R (AC (Algeria)) v Secretary of State for the Home Department [2019] EWHC 188 (Admin) is about how long the Home Office is allowed to delay providing accommodation following the grant of bail in principle by the First-tier Tribunal. Unfortunately, the answer given by the High Court is at least six months, maybe more if detention continues to be lawful.

The background to this issue is that the First-tier Tribunal has no jurisdiction to order the Secretary of State to provide an address following the grant of bail in principle. Instead, it makes the decision to grant bail in principle with confidence that if the Home Office delays, the High Court will take action to ensure the detainee is released quickly. The decision in this case suggests this confidence is misplaced.

AC was convicted of sexual assault and is subject to deportation action. He had been granted bail in principle by the First-tier Tribunal in August 2018, subject to the Home Office arranging for him to be provided accommodation under Schedule 10 of the Immigration Act 2016.

The Home Office had already taken an internal decision to release him once appropriate accommodation had been found. Incredibly, almost six months later AC was still stuck in detention because the Home Office had not found an address for him. Obviously finding accommodation suitable for someone convicted of a serious offence will take longer than usual, but it should not be an impossible task. British sex offenders are released every day without these issues.

Jeremy Johnson QC, sitting as a deputy High Court judge, accepted the six-month delay despite the fact that the Home Office had only approached two housing providers:

The Secretary of State has taken reasonable steps to secure such accommodation, making requests of two separate accommodation providers and chasing these up when they failed to identify suitable accommodation. The Secretary of State has not acted unfairly or irrationally in his approach. The delay has been due to the inability of his accommodation providers to identify sufficient suitable accommodation and the assessment of the Claimant’s probation officer that such accommodation as has been identified is not suitable (and, possibly, an unhelpful and inappropriate attitude on the part of the Claimant’s probation officer – see paragraph 44 above). Those causes of delay are not directly the fault or responsibility of the Secretary of State.

Having allowed the Home Office to shift the blame to the probation officer, the judge then acknowledges that the system for arranging bail accommodation is not working:

The existing processes involve the Secretary of State asking contractors to provide suitable accommodation and then asking the Claimant’s probation officer to review any accommodation that is put forward. Those processes have been shown, at least in this case, not to work. It is not possible, or necessary, to determine whether that is because the Claimant’s probation officer is “stalling” (see paragraph 44 above) or whether it is because the accommodation that has been identified is inherently unsuitable. What is clear is that there is no ground for optimism that the process will result in suitable accommodation being provided within any reasonable time period. It is neither fair nor rational to continue simply to ask contractors and the Claimant’s probation officer to resolve this issue, in the knowledge that they probably will not do so.

It is not just in this case that the system has been shown not to work. In a bail accommodation decision that Nick reported on last year, the High Court swallowed a 13-month delay, finding that “most of the delay has been as a result of the police and probation service having to assess the properties”. On the other side of the fence, the charity Bail for Immigration Detainees has shown that even applying for bail accommodation in the first place in a Kafkaesque nightmare.

It is extremely frustrating that the High Court has identified that the bail accommodation system is not working but then failed to intervene and order the Home Office to hurry up. Moreover, the analysis has no regard for the added urgency that should be required of the Home Office when there is already a judicial determination ordering it to release the detainee. The judgment betrays a dismissive view of the First-tier Tribunal and the importance of its decisions.