Oleh Humnyntskyi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 21 July 2020 |
| Neutral Citation | [2020] EWHC 1912 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 July 2020 |
| Docket Number | Case Nos: CO/307/2019, CO/144/2020, CO/1345/2020 |
[2020] EWHC 1912 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Johnson
Case Nos: CO/307/2019, CO/144/2020, CO/1345/2020
The Queen On the Application of
and
Laura Dubinsky and Eleanor Mitchell (instructed by Deighton Pierce Glynn solicitors) for the First Claimant
Laura Dubinsky and Agata Patyna (instructed by Wilson Solicitors LLP) for the Second Claimant
Laura Dubinsky and Marisa Cohen (instructed by Wilson Solicitors LLP) for the Third Claimant
Eric Metcalfe (instructed by the Government Legal Department) for the Defendant
Hearing dates: 8–10 July 2020
Approved Judgment
These three separate claims for judicial review concern, in their area of intersection, the legality of the Secretary of State's policy approach to the 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. In each of these cases the Secretary of State did not provide bail accommodation:
(1) Mr Humnyntskyi (see paragraphs 61 – 78 below) was detained for a period of 16 months pending his deportation from the United Kingdom. The delay in his deportation was in large measure because he gave a false name and nationality. Conditional orders for bail, subject to a residence condition, were not effective because Mr Humnyntskyi did not have suitable accommodation and the Secretary of State did not provide accommodation. Mr Humnyntskyi has now been deported to Ukraine. He seeks a declaration that he was unlawfully detained (but not damages). My findings in his case are at paragraphs 144 – 188 below.
(2) A (see paragraphs 79 – 101 below) was detained for a period of 11 months. A grant of bail, initially subject to a residence condition, was not effective because A did not have suitable accommodation and the Secretary of State did not provide accommodation. A was then released on bail without any residence condition. He was homeless for a period of 15 months (and street homeless for 10 months). In these proceedings an order was made for interim relief requiring the Secretary of State to provide accommodation. Such accommodation was provided, but A was not moved to the accommodation until 8 days after the final date for compliance with the order. He seeks a finding that the Secretary of State has breached his rights under Article 3 of the European Convention on Human Rights (“ECHR”) (the prohibition on inhuman or degrading treatment). My findings in A's case are at paragraphs 189 – 221 below.
(3) WP (see paragraphs 102 – 143 below) was detained for a period of 4 months. Requests for accommodation did not receive a favourable response. WP withdrew a bail application because of the lack of accommodation and her concerns about being homeless. In these proceedings, an order was made for interim relief requiring the Secretary of State to provide accommodation. Such accommodation was provided. WP seeks damages for unlawful detention. My findings in WP's case are at paragraphs 222 – 247 below.
Each of the Claimants contends that the refusal to provide accommodation was unlawful and had deleterious consequences (loss of liberty in the cases of Mr Humnyntskyi and WP; street homelessness in A's case). They also each say that the system for providing Schedule 10 accommodation is inherently unfair and that it is unlawful both by reason of unfairness and because the Secretary of State has fettered her discretion as to the circumstances in which she will provide accommodation. My findings on these “common claims” are at paragraphs 248 – 297 below.
The Secretary of State accepts that individual decisions made in A's case and WP's case were unlawful (accepting “flagrant” errors in A's case). She expresses regret, but says that these were “aberrant errors” by individual caseworkers, that her policy is fair and lawful and she has not fettered her discretion. She argues that (beyond the concessions as to illegality and the consequences that flow from that) the claims should be dismissed because they are now academic: Mr Humnyntskyi has now been removed from the United Kingdom, A and WP have each been provided with accommodation.
The statutory framework
Detention
The Secretary of State has power to detain a person pending their deportation from the United Kingdom – paragraph 2 of schedule 3 to the Immigration Act 1971. She also has a power to detain a person pending a decision as to whether to give directions for their administrative removal from the United Kingdom (and pending removal pursuant to such a decision) – section 62(1) Nationality, Immigration and Asylum Act 2002.
