The King (on the application of BLZ) v Secretary of State for the Home Department

Hearing dates ( BLZ No. 1): 3–6, 12.9.24, 15.10.24

Hearing dates ( BLZ No.2): 28 & 29.11.24

Further written submissions: 15.11.23, 5, 13 & 16.12.24

Draft judgment: 17.1.25

Approved Judgment

Note: This judgment was handed-down virtually at 10am on 29.1.25 by circulation to the parties and uploading to the National Archives.

I. INTRODUCTION

This case is about Home Office planning for the allocation of suitable Home Office Bail Accommodation (“HOBA”) and for a “Safe-Release” from an immigration removal centre (“IRC”), all in the context of a foreign national offender (“FNO”). The case features potential care and support needs, statutory human rights and equality rights. HOBA is governed by Sch 10 §9 to the Immigration Act 2016. Safe-Release from an IRC is governed by a Detention Services Order called DSO 08/2016. Care and support needs are governed by the Care Act 2014; statutory human rights by the Human Rights Act 1998 (“ HRA”); and equality rights by the Equality Act 2010 (“EA”). I will survey the legal landscape in Part II: §§5–33 below.

Everything really stems from an order made on 29.6.23 by Judge Cox at the First-Tier Tribunal (“FTT”). Judge Cox granted “immigration bail in principle” (2016 Act Sch 10 §1(3)). He imposed a residence condition: that the Claimant “must reside at an address arranged by the SSHD under her statutory powers” (ie. the powers in Sch 10 §9 to provide HOBA). The commencement of a grant of immigration bail may be made conditional on specified arrangements being in place “to ensure that the person is able to comply with the bail conditions” (Sch 10 §3(8)) and so the residence condition specified that the grant of bail “will not commence until such address has been provided or made available”. I will summarise the factual context in Part III: §§34–59 below.

This judgment is one of a pair. I heard two linked claims for judicial review, brought by the Claimant and arising out of the same background facts. This first claim is against the SSHD. My judgment in the second claim, against Leeds City Council (“LCC”), is BLZ No.2 [2025] EWHC 154 (Admin). The substantive hearing was not a model. A ‘vacation’ listing of 3 days was originally secured by the parties, intended by them to deal fully with both claims. That proved significantly overambitious. The issue of anonymising local authorities alone occupied much of the single pre-reading day and the morning of Day 1. The factual and legal subject-matter which the parties had chosen to raise needed proper ventilation, explanation and testing at the oral hearing. Further hearing days had to be found within the Court's calendar. A full hearing week in term time was found and allocated, but was lost at short notice due to unforeseeable illness of a key team member. The parties were agreed that I should deliberate and rule on BLZ No.1 only after the conclusion of the hearing in BLZ No.2 (on 29.11.24), having considered all the evidence and arguments, including written submissions (up to 16.12.24). I am grateful for the assistance I received. When I refer to Lead Counsel I include their teams of solicitors and barristers. Numbering in square brackets within quotations is mine. I will analyse the issues in Part IV: §§60–89 below.

The Issues identified by the parties in this claim came to this:

Issue (1). Policy-Gap. Did the SSHD act unlawfully in failing to have in a place a written policy (1a) helping decision-makers to identify when a person has or may have eligible care and support needs under the 2014 Act and/or (1b) requiring decision-makers to refer such persons to a local authority for a needs assessment under the 2014 Act prior to or following their release from detention to HOBA?

Issue (2). Policy-Adherence. Did the SSHD fail to apply these published policy guidance documents: (2a) Immigration Bail Interim Guidance, by failing to provide the Claimant with “Level 3” accommodation within the meaning of that policy? (2b) DSO 08/2016, by failing to convene an expedited multi-disciplinary meeting to plan for the Claimant's Safe-Release from detention and/or arrange a local authority assessment of the Claimant's 2014 Act needs?

Issue (3). Statutory Duty/Reasonableness. Did the SSHD act unlawfully in breach of the duties under Sch 10 §9 to the 2016 Act to provide suitable HOBA and/or did she act unreasonably in: (3a) Failing to consider the need for and make the necessary arrangements for referral to a local authority for assessment under the 2014 Act prior to or following the release of the Claimant from detention to HOBA? (3b) Failing to provide the Claimant with suitable/safe HOBA on and/or after release from detention?

