Immigration Bail policy found systemically unfair
30 July 2020
In three conjoined judicial reviews concerning the legality of the Home Secretary’s exercise of her power under paragraph 9 of Schedule 10 of the Immigration Act 2016 to provide accommodation to those who are granted immigration bail, Mr Justice Johnson held in R (Humnyntskyi) v SSHD  EWHC 1912 (Admin) that each of the three claimants had been unlawfully denied such accommodation, and that the relevant policy was systemically unfair.
Under paragraph 9 of Schedule 10 of the Immigration Act 2010, the Home Secretary is given the power to provide accommodation to anyone granted immigration bail with a condition of residence at a specified address, but who would not be able to support them self at that address without accommodation being so provided.
As such, bail can be granted by the Home Secretary or the First-tier Tribunal ‘in principle’, with the grant only being effective once suitable Schedule 10 accommodation is made available.
But there is a threshold requirement of the Home Secretary considering that there are exceptional circumstances that justify the power being exercised.
The Home Secretary accepted that exceptional circumstances would included those assessed as posing a high risk of causing serious harm to the public and, crucially, where someone by reason of lack of accommodation would be at real and immediate risk of suffering inhuman and degrading treatment such as to engage Article 3, and would be unable to avoid that risk, e.g. through securing alternative accommodation or by returning to their country of nationality.
Two of the three Foreign National Offender claimants (Mr Humnyntskyi and WP) claimed that due to the delay in providing suitable accommodation they were unable to take advantage of grants of bail in principle by the First-tier Tribunal. Therefore, they were unlawfully detained.
The second claimant (Mr A) claimed that due to the failure to provide him with accommodation he had been made street homeless and his Article 3 ECHR rights had accordingly been breached.
The three claimants all also argued that the system for providing Schedule 10 accommodation was inherently unfair and that it was unlawful both by reason of unfairness and because the Home Secretary had fettered her discretion as to the circumstances in which she provided accommodation.
The Home Secretary accepted that there had been individual errors in the cases of A and WP amounting to individually unlawful decisions. However, it was denied that the underlying policy and practice governing Schedule 10 accommodation was unlawful.
The workings of the scheme
In a lengthy and detailed judgement Mr Justice Johnson made a series of findings critical of the operation of the Immigration Bail accommodation scheme. He held that:
- Nothing in the unpublished policy, or in the publicly available guidance indicated how a Foreign National Offender (‘FNO‘) might apply for accommodation or make representations in support of the provision of accommodation. The guidance pointed FNOs towards forms that were not appropriate for applying for Schedule 10 accommodation as they did not elicit relevant information. Further, there was nothing in the guidance to alert applicants to how they should raise potentially exceptional circumstances with the Home Secretary.
- In practice, caseworkers treated as a closed list the three examples of exceptional circumstances given in the guidance — SIAC cases (involving security issues), high harm to public cases, and cases where Article 3 ECHR was potentially engaged.
- Further, in practice caseworkers limited consideration of Article 3 solely to FNOs assessed as high risk to the public, rather than as an independent criteria for being exceptional circumstances: “There is an open question as to whether those operating the Schedule 10 policy have, nonetheless, correctly understood how it is intended to operate.”
- The FNO themselves was largely excluded from the decision making process.
The individual claims
Mr Justice Johnson held at [162-165] that there was no evidence that the Home Secretary
had considered whether Mr Humnyntskyi’s situation was exceptional so as to merit the grant of accommodation. All of the evidence suggests that a decision was made that Mr Humnyntskyi did not qualify for accommodation because he was not a high risk FNO. In other words, the FNO risk gateway was treated as being a necessary rather than a sufficient condition for the grant of Schedule 10 accommodation. No consideration was given as to whether there might be some other exceptional feature to justify the provision of accommodation.
This meant that although the failure to consider his application by reference to Article 3 was not in itself a breach of section 6 of the Human Rights Act 1998,
Mr Humnyntskyi was, however, entitled to have his request considered and that simply did not happen … the decision not to provide Mr Humnyntskyi with accommodation was unlawful because there was a failure to have regard to material considerations, namely to consider whether Mr Humnyntskyi’s circumstances were exceptional by reason of his post-sentence residence condition and/or a risk of inhuman and degrading treatment and/or the observations made and directions given by the Tribunal when granting bail.
