QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
ON THE APPLICATION OF
(1) OLEH HUMNYNTSKYI
(3) WP (POLAND)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant
|SECRETARY OF STATE FOR JUSTICE
||Interested Party in case CO/307/2019
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
Crown Copyright ©
Mr Justice Johnson:
(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.
The statutory framework
Provision of accommodation – section 4(1)(c) Immigration and Asylum Act 1999
Bail under Immigration Act 2016
Provision of accommodation under Schedule 10 of the Immigration Act 2016
"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."
(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 thinks that there are exceptional circumstances;
(5) The Secretary of State thinks that those exceptional circumstances justify the exercise of the power to grant accommodation.
(1) A person has been released on immigration bail, with the Secretary of State having responsibility for the management of that bail, or where the Tribunal has granted bail with a residence condition, and
(2) The person is, by reason of lack of accommodation, at real and immediate risk of suffering inhuman and degrading treatment within the meaning of Article 3 ECHR, and
(3) The person is not able themselves to avoid that risk from materialising (for example, by securing accommodation from another source, or returning to their country of nationality).
Secretary of State's Schedule 10 policy
The unpublished guidance
Exceptional circumstances include assessment of risk of harm associated with FNOs. These are defined as:
● FNOs who are assessed by Her Majesty's Prison and Probation Service as being a high or very high risk of causing harm to the public and granted bail
● FNOs at high risk of harmful reoffending against an individual – for example, offences of domestic burglary, robbery, sexual assaults and violence
● If the FNO has nowhere suitable accommodation in accordance with their probation licence and/or multi-agency public protection arrangements (MAPPA) for a limited period, or otherwise at the discretion of the Home Secretary in the interest of public protection
Special Immigration Appeals Commission (SIAC) Cases
Exceptional circumstances include where bail conditions, including a residence condition, are imposed by the Special Immigration Appeals Commission (SIAC).
Article 3 cases
Article 3 of the European Convention on Human Rights (ECHR) is the prohibition on torture or inhuman or degrading treatment or punishment.
You must assess whether it is appropriate to consider providing Schedule 10 accommodation support to FNO's that do not fit within the categories above in the following circumstances:
● they do not have adequate accommodation or the means of obtaining it (whether from a public body under different legislative powers or through their own efforts)
● the provision of accommodation is necessary in order to avoid a breach of their human rights
The first step in determining whether accommodation or support may need to be provided for human rights reasons is to note that in ordinary circumstances a decision that would result in a person sleeping rough or being without shelter or funds, will usually be considered inhuman or degrading treatment contrary to Article 3 of the ECHR.
You must assess whether the consequences of a decision to deny a person accommodation would result in a person suffering such treatment. To make that assessment you must consider if the person can obtain accommodation and support from charitable or community sources or through their families or friends.
In situations in which you conclude that there is no support from any of these sources you must arrange accommodation for the FNO in order to avoid a breach of Article 3 of the ECHR.
However, you must only provide accommodation for these reasons if it is clear that the FNO cannot reasonably be expected to leave the UK.
The expectation is that this will cover a FNO with serious physical or mental health problems who would not otherwise fall to be supported under other arrangements."
"It will not usually be necessary to impose a residence condition. A residence condition should only be imposed where residence at a particular address is necessary to enable a high level of contact or mitigate against a serious risk of non-compliance. This is more likely where the person poses a high risk of harm to the public on the basis of criminality or in cases concerning national security.
If you conclude that a residence condition would not be appropriate, then it is not necessary to go on to consider whether the individual would be eligible for Schedule 10 accommodation. However, the Tribunal may still require an address in the event that the FNO makes an application for bail. You should therefore seek to establish whether or not the FNO would have a private release address at which he or she could be accommodated if bailed."
(1) Can the FNO provide own address? If not:
(2) Do you intend to impose residence condition? If not then "release to no fixed abode". If you do intend to impose a residence condition then:
(3) Does the FNO meet threshold for Schedule 10 support?
(1) Each iteration of the published policy (see paragraphs 29, 32 and 39 below) suggests that Article 3 cases are within their scope (and that consideration of Article 3 rights is not limited to high risk FNOs).
(2) Correspondence from shortly after the implementation of the policy suggests that Article 3 cases were intended to be within its scope (see paragraph 42 below).
(3) The Secretary of State has accepted that the decision in A's case amounts to a breach of her policy. A was not a high risk FNO. That acceptance therefore only makes sense if the protective ambit of Article 3 cases was not intended to be restricted to high risk FNOs.