Provision of accommodation – section 4(1)(c) Immigration and Asylum Act 1999
Prior to the Immigration Act 2016 a person who might otherwise be detained pending deportation could, instead, be granted temporary admission to the United Kingdom, or temporary release from immigration detention, or release on restrictions, or immigration bail. A grant of immigration bail could be made subject to bail conditions, including a condition of residence at a specified address. The Secretary of State had power to provide accommodation for persons who were granted temporary admission, or temporary release from immigration detention, or bail — section 4(1)(c) Immigration and Asylum Act 1999. A person seeking bail was entitled to apply to the Home Office for the provision of accommodation which could be utilised in the event of a grant of bail. This was done by completion of a form that was submitted in advance of a bail application. The form elicited information that informed the Secretary of State's decision as to whether to provide accommodation. Applications for accommodation were, generally, granted if the person did not have alternative accommodation (or the funds to accommodate themselves).
The power to provide accommodation under section 4(1)(c) of the 1999 Act was, in part, repealed by the Immigration Act 2016 with effect from 15 January 2018. There continues to be a power to provide accommodation under section 4(1)(c) of the 1999 Act, but only in respect of a person who has made a claim for asylum which has been rejected.
Bail under Immigration Act 2016
Schedule 10 of the 2016 Act (which is given effect by section 61 of that Act) came into force on 15 January 2018. It makes fresh provision in respect of immigration bail. Paragraph 1 confers a power on the Secretary of State and the First-tier Tribunal (“the Tribunal”) to grant bail to any person detained under (amongst other provisions) the powers set out at paragraph 4 above. It also confers a power to grant bail to any person who is liable to detention under those powers (irrespective of whether it would be lawful to exercise the power of detention – see Kaitey v Secretary of State for the Home Department [2020] EWHC 1861 (Admin) per Elisabeth Laing J at [80]).
Paragraph 2(1) requires that any grant of bail must be made subject to conditions. The conditions that may be imposed include “a condition about the person's residence” (paragraph 2(1)(c)). The Secretary of State or the Tribunal must have regard to certain prescribed matters in determining whether to grant immigration bail and the conditions to be attached to a grant of immigration bail (paragraph 3(1)). Those matters include factors such as the likelihood of a person committing an offence while on immigration bail (paragraph 3(2)(c)) but also “such further matters as the Secretary of State or the First-tier Tribunal thinks relevant” (paragraph 3(2)(f)).
A person who grants immigration bail may amend, remove or add conditions to the grant of bail (paragraph 6(2)). Where the Tribunal grants bail then it may direct that the power to amend, remove or add conditions is to be exercised by the Secretary of State (paragraph 6(3)). If the Tribunal makes such a direction then the Tribunal may not itself amend, remove or add conditions to the grant of bail (paragraph 6(4)).
Provision of accommodation under Schedule 10 of the Immigration Act 2016
Paragraph 9 of Schedule 10 states:
“ Powers of Secretary of State to enable person to meet bail conditions
(1) Sub-paragraph (2) applies where—
(a) a person is on immigration bail subject to a condition requiring the person to reside at an address specified in the condition, and
(b) the person would not be able to support himself or herself at the address unless the power in sub-paragraph (2) were exercised.
(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of that person at that address.
(3) But the power in sub-paragraph (2) applies only to the extent that the Secretary of State thinks that there are exceptional circumstances which justify the exercise of the power.
(4) The Secretary of State may make a payment to a person on immigration bail in respect of travelling expenses which the person has incurred or will incur for the purpose of complying with a bail condition.
(5) But the power in sub-paragraph (4) applies only to the extent that the Secretary of State thinks that there are exceptional circumstances which justify the making of the payment.”
The Secretary of State's power to provide accommodation under paragraph 9 of Schedule 10 is restricted. It may only be exercised where:
(1) The person is on immigration bail;
(2) The person is subject to a bail condition requiring them to reside at a specified address;
(3) The person would not be able to support himself or herself at the address without the provision of accommodation by the Secretary of State;
(4) The Secretary of State...
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