum policy and its weakness and pusillanimity in that regard. The judiciary, it seems likely, is not going to let politicians off the hook by ordering asylum hotels to close. These facilities are going to remain as visible testimonies to the utter failure of the political system to get to grips with the crisis at the borders. And this is as it should be: this is a political problem, caused by failures of politicians, and it requires political solutions. It is not a matter to be settled in courtrooms.
The second reason is that it means the illegal immigration issue is not going away any time soon. The Court of Appeal, it seems to me, is quite wrong in its assessment of the public mood. The chief reason why people are out in the streets protesting about asylum hotels is because they are (justifiably) angry. They want to see the entire issue of illegal immigration properly confronted and solved, and they want to see that ‘the system’ as such – politicians, judiciary, police, UK Border Force, etc – is working to the utmost to do this. If the Bell Hotel’s temporary closure had gone ahead it would at least have felt like a step in the right direction, and this may have caused public anger to subside somewhat. In this sense, the idea that it would have incentivised further protest is quite wrong. If anything, with the hotels remaining open, we are now due for yet more protests, yet more anger, and yet more public resentment over this issue. In the long-run this makes a political resolution, in the form of a change of government, much more likely. But in the short-run it will make for much more disruption and protest – and, sadly, an increased possibility of genuine violence – rather than less.
This article was originally published by the Daily Sceptic.