The published Schedule 10 guidance
"The exceptional circumstances are:
SIAC cases [an explanation is then given of SIAC cases]
Harm cases [an explanation is then given, in effect those who are assessed as being at a high or very high risk of causing serious harm to the public]
European Convention on Human Rights: article 3 cases
It may be appropriate to consider using the power to provide accommodation under paragraph 9 to accommodate individuals who do not fit within the categories above, but only usually where the following circumstances apply:
● they do not have adequate accommodation or the means of obtaining it…
● the provision of accommodation is necessary in order to avoid a breach of their human rights
The consideration of whether the provision of accommodation is necessary to avoid a breach of the person's human rights will usually require an assessment of whether they are likely to suffer inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights (ECHR) if they are not provided with accommodation and other assistance to meet their daily living needs while they are in the UK. However, decision makers should only provide accommodation for these reasons if it is clear that the person cannot reasonably be expected to leave the United Kingdom.
The expectation is that this will cover people with serious physical or mental health problems who would not otherwise fall to be supported under other arrangements.
Decision makers should also note that it will not be appropriate to use this power to accommodate the following categories of migrant:
• other migrants who have dependent children: if the family cannot obtain adequate accommodation it will usually be available through the duties local authorities have to safeguard and promote the welfare of children under Section 17 of the Children Act 1989, or the equivalent in the devolved administrations
• migrants accommodated under the provisions of the Care Act 2014, or the equivalent in the devolved administrations – generally, they will have been accommodated because they have a serious disability, exceptionally, however, accommodation may be arranged temporarily under the power in paragraph 9 whilst the case is referred to a local authority and pending a decision by that local authority as to whether the duty to provide accommodation under the Care Act 2014 (or equivalent) applies"
The power may be exercised only if the Secretary of State thinks that there are exceptional circumstances to justify doing so. The types of cases where exceptional circumstances will normally justify providing accommodation under paragraph 9 of Schedule 10 are SIAC cases, Harm cases and European Convention on Human Rights: Article 3 cases."
"Individuals who are SIAC cases or foreign national offenders are not required to make a separate request for accommodation under paragraph 9 of Schedule 10. They should set out their needs in the bail application form, B1 or BAIL 401 as appropriate, and these will be assessed as part of the bail consideration process. All other individuals who are not asylum seekers or failed asylum seekers will need to set out the reasons why they consider that accommodation should be provided under paragraph 9 of Schedule 10 on form BAIL 409, in addition to their application for bail. This applies to those in immigration detention and those on immigration bail in the community. The form is included in the immigration bail pack given to detainees on induction to detention and is also available on GOV.UK for all who need to use it. The completed BAIL 409 must be sent to the address shown on the form."
"Detainees must also be given BAIL 403 during their induction to detention. This contains information on:
• how to apply for immigration bail accommodation (using form BAIL 409)"
Correspondence about the operation of the policy
"We have received bail summaries that state that our clients are not entitled to exceptional circumstances accommodation as they have not shown that such circumstances exist. Yet:
● There is no process for applying to the Home Office for such accommodation and support.
● The new Home Office bail policy makes some sweeping statements about persons who will be excluded from support and seems to attempt to restrict entitlement to certain categories.
● The policy seems to accept the Limbuela interpretation that a person would face an Article 3 violation if left homeless and destitute, but it does not introduce any procedure for such individuals who may need to apply for bail." [Emphasis in original].
"There is no separate process for applying for "exceptional circumstances" accommodation. Exceptional circumstances only ever become a consideration if:
● bail is granted subject to a condition requiring a person to reside at a specified address; and
● the person would not be able to support themselves at the specified address if the Secretary of State does not exercise the power to provide support.
In cases in which the Secretary of State is proactively considering granting bail, she will assess whether a relevant residence condition is necessary and will make a decision as to the exercise of the paragraph 9 power on the basis of the facts that she has available.
In cases in which the individual is making an application for bail, either to the Secretary of State or to the Tribunal, it is for the individual to make clear that a relevant residence condition is sought, and that the test in paragraph 9 (including the "exceptional circumstances" test) would be made out if it were granted.
…In cases in which the Tribunal decides to impose a residence condition that satisfies the requirements of the test in paragraph 9, it will be for the Secretary of State to decide subsequently if there are exceptional circumstances."
"We are in receipt of your letter… in which you have requested for your client to be sourced with accommodation provided by the Home Office under Schedule 10, Residence Condition. Unfortunately, the Home Office cannot accept any "applications" for Schedule 10 from representatives. There is no process for a Representative to apply for Schedule 10 as it is the Home Office's decision to decide whether a Residence Condition under Schedule 10 is suitable or not."
"Your letters have highlighted some issues with access to accommodation from immigration detention, which we are working to resolve. This is taking longer than anticipated but we want to make sure we get it right."
The operation of the policy
"The Claimant was assessed as being medium risk and therefore did not qualify. Harm indicators are set out in the guidance."
"Only those foreign national offenders who have been assessed as high harm of risk to the public, qualify for Schedule 10 accommodation.
…based on the offender manager's assessment, a referral to Schedule 10 was not made from the SSHD's criminal casework unit. The First Defendant properly applied their own policy in respect of the Claimant. Such accommodation is only available to foreign national offenders at a high or very high risk of causing serious harm to the public or reoffending. The Claimant presents only a medium risk of harm."
