United Kingdom - The Queen on the application of O. Humnyntskyi, A & WP (Poland) v SSHD & of SJ [2020] EWHC 1912 (Admin)

Country of Decision:
Country of Applicant:
Date of Decision:
21-07-2020
Citation:
The Queen on the application of O. Humnyntskyi, A & WP (Poland) v SSHD & of SJ [2020] EWHC 1912 (Admin)
Court Name:
The High Court of Justice, Queen’s Bench Division Administrative Court
National / Other Legislative Provisions:
Immigration Act 2016
Immigration Act 1971
Nationality
Immigration and Asylum Act 2002
Immigration and Asylum Act 1999
Human Rights Act 1998
The Care Act 2014
Children Act 1989
Freedom Information Act 2000
Criminal Justice Act 2003
Mental Health Act 1983
Companies Act 1985
Senior Courts Act 1981
Adults at Risk Policy 2016
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Headnote: 

In three conjoined judicial reviews concerning the legality of the Home Secretary’s exercise of her power under paragraph 9 of Schedule 10 of the Immigration Act 2016 to provide accommodation to those who are granted immigration bail, it was held that each of the three claimants had been unlawfully denied such accommodation, and that the relevant policy was systemically unfair.

Facts: 

In each of the three cases, the Secretary of State did not provide bail accommodation.

  1. Mr Humnyntskyi (“Mr H”) was detained for 16 months pending his deportation, which was delayed because he gave a false name and nationality. He committed 35 offences. He was granted conditional bail not the basis that he would be able to provide a suitable residential address approved by the Home Office. Mr. H was not eligible for the Schedule 10 accommodation as he has been assessed as medium risk of harm to the public. He was subsequently released to Ukraine.
  2. A was detained for a period of 11 months. His grant of bail was not effective because A did not have suitable accommodation and the Secretary of State did not provide accommodation, due to “medium harm & reoffending”. A was not provided with reasons for the decision, so he was unable to address its flaws. After his  release on bail without any residence condition, A became homeless for 10 months.
  3. WP was detained for 4 months. She did not cooperate in her removal. Her requests for accommodation did not receive a favourable response.

Each of the claimants contends that the refusal to provide them with accommodation was unlawful and led to loss of liberty in the cases of Mr Humnyntskyi and WP and homelessness in the case of A.

They claim that the system for providing accommodation in the Immigration Act 2016 is inherently unfair and unlawful both by reason of unfairness and because the Secretary of State has fettered her discretion as to the circumstances in which she will provide accommodation.

It was accepted by the Secretary of State that the decisions in A and WP’s case were unlawful. She requests that the claims are dismissed as they are purely academic, since her policy is fair and lawful and Mr Humnyntskyi has been deported and A and WP have been provided with accommodation accordingly.

Decision & Reasoning: 

The judge made a series of findings critical of the operation of the Immigration Bail accommodation scheme.

He held that:

  • Nothing in the unpublished policy, or in the publicly available guidance indicated how a Foreign National Offender (‘FNO‘) might apply for accommodation or make representations in support of the provision of accommodation. The guidance pointed FNOs towards forms that were not appropriate for applying for Schedule 10 accommodation as they did not elicit relevant information. Further, there was nothing in the guidance to alert applicants to how they should raise potentially exceptional circumstances with the Home Secretary.
  • In practice, caseworkers treated as a closed list the three examples of exceptional circumstances given in the guidance — SIAC cases (involving security issues), high harm to public cases, and cases where Article 3 ECHR was potentially engaged.
  • Further, in practice caseworkers limited consideration of Article 3 solely to FNOs assessed as high risk to the public, rather than as an independent criterion for being exceptional circumstances: “There is an open question as to whether those operating the Schedule 10 policy have, nonetheless, correctly understood how it is intended to operate.”
  • The FNO themselves were largely excluded from the decision making process.

In terms of the individual cases:
 

In deciding whether Mr H was unlawfully denied Schedule 10 accommodation, the court emphasised that it is for the Secretary of State to decide whether circumstances are “exceptional” so as to permit the grant of accommodation. However, there is no evidence that the Secretary of State considered whether Mr Humnyntskyi’s situation was exceptional so as to merit the grant of accommodation. All of the evidence suggests that a decision was made that Mr Humnyntskyi did not qualify for accommodation because he was not a high risk foreign national offender (“FNO”). The risk that he would become destitute and suffer inhuman and degrading treatment was not considered, although this could amount to exceptional circumstances as per the Secretary of State’s policy. However, the court did find that it is unlikely that he would have become immediately street homeless and therefore suffering such treatment and, as such, the failure to consider his application by reference to Article 3 of the European Convention on Human Rights (ECHR) was not a breach of section 6 of the Human Rights Act 1998 (“HRA”).

It follows that the decision not to provide Mr Humnyntskyi with accommodation was unlawful because there was a failure to have regard to material considerations, namely to consider whether Mr Humnyntskyi’s circumstances were exceptional by reason of his post-sentence residence condition and/or a risk of inhuman and degrading treatment and/or the observations made and directions given by the Tribunal when granting bail. The court reiterated that, in the context of Schedule 10, it is, at the least, a duty to consider fairly and rationally whether there are exceptional circumstances so as to justify the provision of accommodation. That did not happen here.

