The High Court in R (MS) v Secretary of State for the Home Department [2017] EWHC 2797 (Admin) has found that in circumstances where a person would have no option but to stay on the streets after release from detention, the Home Office has a duty under Article 3 of the European Convention on Human Rights to provide them with suitable bail accommodation with reasonable speed. Potential homelessness cannot be a reason for prolonged detention.

The factual background

MS, an alcoholic, had been convicted of various criminal offences in Poland. In November 2015 he came to work in the UK but was “controlled by men who took most of his wages and threatened him when he complained”. Escaping via the Hope for Justice charity, MS was recognised as a victim of trafficking in July 2016.

Around the same time, MS entered a Home Office safe house, but problems caused by his drinking, drug use and associated aggressive behaviour made it unfeasible for him to stay there. This behaviour was exacerbated by a deportation warning served on him in December 2016, and a decision to deport him in January 2017. In February he was arrested at the safe house, and since then has been in detention.

It was accepted by the High Court that due to the risk of MS absconding and endangering the public, it was at first reasonable to detain him. But he challenged the deportation order, and by 27 June it was recognised that the first available date for a case management review hearing was some six to eight weeks later. This meant that the third criterion in Hardial Singh was from then on unfulfilled:

If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.

A relatively short period grace period was allowed to the Home Office given MS’s lack of accommodation and support: the date after which detention was unlawful was 14 July 2017.

Here comes the important part: MS would have nowhere to go if he were released. He would be back on the streets without accommodation, support, food, drink and anywhere to maintain cleanliness. That would breach Article 3 of the European Convention on Human Rights, forbidding torture or inhuman or degrading treatment.

Detention is not lawful just because the alternative is homelessness

As the House of Lords stated in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396:

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 [Article 3] threshold would, in the ordinary way, be crossed.

The Home Office was unable to provide MS with bail accommodation under section 4(1)(b) of the Immigration and Asylum Act 1999 because the places it found fell through, due to errors in paperwork or contractual disputes for which he was not responsible. The question was whether detention could be justified given that leaving MS out on the streets would have been unlawful.

The High Court gave the position of the Home Office short shrift:

I do not think that detention could be justified simply on the basis that release would place the Claimant on the streets. If it is unacceptable to place the Claimant on the streets, he should be provided with bail accommodation. Detention is not a proper substitute for such accommodation once detention cannot otherwise be justified.

The principle decided here is important, and may have significant effect beyond the present case: Home Office delay in providing bail accommodation does not operate to lengthen the period within which someone can legally be detained, beyond a relatively short grace period owing not to the Home Office’s difficulties but to the individual’s difficult position.

However, the High Court went on to note:

That does not mean the Claimant would be entitled to remain in the accommodation if, by his own actions, he were to deprive himself of it; for example, by misconduct leading to expulsion. That would not be an act of the Secretary of State, and she would not have an obligation to find other accommodation under section 4 in that case.

This is because the Convention typically protects people only from actions attributable to the state, not to private individuals. This is why the state is not in breach of Article 3 whenever, for example, a stabbing occurs. The government releasing someone from detention to fend for themselves on the street would therefore breach Article 3; their own behaviour causing their removal from section 4 accommodation would not.

The case may help potentially homeless people in immigration detention challenge their ongoing detention, if there is no other reason for ongoing detention than the Home Office being slow to grant them accommodation upon release. Further, the Home Office might in future find such accommodation more quickly for such individuals if failure to do so brings possible liability to pay damages for unlawful detention.