"because the majority of persons to whom the exceptional circumstances apply are national security cases or foreign national offenders convicted of criminal offences, it was not considered appropriate [to introduce an applications process] - the decision to provide support if necessary based on the assessment of whether the FNO is eligible, is made by the Secretary of State."
"The preliminary assessment of an FNO's eligibility under Schedule 10 is carried out in the first instance by the FNO's caseowner in the Criminal Casework Directorate… If the CCD caseowner has satisfied themselves that no other form of support is available on release, and that the FNO is a high harm case, they will consider the provision of Schedule 10 as a last resort, but only where they are satisfied that the initial essential criteria (eg high or very high harm, destitution) have been met.
As part of this assessment, the CCD caseworker will ask the FNO's offender manager at HM Prison and Probation Service ("HMPPS") to complete a release proforma in relation to the FNO…. This contains up-to-date risk/harm information… As explained previously, the FNO must present a high or very high risk of causing serious harm to the public… as well as meet the other criteria set out in the Secretary of State's policy."
"If, having received the completed proforma from the HMPPS, the explicit criteria appear to be met, the CCD caseowner will refer the FNO's proforma on to the Criminal Casework Accommodation Team ("CCAT") for further consideration. … If the CCAT refuses to grant accommodation, the CCD caseworker will likewise be notified of the explanation… If accommodation is refused, the CCD will complete a bail203 form to confirm the refusal decision."
The facts of the three cases
Mr Humnyntskyi's case
"…were our client to be released, he would become both destitute and homeless. This we contend would be a breach of his rights as protected under Article 3 of ECHR, by virtue of placing him in a position both degrading and inhuman.
We therefore maintain that [Mr Humnyntskyi's] circumstances are exceptional and justify being provided with an address sourced by the Home Office, as envisaged under Schedule 10 of the Immigration Act 2016…"
"Conditional bail granted on the basis that the applicant is able to provide a suitable residential address approved by the HO, and the probation service, if necessary, within 14 days. Alternatively, if the HO provide accommodation within 14 days, then that will be acceptable. If no suitable accommodation has been provided on either basis within 14 days, this grant of conditional bail lapses, and no further judicial decision is required to confirm that it has come to an end.
Depending upon the circumstances, if bail lapses after 14 days, there may be grounds to submit a further bail application on the grounds of material change in circumstances. The applicant has been in detention for a lengthy period of time and his continued detention is approaching the outer limits of reasonableness, under the circumstances."
"Thank you for the attached request from BID in relation to Schedule 10 accommodation, however we are unable to accept requests for Schedule 10 support from representatives. If you think that Mr Humnyntskyi meets the criteria for Schedule 10 support then you have to complete the release pro forma and send that over to our team to action. If you don't think that he is eligible then you can complete a Bail.203 and send to the representatives."
"Based on the above, it is considered that at present there is no obligation for the Home Office to provide accommodation."
"With regards to Schedule 10 accommodation Mr. H is not eligible for this as he has been assessed by probation as MEDIUM risk of HARM to the public."
"Bail is granted in Principle. The Respondent shall seek suitable accommodation, in discussion with the Probation Service, but the Applicant is not to be released until Probation has approved the address; if not provided by 7th December 2018 the decision lapses. Such accommodation to be compatible with any conditions of the supervising Probation Of?cer and any other Court/Police orders or notices."
"5 December 2018 contacted CCAT Schedule 10 team, to ascertain whether he is eligible for Schedule 10 accommodation, as probation have assessed his risk of harm as MEDIUM. Application for Schedule 10 accommodation are only for HIGH harm cases. Forwarded the letter from BID in relation to this."
"…the criteria for consideration of Schedule 10 support is that the applicant must meet both of the following criteria:
● Subject to a residency condition
● High or very high harm
It is noted that the applicant claims he is subject to a residency condition, however a CID note… clearly states this applicant is not, and is also of "medium" risk of harm, and will not therefore be eligible under Schedule 10."
"your client was assessed by his offender manager… as Medium Risk of Harm… In view of his medium risk of harm, your client is not eligible under the published guidance for Schedule 10 support.
Therefore, a referral to CCAT Schedule 10 accommodation was not made to them by criminal casework, as he does not meet the requirements of the published guidance."
"The applicant has been assessed by the offender manager as MEDIUM risk of harm to the public. Therefore does not meet the criteria for Schedule 10 accommodation, only those applicants who have been assessed by probation as HIGH harm offenders can apply for Schedule 10 accommodation. The applicant does not qualify for this."
"Reside permanently at an address approved by the supervising officer and obtain the prior permission of the supervising officer for any stay of one or more nights at a different address…"
"The Applicant has no-one to support him financially or with accommodation if he is released. He requests that he be provided with accommodation under paragraph 9 of Schedule 10 to the Immigration Act 2016 on the basis that his rights will otherwise be breached under Article 3 ECHR. He would end up street homeless if released without such support.