For the reasons given above, the decision not to provide Mr H with Schedule 10 accommodation was unlawful. This is because it was unfair and because the Secretary failed to have regard to relevant factors.

In terms of A, the court was satisfied that the conditions endured by A met the Article 3 threshold, as he endured “very substantial hardship” during the time he was homeless. As per R (Limbuela) v Secretary of State for the Home Department [2005], there is no simple test for establishing the threshold, however, as per Lord Bingham, “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 threshold would, in the ordinary way, be crossed”. Accordingly, it was found that the Secretary’s failure to grant Schedule 10 accommodation was unlawful pursuant to section 6(1) HRA, because it was incompatible with the prohibition of inhuman and degrading treatment. Additionally, the court submitted that A should be entitled to damages.

Regarding WP, she claims she was unnecessarily and unreasonably detained when she did not pose a significant risk of absconding or re-offending and was likely to suffer a deterioration of her mental health. The court accepts that WP’s circumstances were complex. It was not immediately clear whether or when she could be removed from the UK, whether she should be in hospital, or whether she could safely be detained. What ought to have been clear, fairly rapidly, is that she should not be put back on the streets. If she was not going to be detained, and if she was not going to be moved to hospital, she would need to be provided with some form of accommodation/

The judge did not accept the Secretary of State’s assessment that WP posed a high risk of harm to the public and the initial decision to remove her was taken too quickly. Accordingly, her detention was unlawful.

When considering whether there were systemic failings in the policy, the evidence of the cases before the court indicated that in each of those three categories of cases, Schedule 10 accommodation was refused because the claimant was not considered to be a high risk. The court rejected the idea that these were “aberrant” erroras, as it was contrary to the published policy and also was an unlawful fetter on the Home Secretary’s discretion.

When assessing the reality against the irreducible minimum of fairness, it was held first that there were some cases where there was no ability to make representations. For example, where the FNO was not even aware a decision concerning accommodation had been made. FNOs were also not proactively informed of the process, and a significant number would not have any way of knowing how to apply for Schedule 10 accommodation.

In conclusion, the court held 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.”

Outcome: 

Application granted.

Subsequent Proceedings : 

The Secretary of State applied for an appeal of the decision.

Observations/Comments: 

This summary was written by Andra Oprea, LLM Student at Queen Mary University London.

Other sources cited: 

Domestic Case Law Cited

Kaitey v Secretary of State for the Home Department [2020] EWHC 1861 (Admin), R v Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768, R v Secretary of State for the Home Department ex parte Doody [1993] 1 AC 531, R (Sathanantham) v Secretary of State for the Home Department [2016] EWHC 1781 (Admin) [2016] 4 WLR 128, Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200, R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23 [2011] 1 WLR 1299, B(Algeria) v Special Immigration Appeals Commission [2018] UKSC 5 [2018] AC 418, R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2012] 1 AC 245, R (Razai) v Secretary of State for the Home Department [2010] EWHC 3151 (Admin), R (Sathanantham) v Secretary of State for the Home Department [2016] EWHC 1781 (Admin) [2016] 4 WLR 128, R (Diop) v Secretary of State for the Home Department [2018] EWHC 1934 (Admin), R (DN (Rwanda)) v Secretary of State for the Home Department [2020] UKSC 7 [2020] 2 WLR 611, R (Qarani) v Secretary of State for the Home Department [2017] EWHC 507 (Admin), R (AC (Algeria)) v Secretary of State for the Home Department [2020] EWCA Civ 36, R (Merca) v Secretary of State for the Home Department [2020] EWHC Admin 1479, R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450, R (Zoolife International Ltd) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin), Kudla v Poland (2002) 35 EHRR 11 GC, R (AR) v London Borough of Hammersmith and Fulham [2018] EWHC 3453 (Admin), DSD v Commissioner of Police of the Metropolis [2014] EWHC 2493 (QB) [2015] 1 WLR 1833, M v Home Office [1994] 1 AC 377 and MSA v London Borough of Croydon [2009] EWHC 2474 (Admin), R (Lauzikas) v Secretary of State for the Home Department [2018] EWHC 1045 Admin [2018] 1 WLR 5299, R (Lumsdon and others) v Legal Services Board [2016] UKSC 41 [2016] AC 697, R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115, R (L) v West London Mental Health NHS Trust [2014] EWCA Civ 47 [2014] 1 WLR 3103, R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 224 [2017] 4 WLR 92, R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840 [2015] 1 WLR 4341, R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841, Hoffmann La-Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 HL, R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 [2004] QB 36, H and L v A City Council [2011] EWCA Civ 403, R (BF (Eritrea)) v Secretary of State for the Home Department [2019] EWCA Civ 872 [2020] 4 WLR 38, R (W) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin), R (Woolcock) v Secretary of State for the Home Department [2018] EWHC 17 (Admin) [2018] 4 WLR 49, R v Secretary of State for the Home Department ex parte Venables [1998] AC 407