Court of Appeal in Northern Ireland decision on refusal of bail accommodation likely to cause wider problems

The Court of Appeal in Northern Ireland has dismissed an appeal challenging refusal of Schedule 10 accommodation on the grounds that the applicant did not have a bail address, which is what she was asking for by making the Schedule 10 application. The situation endorsed by the Court of Appeal was described by the High Court in Humnyntskyi v Secretary of State for the Home Department [2020] EWHC 1912 Admin as a “gordian knot“. This case is Bounar v Secretary of State for the Home Department [2024] NICA 83.

Background

The appellant in this case is an Italian national who had been convicted of several offences and had consented to returning to Italy under the Facilitated Return Scheme in May 2023. She was then told that there were two further criminal cases pending against her. The appellant ended up in immigration detention and applied for bail on 2 June 2023. Following a hearing on 9 June 2023, she was granted bail on the condition that suitable housing was identified within 28 days.

Over the period 13 June to 8 August 2023 the Home Secretary issued three separate refusals to provide the appellant with accommodation which she had applied for under Schedule 10 of the Immigration Act 2016. On 6 July 2023 the conditional bail order was due to lapse and a judicial review application was made challenging the refusal of Schedule 10 accommodation on 3 July 2023.

The judicial review and appeal

The issue in the case was one of statutory interpretation of paragraph 9 of Schedule 10 which provides that a person can be granted accommodation under those provisions where:

(a) a person is on immigration bail subject to a condition requiring the person to reside at an address specified in the condition

The Home Office letter refusing to grant Schedule 10 accommodation stated:

To be eligible for the provision of accommodation, you must be granted immigration bail with a condition that requires you to reside – or live – at a specified address.  This is known as a residence condition.  You must also be unable to support yourself at that address without the assistance of the Secretary of State.  Our records show that you do not have a residence condition attached to your grant of immigration bail.  You are therefore ineligible for assistance.

As the appellant did not have a bail address, the First-tier Tribunal granted bail on the following terms:

Residence

On suitable accommodation being identified for release, the applicant is to reside at that address.

…

Other

… Commencement of the grant of immigration bail is conditional on arrangements being in place within 28 days of today’s date for suitable accommodation for the applicant either by way of agreement between the applicant and respondent; or on the provision of support in accordance with paragraph 9 of Schedule 10 to the Immigration Act 2016 …

If no suitable accommodation is identified within 28 days, this conditional grant of bail will lapse.

This meant that the situation of the appellant was that she had been granted bail by the tribunal subject to the need to find an address, but the Home Secretary would not provide her with accommodation and an address under Schedule 10 because she did not have a grant of bail with a specific address.

Both the High Court and the Court of Appeal considered this to be a lawful situation under the wording of paragraph 9(a). The Court of Appeal stated that “the cornerstone of the judge’s reasoning, adhering faithfully to the statutory language, was that the grant of immigration bail to the appellant did not contain a condition requiring her to reside at a specified address.”

This point was addressed in the case of Humnyntskyi v Secretary of State for the Home Department [2020] EWHC 1912 Admin:

18. Paragraph 9 of Schedule 10, read with paragraph 2, risks tying a Gordian knot.  That is because a person may not be granted Schedule 10 accommodation unless they have been released on bail subject to a residence condition that specifies an address (paragraph 9(1)).  If the person is reliant on the Secretary of State to provide the accommodation then an address cannot be specified until the accommodation is provided.  But the Secretary of State cannot provide the accommodation until the person has been released on bail.  There is therefore a risk of circularity.

19. The circularity is avoided, and the knot untied, in one of two ways.  First, the Tribunal (or the Secretary of State) might make an ‘in principle’ decision to grant bail subject to a residence condition.  That grant of bail will then only take effect if and when the Secretary of States provides accommodation.  Second, the Secretary of State might make an ‘in principle’ decision to provide accommodation.  That accommodation will then only be provided if and when bail is granted.  This pragmatic approach to the legislative regime is helpfully confirmed in a letter from the Home Office dated 26 March 2018 (in the context of the correspondence described at paragraphs 41-46 below):

‘A ‘specified address’ can be either an address that is already specified or one that is to be specified.’

However the Court of Appeal concluded that this was obiter and that “there can be no serious doubt about the correct construction of para 9(1) of Schedule 10 to the 2016 Act” and that the first position described at paragraph 19, with the First-tier Tribunal able to grant bail in principle without an address, was incorrect.

Luckily, the Court of Appeal (which presumably has little practical experience of trying to get a bail address out of the Home Secretary) has an “uncomplicated” solution which is to use the second option outlined in paragraph 19 of Humnyntskyi which “simply entails the detained person, or their representative, and the Secretary of State proactively confronting the issue of accommodation before any bail order is made by the FtT.” Easy!

Paragraphs 28 and 30 of the decision are almost identical and state that where the second option:

is not, for whatever reason, adopted, and if a conditional bail order of the type made in the present case ensues, the problem can be addressed by the subject in one of two different ways, namely (a) by seeking a variation of the extant bail order or (b) in cases where the order has for whatever reason expired, making a new bail application to the Secretary of State.  In both situations, the lacuna arising out of the failure to apply the “in advance” mechanism first time around can in principle be rectified. In the particular case of the variation option, the order itself will typically provide the window of opportunity: in this case 28 days. 

Again, a solution that is predicated on the timely engagement and cooperation of the Home Office, what could possibly go wrong?

Conclusion

I would be very interested to know what has been happening in practice regarding the use of paragraph 19 of Humnyntskyi and what proportion of these cases have been resolved through the use of the first (tribunal) option as opposed to the second (Home Office) option. I suspect that the first route is most commonly used.

In this case the appellant was ultimately able to obtain accommodation with a charity and release from immigration detention on 15 August 2023. If this decision remains in place and is used in practice, many others will languish in unlawful detention because of Home Office delays in providing accommodation. The Supreme Court may need to step in again.

The decision is not strictly binding on the rest of the UK however is likely to be considered very persuasive, meaning the judgment could have wider repercussions and cause some level of chaos in the detention system everywhere. We will see whether the Home Secretary wishes to similarly test the position in England, Wales and Scotland, although doing so seems like to achieve little but a lot more litigation around failure to provide a bail address along with a slew of unlawful detention challenges and payouts.

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