Please note that our client is still subject to licence conditions and he would be in breach of his licence if he were released to no fixed abode. …"
"- Not exceptional due to medium harm & reoffending
- Despite my request for tagging this does not meet criteria
- It does not appear that any other form of support would be suitable either at the present time."
"On checking this case would not appear to meet the criteria for s10 as not exceptional due to medium harm and reoffending and despite request for tagging does not meet criteria".
"…A stated the Home Office are driving him to suicide, that he has no options left as the South African officials have refused to accept him back and he was stuck here indefinitely. Mr A stated he felt that there is no light at the end of the tunnel and he was at the end of his tether. He claimed to have feelings of self harm. He also questioned how the Home Office could be so inhumane. As a result of this, he was placed on an ACDT."
"It has been decided that you should remain in detention because…
- There is insufficient reliable information to decide on whether to grant you immigration bail.
This decision has been reached on the basis of the following factors…
- You do not have enough close ties (eg family or friends) to make it likely that you will stay in one place.
- You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK."
"I explained that the caseowner would now be reviewing her case and making a decision on whether she will be detained or not. She got very irate and said it was her human right not to be put on the street, she is homeless and has nowhere to go and insisted she should be kept in prison until the conclusion of her appeal.
…Having calmed her down a couple of times and managed to get from her that she has nowhere to go and she believes it is the UK Govts responsibility to either find her some accommodation or allow her to stay in prison (she was very clear that she only want to stay in prison and not a detention centre) I eventually gave up, as she was becoming more angry and agitated.
It is possible that I may still be able to get the bio-data completed on another day, but today she was far too hostile and just wouldn't listen (I had when I last saw her showed her how to book an appointment for the link, where she can get help on accessing emergency accommodation etc).
She appears to be suffering from the previous substance abuse and her moods swing quickly and she also struggles to either listen or understand simple things.
I think if she is released, it is likely she will re-offend."
"14 day detention review authorised and on doc.gen.
Subject has lodged an appeal, appeal bundle is required at Lunar House by 25/1/2020.
Subject has stated she is homeless and has refused to complete a bio data, does not want to leave the prison until she has secured accommodation."
"very odd behaviour whilst screening, constantly talking to herself (…) sudden body movements and twitching (…) is very hyper… previous mental health issues…".
"Healthcare further advised that it is highly likely that she will be sectioned under the Mental Act and transferred to a mental institute within days or weeks.
Although CCD have informed us that they intend to grant bail because she has lodged an appeal, she cannot be released from detention at this stage for safeguarding reasons."
"Currently no sign of acute mental illness noted and is happy for her to be detained here in Yarlswood and will not need hospitalization.
Was homeless and maybe taken advantage of by strangers when released to no fix abode."
"We put the Home Office on notice that if our client is released to homelessness, that decision will be swiftly subject to a judicial review application. Our client is an incredibly vulnerable woman whom has mental health issues which were recently treated as an hospital inpatient. She has been physically and sexually assaulted whilst previously homeless and destitute in the UK.
Therefore, we apply for Schedule 10 accommodation to be urgently provided to our client. It is not appropriate to keep her in detention whilst she has in-country appeal ongoing, there are alternatives to detention and due to her vulnerabilities; however it would be a breach of her human rights under Article 3 ECHR if she is released by the Home Office from detention to the streets."
"Patient claims to be a victim of torture and I believe that based on her accounts she may be a victim of torture. Her scars are consistent with her history of events. Although she is currently stable in detention, I do believe that she may deteriorate with prolonged detention. She is receiving mental health support from both the counselling service and the consultant psychiatrist."
"They subsequently informed us that on the information your representatives had thus far supplied it was unlikely that you would be assessed as High Harm and due to lack of medical evidence that would show how you meet the Vulnerability assessment. The application was therefore deemed invalid."
"… As to the ongoing detention, since the coming into force of our new immigration bail policy, it has not been possible for detainees and their representatives to seek release from detention in general correspondence. They are required to complete a Bail 401 application. That is why she was supplied with a bail pack on 15 January 2020 and explained to her by an Engagement Officer at the Detention centre. Any request for a Schedule 10 accommodation should be included in the bail application. We apologise if our correspondence did not reiterate that point. In any event it has always been open to the subject and those representing her to seek bail from the First-tier Tribunal.
… there is no immigration bail application pending before us and this will remain the position unless and until a completed Bail 401 application is put before us…"
"We have been informed from the information at hand, that it is unlikely that [the] applicant would be assessed as High Harm and there is no medical evidence before us at present that shows how she would meet the Vulnerability assessment. However, if supporting evidence is provided as advised, the Home Office can assess this information if bail in principle has been agreed.…"
The individual claims
(1) Humnyntskyi v SSHD
Is Mr Humnyntskyi's claim an abuse of the court's process?