“Put another way”, stated the Court,
the Secretary of State unlawfully fettered her own discretion to provide accommodation in exceptional circumstances by treating the fact that Mr Humnyntskyi was not a high risk FNO as determinative of his entitlement to accommodation.
Further, the process was unfair as Mr Humnyntskyi was not informed of the decision not to refer his case to the relevant team, nor given any opportunity to make representations (with the requests he had made not being taken into account) or a right of appeal or review:
It is not necessary, for these purposes, to identify the minimum ingredients of a fair process in this context. On any view, the process that took place was unfair.
Mr Humnyntskyi had therefore been unlawfully detained from the point at which Schedule 10 accommodation should reasonably have been provided. This was 1 week from when the decision should have been made.
In respect of Claimant A, Mr Justice Johnson held that the effect of the refusal to grant accommodation made the Claimant likely to be reduced to being homeless, seriously hungry and unable to satisfy basic hygiene requirements. Therefore, his conditions satisfied the Article 3 threshold. Accordingly, the failure to grant Schedule 10 accommodation was a breach of Article 3 as at the time of the decision there was a real and immediate risk that A would endure such conditions if not provided with accommodation.
With regards to Claimant WP, Mr Justice Johnson held that there was no evidence of proper consideration to the provision of Schedule 10 accommodation, even though it should have been clear from an early stage that she might need to be released and that she would be at risk of inhuman and degrading treatment as a lone vulnerable destitute woman on the street. Accordingly, her detention was unlawful.
Mr Justice Johnson also held that there had been multiple errors made by different caseworkers over a protracted period of times, that were repeated, consistent and formed a internal pattern.
He went onto consider the requirements of procedural fairness, noting at  that:
“The matters at stake when a Schedule 10 decision is made may include whether the individual is at liberty or in detention (for a period that may extend for months or even, in extreme cases, years) or whether (as in A’s case) they are rendered street homeless enduring inhuman and degrading conditions (again, as in A’s case, for a protracted period of time). There is no right of appeal to an independent appellate body against an adverse decision.
While there were no universal rules of public law that required either the ability to make representations, or be supplied with a provisional decision, “the determination of whether a system is fair requires a holistic assessment of all of the measures that are in place to achieve fairness.”
Accordingly there was an irreducible core of practical outcomes that a fair policy must achieve:
- The FNO must be able to make representations as to why Schedule 10 accommodation should be provided, and these must be taken into account.
- The FNO must be able to access information as to the criteria for proving Schedule 10 accommodation, so as to know the target for such representations.
- The decision must be considered in accordance with the relevant policy.
- The FNO must be informed of the decision so that they can decide whether to make further representations or to challenge the decision or to make a bail application.
Overall, while a finding of systemic unfairness should not be made unless there was a sufficient evidential basis for concluding that the unfairness was inherent in the system once it was demonstrated that there are legally significant categories of case where there is (as a result of the terms of the policy) a real risk of a more than minimal number of procedurally unfair decisions, “the policy will be shown to be systemically unfair.”
When assessing the reality against the irreducible minimum of fairness, Mr Justice Johnson held first that there were some cases where there was no ability to make representations (e.g. where the FNO was not even aware a decision concerning accommodation had been made or where the FNO was not detained as there was no mechanism by which they could apply).
Secondly, FNOs were not proactively informed of the process, and a significant number would not have any way of knowing how to apply for Schedule 10 accommodation.
Thirdly, there were no evidence that representations made to the caseworker would be routinely passed to the decision maker.
Fourthly, the decisions showed that in reality no consideration was given to the provision of accommodation unless the FNO was a high risk to the public, which was contrary to the published policy and also was an unlawful fetter on the Home Secretary’s discretion.
Finally, nothing required FNOs to be notified of any refusal decision.
Accordingly, he held at  that
the Secretary of State’s policy for the provision of Schedule 10 accommodation does not come close to satisfying the irreducible minimum criteria which are necessary (and may not even be sufficient) to secure fairness. Procedural unfairness is inherent in the policy. The policy creates a real risk of unfairness in more than a minimal number of cases. The exacting test for demonstrating systemic unfairness is therefore satisfied. Further, I consider that it is satisfied by some margin.