Issue (4). HRA. (4a) Does the SSHD's system for the provision of release accommodation create a real risk of a breach of fundamental rights? (4b) Did the SSHD breach the Systems Duty under Articles 2 and/or 3 ECHR, by failing to put in place effective systems and arrangements to prevent foreseeable risks to life and/or serious injury and/or serious harm to mental and/or physical health? (4c) Did the SSHD breach the Operational Duty owed to the Claimant under Articles 2 and/or 3 ECHR, because she knew or ought to have known of a real and immediate risk to life and/or serious injury and/or serious harm, and failed to take reasonable measures within the scope of her powers which might have been expected to avoid that risk? (4d) Did the SSHD breach the Claimant's substantive Article 3 rights between 3 August 2023 and 22 December 2023 because (i) the level of the Claimant's suffering or indignity crossed the severity threshold for constituting ‘degrading treatment’ under Article 3 (ii) for which the SSHD was responsible? (4e) Did the SSHD breach the Claimant's Article 8 rights between 3 August 2023 and 22 December 2023 because the treatment of the Claimant was a disproportionate interference with his private life as protected by Article 8?

Issue (5). EA. (5a) Did the SSHD breach the Public Sector Equality Duty under s.149 of the EA? (5b) Did the SSHD breach ss.20 and 29 of the EA by failing to make reasonable adjustments to: (i) the release planning process and/or (ii) the process for sourcing and providing HOBA for disabled people with complex or high-level needs? (5c) Did the SSHD discriminate against the Claimant by failing to provide him with suitable accommodation as a consequence of his disability, in breach of s.15 of the EA?

There are agreed prior questions which came to this:

Prior Question (A). Anonymity. Should the interim anonymity order and reporting restrictions be continued and were the further restrictions sought justified based on maintenance of the administration of justice and/or harm to other legitimate interests?

Prior Question (B). Academic Claim. Should the Court decline to determine Issues (1)-(3), (4a) and/or (5a) on the basis that they are academic in light of the Claimant's placement in the Hotel and/or the SSHD's proposed policy review?

Prior Question (C). Transfer Out. Should the determination of Issues (4b), (4c), (4d), (4e), (5b) and/or (5c) be transferred to the KBD for determination as a damages claim?

II. THE LEGAL LANDSCAPE

IRCs

If you are in the UK as a person who is subject to immigration control, there are three ways in which your accommodation can be provided by the Home Office. One is where you are being detained in an IRC. Immigration detention powers can also apply in a prison, but prisons are the Ministry of Justice's responsibility. In IRCs there are arrangements to protect vulnerable individuals. DSO 01/2022 addresses self-harm and suicide prevention. DSO 08/2016 addresses management of AARs (adults at risk), with three AAR “levels” applied by the Home Office in weighing the evidence of risk and harm. By reg. 12 of SI 2012/2996, the provision of specified healthcare services in IRCs is the responsibility of the NHS authorities known as “Healthcare”.

Safe-Release Planning (including Potential Care and Support Needs)

If you are a vulnerable person being released from an IRC, DSO 08/2016 addresses the planning of your Safe-Release, including (§63) in light of your potential care and support needs. Here are §§62–64:

62. In cases where IRC or Healthcare staff have significant concerns about planned releases who are considered to be at risk, for example if the detained individual has a contagious disease or requires a mental health follow up, a multi-disciplinary meeting (or teleconference if a physical meeting is not possible due to time constraints), must be arranged by the local DET team to agree a plan to safely release the individual. This should be expedited to avoid any impact on release timings. The attendees to this multi-disciplinary meeting will depend on the circumstances and needs of the individual, as an example, attendees might include representatives from the local DET team, Compliance team, Foreign National Offender Senior Caseworker, National Removal Command Senior Caseworker, Border Force Caseworker, contracted supplier staff and Healthcare staff. The list is not exhaustive and any team that can positively contribute to these meetings are...