"a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself. That, as it seems to me, is what happened in the present case. The trial was "hijacked" by the need to investigate what documents were false and what documents had been destroyed. The need to do that arose from the facts (i) that the petitioners had sought to rely on documents which Nigel Tobias had forged with the object of frustrating a fair trial and (ii) that, as the judge found, Nigel Tobias was unwilling to make a frank disclosure of the extent of his fraudulent conduct, but persisted in his attempts to deceive. The result was that the petitioners' case occupied far more of the court's time than was necessary for the purpose of deciding the real points in issue on the petition. That was unfair to the Blackledge respondents; and it was unfair to other litigants who needed to have their disputes tried by the court."
"In one sense none of the claimants appeals very much to a sense of the merits: and some of them very decidedly do not. One might have thought that some kind of reciprocity, in the form at least of seeking to behave in a responsible and law abiding way, should be expected from someone in whose case a country has been prepared to grant leave to enter or remain. Not so…
… But… [t]hose unlawfully detained (if they are unlawfully detained) should have the appropriate remedy, even if "undeserving", no less than those unlawfully detained however "deserving". The law cannot discriminate in such a context: and a broad, and in some respects subjective, appeal to "the merits" should not be permitted to subvert legal certainty and the proper application of firmly established principles."
Is Mr Humnyntskyi's claim academic?
Was Mr Humnyntskyi unlawfully denied Schedule 10 accommodation?
"is a power coupled with a duty… to deal fairly and rationally with an application… is not, in practice, a materially different duty from a duty to make reasonable efforts to provide accommodation [where the person concerned would otherwise be likely to remain in detention.]"
Was Mr Humnyntskyi unlawfully detained?
"the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result - which is not the same as saying that the result would have been different had there been no breach."
"…Detention cannot be justified on some putative basis, unrelated to the actual reasons for it, on which the detention might retrospectively be said to be warranted. Simply because some ground of lawfully detaining may exist but has not been resorted to by the detaining authority, the detention cannot be said, on that account, to be lawful.
…if the policy which is applied is unlawful, the exercise of discretion is unlawful. The individual has not had applied to his case the proper exercise of discretion to which he is entitled. The application of an unlawful policy will therefore ipso facto render the decision to detain unlawful."
(1) In R (Qarani) v Secretary of State for the Home Department  EWHC 507 (Admin) Philip Mott QC, sitting as a deputy High Court Judge, considered that a week was sufficient to organise accommodation (longer than the 48 hours that might otherwise have been appropriate, because the offender was a sex offender who was subject to residence notification requirements and MAPPA involvement) and that 3 weeks was too long (see at ).
(2) In R (AC (Algeria)) v Secretary of State for the Home Department  EWCA Civ 36 the Court of Appeal considered that two weeks "would have been ample" for a serious sex offender who could only be released to secure conditions, in the context of a history which showed that the Secretary of State had known for many months that secure conditions would be required.
(3) In R (Merca) v Secretary of State for the Home Department  EWHC Admin 1479 Fordham J held that a period longer than 2 weeks (which was 7 days from the date of his judgment) would be unjustified, even taking into account that the Covid-19 pandemic had given rise to "special difficulties" (see at -).
(4) Orders for interim relief typically require the provision of accommodation within 7 days or less – see the order of Timothy Brennan QC (sitting as a deputy High Court Judge) in A's case (2 days), and the order of Cavanagh J in WP's case (7 days). Sometimes, where there is pressing urgency and no reason to consider that compliance is impracticable, such an order might take effect within a matter of hours.
Does the Home Secretary owe an obligation to liaise with Secretary of State for Justice in relation to residence requirements?
"What (if any) are the SSHD's legal obligations where an FNO detained under the Immigration Acts cannot be released on bail owing to the combination of (i) a residence requirement imposed under s256AA of the Criminal Justice Act 2003 and (ii) the non-provision of Schedule 10 accommodation?"
Article 5 ECHR
Did the errors in Mr Humnyntskyi's case arise from systemic failings?
(1) There were multiple errors by different caseworkers over a protracted period of time. It was not a single error by a single caseworker.
(2) Two separate requests for accommodation went missing (see paragraph 64 above) and were not addressed. Two further requests went unanswered (see paragraphs 68 and 70 above). This is consistent with the policy not having a secure mechanism by which representations can be made in a way that ensures they are considered.
(3) The errors are not isolated and different and random. They are repeated and consistent and form an internal pattern. They are of the type that might be expected if they are due to a failing in the system.
(4) Thus, the failure to consider whether there were exceptional circumstances (eg by reason of the post-sentence residence condition) is consistent with the three explicit categories in the published policy (SIAC, high harm FNO and Article 3) being treated as a closed list (as the natural wording of the policy suggests, at least for versions 1-3), such that the discretion to consider other cases as exceptional was unlawfully fettered.
