Where a detainee is held under immigration powers by the state, he or she has the right to apply to be released on bail to the First-tier Tribunal.

Previously, if a detainee had no place to stay on release then they could ask to be accommodated, under section 4(1)(c) of the Immigration and Asylum Act 1999. This is still applicable in some cases under transitional provisions, but has mostly been replaced by the Immigration Act 2016, which makes provision for accommodation under paragraph 9, Schedule 10. The Secretary of State has a policy to provide accommodation to any detainee who needs it, and a duty to deal with any application made for such accommodation fairly and expeditiously.

As was reported on Free Movement yesterday, this policy appears to be coming apart at the seams following the chaotic launch of the new Immigration Act bail system early this year, where no effective process has replaced the previous bail accommodation system. Deeply flawed the old process may have been, but at least it existed.

The provision of this accommodation is expensive, requires triangulation between several different government agencies, and is extremely thin on the ground. As Mr Justice Edis stated bluntly in the leading case on bail accommodation delays in R (Sathanantham & Ors) v SSHD & Anor [2016] EWHC 1781 (Admin):

the s.4 bail system does not work for high risk offenders… It is … essential that the system is overhauled.

When Edis J suggested this he probably didn’t have in mind the replacement of the section 4 system with, effectively, nothing. The indomitable Bail for Immigration Detainees (BID) reports that only two of its clients have secured accommodation under the new Immigration Act system since the beginning of the year. The charity had explored the minutiae of the previous excruciating process in No place to go, its excellent report on delays in Home Office provision of section 4(1)(c) accommodation to those seeking bail.

Unsurprisingly, it is taking the lead in pushing for a resolution to the current crisis.

Despite BID’s report, and the lead case of Sathanantham in 2016, things had not improved under the old system. The recent case of R (Baraka) v SSHD [2018] EWHC 1549 (Admin) demonstrates the difficulties which detainees had obtaining a bail address under section 4(1)(c), even before it became next to impossible.

Molon Baraka, a sex offender, has been in immigration detention since March 2017. His nationality was disputed, with neither Sudan, nor South Sudan, prepared to claim responsibility for him nor facilitate his return home. He applied for assistance with accommodation in April 2017.

At the time of the hearing of his judicial review claim over 13 months later (he argued the delay was unlawful), no address had been provided by the Home Office. Bail cannot be granted where no address is given for release.

The judgment of RP Lewis QC, sitting as a deputy High Court judge, details the buck passing between the various agencies — the local housing association, the probation service, the police — all of whom must either approve or facilitate the approval of the proposed address before it can be listed by a detainee in a bail application.

This release process is to be contrasted with that for domestic prisoners — including those convicted of the most serious crimes — as set out in the Criminal Justice (Sentencing) (Licence Conditions) Order 2015 (SI 2015 No. 337) which requires a standard condition to be included in licences by prison governors prior to release requiring the offender to:

(e) 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.

As wryly observed by Edis J in Sathanantham:

I am not sure why it suddenly gets so difficult when they are in immigration detention…

In the instant case, Mr Baraka’s claim was dismissed, the defendant Secretary of State having been found to have taken reasonable steps to attempt to procure the required accommodation, and having acted rationally and reasonably in doing so.

It is a searing indictment of the system built around immigration detainees in the UK — not just the detention centre fences, but the invisible walls beyond of policies and politics — that caseworkers can be deemed to have adequately discharged a duty to procure an address for release, and yet not manage to have achieved this for over a year.

In the meantime, a man for whom there appears to be no prospect of imminent removal — floating between the administrative wills of two states which are not on the best of terms — continues to wait for the chance to argue why he should be free.