The Immigration Act 2016 brought about extensive changes to the support available to people on immigration bail. Since those changes came into force in January 2018, tens of thousands of people have struggled against the harsh new system, which has kept many indefinitely detained by the Home Office or has left them homeless with no support. 

It is a relief, then, that the High Court in Humnyntskyi v SSHD [2020] EWHC 1912 Admin has put the brakes on the new system, finding that it “does not come close” to a minimum standard of fairness.

In a lengthy judgment, Mr Justice Johnson considered three joined judicial reviews alleging unlawful detention and, in one case, inhuman and degrading treatment under Article 3 of the European Convention on Human Rights (ECHR). After finding in the claimants’ favour in their individual claims, the judge concluded that the system “by some margin” created a risk of unfairness for all those who may be eligible for support under Schedule 10 of the 2016 Act. As the charity Bail for Immigration Detainees (BID) puts it, “this judgment has found the Home Office’s bail accommodation policies and its practices to be individually and systemically unlawful”.

Although the court handed down its decision at the end of July, we have only in the last few days had confirmation that the Home Office has decided not to appeal.

Bail accommodation under Schedule 10

As a bit of background, paragraph 9, Schedule 10 of the 2016 Act replaced the more generous system of support under section 4(1) of the Immigration and Asylum Act 1999. Under the 1999 system, bail accommodation was simply provided to non-asylum seekers with no leave to remain who could show they would otherwise be destitute.

Those granted immigration bail under the 2016 Act face an additional hurdle under Schedule 10. There must now be “exceptional circumstances” to justify a grant of support. 

“Exceptional circumstances”

The Home Office’s guidance on Immigration Bail records only three categories of exceptional circumstances justifying support:

1. the person is granted immigration bail by the Special Immigration Appeals Commission (SIAC)
2. an offender is assessed as a ‘high harm’ case
3. the person will suffer inhuman and degrading treatment under Article 3 ECHR due to homelessness and a lack of resources

It appears that the Home Office has followed this to the letter, and refuses to consider circumstances that aren’t on it.

Nigh on impossible to get accommodation

The policy is complex and chaotic and there is little or no guidance on the process by which Schedule 10 support is granted or refused. 

For a time there was no formal process by which someone could apply for it. Decisions on whether to grant accommodation were made without the person’s input, and sometimes without informing them of the outcome. Where decisions were actually communicated, there was no clear route to challenge refusals. 

BID’s research showed that since its introduction the policy has led to an enormous drop in accommodation grants to non-asylum seeking detainees applying for immigration bail. Whereas the Secretary of State made 2,824 grants of support under section 4(1) in 2017, there were just 51 grants of support made under the Schedule 10 system between January and September 2018. 

The individual claims

Two of the claimants, Mr Humnyntskyi and WP, remained in detention for months following grants of conditional bail. In Mr Humnyntskyi’s case, he was refused accommodation as he was not deemed a high risk of harm, and so remained in detention for a further eight months. WP, a highly vulnerable destitute woman, was refused support as her circumstances did not meet the Article 3 threshold. She was detained for another four months before the High Court ordered her release. 

Mr A, the third claimant, wanted to return to South Africa but there were problems re-documenting him that he could do nothing about. He was granted bail but the Home Office refused to provide accommodation and so he was released to the streets. He sofa-surfed for five months and was street homeless for another ten before accommodation was finally arranged, again by order of the High Court.

Procedural unfairness “inherent in the policy”

The High Court found that both Mr Humnyntskyi and WP had been unlawfully detained. Relying on Limbuela v SSHD [2005] UKHL 66, the court also found that A’s treatment had breached Article 3 ECHR. This is the second time this year that people have been found at risk of treatment in breach of Article 3 due to a hostile environment policy.

When considering the common features of the claims, the court set out what constituted an irreducible minimum standard of fairness, without which the Schedule 10 policy would be operating so unfairly as to be unlawful. The court considered that, as a minimum, a policy which invited or entertained representations and took them into account, that notified individuals of the process, that made decisions in line with published policy, and notified individuals of those decisions, would meet a minimum standard of fairness. 

With that in mind, Johnson J said at paragraph 286:

It follows 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. 

He went on to say:

Further, I consider that it is satisfied by some margin. I have considerable doubts that the irreducible minimum criteria I have specified would be sufficient to secure fairness. There is force in Ms Dubinsky’s submissions that much more is required in this particular context. The Secretary of State’s policy is deficient in respect of each and every component of that irreducible minimum. The result is that not only is there a real risk of unfairness, that is the likely result in significant categories of case, A’s case being a paradigm example.

Powerful stuff – but the evidence spoke for itself. It’s hard to see what other conclusions could have been drawn. 

Fettered discretion

The High Court also found that the Home Office had fettered its discretion by drafting the Schedule 10 policy in a way that compromised its assessments of eligibility. By listing only three categories of exceptional circumstances and using exclusionary language, the policy guidance had falsely implied a closed list of what the Home Office could treat as exceptional.

While recognising that it was outside the High Court’s jurisdiction to determine what counted as exceptional circumstances, the court held that the closed list fettered the Home Office’s discretion in assessing cases on their own merits.

Grace periods

Finally, the court gave some further brief guidance on ‘grace periods’. It held that a week would be a reasonable period to find accommodation for someone in Mr Humnyntskyi’s circumstances (not high risk; no particular urgency on account of physical or mental ill-health), after which further detention risks becoming unlawful. This should provide further assistance for those with unlawful detention claims resulting from accommodation delays. 

Conclusion

The court’s own summary of its findings is:

The Claimants have established that the Secretary of State’s policy for granting Schedule 10 accommodation is unlawful because:

(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.

The court’s findings should hopefully lead to a total revamp of the policy in terms of transparency, accessibility and provision of support to migrants and detainees.

The judgment comes as a victory for practitioners and campaigners who have fought against the chaotic new system since its introduction. Bail for Immigration Detainees stands out; its careful research and correspondence with the Home Office is cited throughout the judgment.