(5) The decision that lack of a high risk of harm is determinative of an application for accommodation is consistent with the possible vice of the unpublished guidance identified by Ms Dubinsky (see paragraph 25 above).
(6) There are repeated references in the records to risk of harm being a determinative factor (see paragraphs 68, 70 - 72 and 77 above).
Is Mr Humnyntskyi entitled to substantial (as opposed to nominal) damages?
(2) A v SSHD
Is A's claim academic?
"The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."
"…academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the court. The first condition is in the words of Lord Slynn in Salem… that "a large number of similar cases exist or anticipated" or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequence would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs."
"For the reasons given by the Claimants I have concluded that I should not decline to consider the applications on the grounds that they have become academic. The resolution of their individual applications may well be material as and when it comes to the question of the appropriate remedy. However, their cases do illustrate generic issues which, the Claimants say, demonstrate the unlawfulness of the SSHD's policy and these can, at least to some extent, still be appropriately addressed. If this occasion is not taken to consider them, there is a risk of further delay and potential injustice before another case can reach a final hearing. I note that R (Salih) v Secretary of State for the Home Department  EWHC 2273 (Admin) is another example of a case where the Court considered the lawfulness of the SSHD's general policy even though the individual claimants had already achieved the accommodation and support which they had wanted when the proceedings commenced – see Salih at ."
(1) He has been given permission to pursue the claim (and nothing has changed since the grant of permission);
(2) The claim has been fully argued;
(3) The evidence of BID and GDWG (and the fact that there are two other cases before the Court) suggests that these are recurring issues. If they are not addressed in this case it is likely that other similar claims will be brought (I was told other claims already had been brought) and the issues would soon need to be addressed in another case.
(4) The common challenge to the policy is, by its nature, not fact sensitive.
(5) The Secretary of State has accepted that the decision making in A's case was unlawful. She asserts that this was an aberrant and isolated error. But there is no evidence that anything has been done to address the error.
Was the Secretary of State's decision to refuse to provide accommodation compatible with the prohibition on inhuman or degrading treatment pursuant to Article 3 ECHR?
"ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim."
"with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. It is not necessary that treatment, to engage article 3, should merit the description used, in an immigration context, by Shakespeare and others in Sir Thomas More when they referred to 'your mountainish inhumanity'."
"It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed."
"Most of us will have slept out of doors on occasion; sometimes for fun and occasionally out of necessity. But these occasions lack the features of sleeping rough that these respondents had to endure under the statutory regime imposed on them. Not only did they have to face up to the physical discomfort of sleeping rough, with a gradual but inexorable deterioration in their cleanliness, their appearance and their health, but they had also to face up to the prospect of that state of affairs continuing indefinitely. People can put up with a good deal of discomfort and privation if they know its duration is reasonably short-lived and finite. Asylum seekers caught by section 55(1) do not have that comfort. Growing despair and a loss of self-respect are the likely consequences of the privation to which destitute asylum seekers, with no money of their own, no ability to seek state support and barred from providing for themselves by their own labour are exposed."
Is A entitled to damages?
"In relation to any claim for an award of compensation the starting point for the analysis is to answer the question whether a non-financial remedy is necessary "just satisfaction"? In the present case I have already made declarations in favour of each Claimant to the effect that their Convention rights have been violated… The importance of declaratory relief in an appropriate case is not to be underestimated. It provides a formal, reasoned, vindication of a person's legal rights and an acknowledgment in a public forum that they have been wronged. It is an integral part of the democratic process whereby a public body can be called to account. Case law suggests that there are (at least) two components to the question whether a financial award should supplement a declaration. First, it is necessary to consider whether there is a causal link between the breach and the harm which should appropriately be reflected in an award of compensation in addition to a declaration? Secondly, and regardless of the answer to the first question, it is necessary to consider whether the violation is of a type which should be reflected in a pecuniary award?"
Did the errors in A's case arise from systemic failings?
(1) This was not a single error at a single point in time – there were multiple errors made at discrete points over a period of months;
(2) It appears that the errors were not made by a single caseworker. The redaction of the records makes it impossible to be certain, but it appears that the errors were made by different officials in different teams.
(3) The errors were similar to those made in Mr Humnyntskyi's case, even though they apparently involved different officials.
(4) As in Mr Humnyntskyi's case the errors are repeated, consistent and form a pattern.
(5) As in Mr Humnyntskyi's case, there was no response to accommodation requests (see paragraph 94 above), no involvement in the decision making process (see paragraph 88 above), no notification to A of the reasons for the decision (see paragraph 88 above), treating a "high harm" test as determinative, or otherwise simply asserting that the test was not met without giving reasons (see paragraphs 87, 90, 92 and 98 above), and not apparently considering the need to provide Schedule 10 accommodation when conditional bail is granted to a person who will otherwise be homeless on release.
(6) The references to section 4 of the 1999 Act (see paragraphs 96 - 97 above) are striking. It must have been obvious that section 4 of the 1999 Act did not apply (there is no suggestion that A had ever applied for asylum, or that anyone mistakenly thought that he had applied for asylum). They could be aberrant errors. However, they are also consistent with officials struggling to make the Schedule 10 process work in a fair manner, and reaching for section 4 (which had an application form, a process, and a right of appeal) as a make-do substitute.
Compliance with order for interim relief
(3) WP (Poland) v SSHD
Is WP's claim academic? If so, does it meet the criteria for continuing an academic claim
Application to adduce psychiatric evidence
Is WP entitled to pursue a claim that her detention was in breach of EU law?
Was WP lawfully detained?
"2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted."
"• the date of removal is fixed, or can be fixed quickly, and is within a reasonable timescale and the individual has failed to comply with reasonable voluntary return opportunities, or if the individual is being detained at the border pending removal having been refused entry to the UK
• they present a level of public protection concerns that would justify detention, for example, if they meet the criteria of foreign criminal as defined in the Immigration Act 2014 or there is a relevant national security or other public protection concern
• there are negative indicators of non-compliance which suggest that the individual is highly likely not to be removable unless detained"
Did the errors in WP's case arise from systemic failings?
(1) There is no evidence of any proactive consideration of whether WP (who may or may not have been considered to be a FNO) should be afforded Schedule 10 accommodation (see paragraphs 102 - 116 above).
(2) There was no timeous response to WP's solicitor's request for Schedule 10 accommodation (see paragraphs 118 - 119 and 127 above).
(3) The requests for Schedule 10 accommodation were flatly rejected as "invalid" with reference to the fact that WP was not a high risk (see paragraphs 127, 129 - 130 and 133 - 134 above).
(4) WP's solicitor was belatedly (and wrongly) told that a request for Schedule 10 correspondence could not be made in correspondence (see paragraph 131 above).
(5) WP's solicitor was not able to make representations directly to the decision maker (see paragraph 135).
(6) The Secretary of State was ready to release her to "no fixed abode" (see paragraph 135 above). This is consistent with the decision making process prescribed in the unpublished guidance, including the wording of "release to no fixed abode" (see paragraph 24(2) above). Yet, on the facts, this would have likely been a breach of WP's rights under Article 3 ECHR.
The Common Claims
Common Claim 1: Fairness
(1) There is no mechanism for affording FNOs a fair opportunity to make representations before a decision on Schedule 10 accommodation is made.
(2) There is no mechanism for informing FNOs that the SSHD is minded to refuse Schedule 10 accommodation and of the reasons why, so as to enable them to make representations in response.
Is it open to the Claimants to advance complaints of procedural fairness?
"The central questions in this claim are:
(3) Is the Defendant operating a fair and rational system to determine eligibility for Schedule 10 accommodation?
(4) Is the Defendant under a duty to elicit representations or applications and to give a decision and written reasons where he refused Schedule 10 accommodation?"
The requirements of fairness in this context
"The factors include the nature of the function under consideration, the statutory or other framework in which the decision-maker operates, the circumstances in which he or she is entitled to act and the range of decisions open to him or her, the interest of the person affected, the effect of the decision on that person's rights or interests, that is, the seriousness of the consequences for that person. The nature of the function may involve fact-finding, assessments of matters such as character and present mental state, predictions as to future mental state and risk, or policy-making. The decision-maker may have a broad discretion as to what to do, or may be required to take into account certain matters, or to give them particular or even dispositive weight. The decision may affect the individual's rights and interests, and its effect can vary from a minor inconvenience to a significant detriment."
"the fundamental requirement of the second limb of procedural fairness is to give an opportunity to a person whose legally protected interests may be affected by a public authority's decision to make representations to that authority before (or at least usually before) the decision is taken."
"In my judgment, a decision, even a provisional decision, that a detainee is not suitable for an immediate offer of Initial Accommodation is of such significance that fairness does require the SSHD to tell the applicant that is what she has in mind and why. That is because of the stark difference between the time that it takes to offer Initial Accommodation as a bail address (only a few days) and the delays that can occur if Initial Accommodation is not offered (on the evidence, delays of weeks or months). Fairness also requires the SSHD to take in account any presentations that are made in response."
(1) The FNO is able to make representations as to why Schedule 10 accommodation should be provided (see paragraph 263 above).
(2) The FNO is able to access information setting out the criteria that will be applied when deciding whether to provide Schedule 10 accommodation, so as to know the target for representations (see Lumba per Lord Dyson JSC at -, and, particularly, at : "There is a… right to know what the currently existing policy is, so that the individual can make relevant representations in relation to it."). For the same reason, the FNO must be able to access information setting out the mechanism by which representations should be made. This does not necessarily mean that the Secretary of State must separately notify each individual FNO of the criteria – a more general form of publication may be sufficient – see Salih v Secretary of State for the Home Department  EWHC 2273 (Admin) per Stanley Burnton J at .
(3) The representations made by the FNO are (so far as they are potentially relevant) taken into account by the decision maker (otherwise the right to make representations is pointless).
(4) The decision is to be considered in accordance with the Secretary of State's policy (see Lumba per Lord Dyson JSC at : "The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt…").
(5) The FNO is notified of the decision. Mr Metcalfe agreed that it was necessary to notify the FNO of the decision when it was reached by CCAT on the merits. But he contended that there was no such obligation where the caseworker made the preliminary decision not to refer the case to CCAT. I see no ground for the distinction: the net effect is the same for the FNO – Schedule 10 accommodation is not provided. In both cases, procedural fairness requires that the decision is communicated to the FNO so that the FNO knows where they stand and can decide whether to make further representations to the Secretary of State, or to make a bail application, or to challenge the Secretary of State's decision.
How is systemic unfairness established?
"I do not think it is necessary or useful to analyse the various cases referred to. In my view the correct approach in the circumstances of the present case is, straightforwardly, that the policy/guidance … will be unlawful, if but only if, the way that they are framed creates a real risk of a more than minimal number of [unlawful decisions]. I should emphasise, however, that the policy should not be held to be unlawful only because there are liable, as in any system which necessarily depends on the exercise of subjective judgment, to be particular "aberrant" decisions—that is, individual mistakes or misjudgments made in the pursuit of a proper policy. The issue is whether the terms of the policy themselves create a risk which could be avoided if they were better formulated."
Is the Schedule 10 policy systemically unfair?
Common Claim 2: Fettering discretion
"When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise."
Has the Secretary of State unlawfully fettered her discretion?
(1) It is systemically unfair. It creates a real risk that unfair decisions will be made in a significant number of cases. Those risks materialised in the cases before the Court.
(2) In its operation it fetters the Secretary of State's discretion to consider whether the situation of an individual applicant amounts to exceptional circumstances. That unlawful fetter was applied in the cases before the Court.
UPON the Claimants' claims for judicial review
AND UPON the Claimants' applications to amend their statements of case
AND UPON the Third Claimant's (case CO/1345/2020) application for permission to rely on an addendum expert report of Professor Katona dated 6 July 2020
AND UPON CONSIDERING the written submissions and evidence filed by the parties
AND UPON HEARING Laura Dubinsky of Counsel for the Claimants and Eric Metcalfe of Counsel for the Defendant
AND UPON judgment being handed down on 21 July 2020
IT IS DECLARED THAT:
1. The Secretary of State's policy and practice for granting Schedule 10 accommodation to FNOs are unlawful because:
(a) They are systemically unfair.
(b) They fetter the Secretary of State's discretion to consider whether the situation of an individual applicant amounts to exceptional circumstances.
2. In the case of the First Claimant (CO/307/2019), the First Claimant was unlawfully detained between 1 November 2018 and 23 January 2019 by reason of material public law errors in determining his eligibility for Schedule 10 accommodation.
3. In the case of the Second Claimant (CO/144/2020), the Defendant's failures to consider and grant the Second Claimant's requests for Schedule 10 accommodation and bail variation were unlawful; and the Second Claimant's street homelessness from 23 March 2019 until 7 February 2020 breached his rights under Article 3 ECHR for which he is entitled to damages.
4. In the case of the Third Claimant (CO/1345/2020), the Defendant's failures to consider and grant the Third Claimant's request for Schedule 10 accommodation were unlawful and the Third Claimant was unlawfully detained from 10 January 2020 to 22 April 2020 for which she is entitled to substantial damages.
AND IT IS ORDERED THAT:
5. The Claimants application to amend their statements of case is, by consent, granted.
6. The Third Claimant's (case CO/1345/2020) application to adduce the addendum expert report is dismissed.
7. Paragraph 2 of the order of Timothy Brennan QC is set aside insofar as (and only insofar as) it would otherwise prohibit publication of anything that is contained in the Court's judgment, including the First Claimant's nationality and the town in the UK in which he resided.
6. The quantum of damages to which the Second Claimant is entitled for breach of his rights under Article 3 ECHR is to be determined at a hearing before a
Master if not agreed. The quantum determination in the Second Claimant's case is stayed until 15 October 2020 to enable the parties to endeavour to reach a settlement.
7. The quantum of damages to which the Third Claimant is entitled for her unlawful detention from 10 January until 22 April 2020 is to be determined at a hearing before a Master if not agreed. The quantum determination in the
Third Claimant's case is stayed until 15 October 2020 to enable the parties to endeavour to reach a settlement.
8. The Defendant shall pay the costs of each of the Claimants, to be assessed if not agreed.
9. There shall be a detailed assessment of each of the Claimants' publicly funded costs pursuant to s.26 Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Dated this 21st day of July 2020