OR, R (on the application of) v Secretary of State for the Home Department

A power to provide accommodation for a person released on immigration bail does not become a duty to provide a particular address. A rationality challenge must assess the decision in the context of the policy and statutory framework applicable when it was made. Administrative delay or muddle does not, without underlying illegality, establish an unlawful exercise of the power. Fairness requires an applicant subject to significant accommodation restrictions to be told the decision and its reasons. Article 5(4) does not provide a route to obtain a declaration that previous detention was unlawful after release.

The claimant, an Iraqi national, challenged the Secretary of State’s handling of repeated applications for accommodation under section 4 of the Immigration and Asylum Act 1999 while he remained detained under immigration powers. Permission had been granted to argue that restrictions requiring accommodation to be away from schools and parks were unreasonable and materially contributed to continued detention.

The claimant also sought permission to rely on Article 5(4) of the ECHR and to amend the claim to seek aggravated or exemplary damages. The central issues were whether the accommodation restrictions and resulting delay were unlawful, and whether the Article 5(4) claim could proceed.

1. The claim was dismissed. Permission to rely on Article 5(4), and consequential permission to amend the claim to seek aggravated or exemplary damages, was refused.
2. Section 4(1) of the Immigration and Asylum Act 1999 conferred a power, not a duty, to provide or arrange accommodation for persons released on bail from immigration detention. The court applied the principles stated in Razai & Ors v Secretary of State for the Home Department [2010] EWHC 3151 (Admin), including the accepted basis that reasonable endeavours may be required where detention would otherwise be likely to continue.
3. The comparison between accommodation offered in 2009 and that considered in 2010–2011 was misconceived. Decisions had to be assessed in the context of the policy and statutory framework in force at the relevant time. The later policies required additional consideration of serious offending, risk and accommodation suitability, and the restrictions were not irrational.
4. There had been maladministration and muddle, including loss of the first application and delay in completing the relevant pro forma. Those matters did not establish illegality. Since the restrictions were not irrational, the consequential delay challenge could not succeed.
5. Fairness required the claimant to be informed that he was considered unsuitable for Initial Accommodation and of the reasons for restrictions concerning schools and parks. That procedural failing did not alter the result because the representations advanced would not necessarily have produced earlier or different accommodation.
6. Article 5(4) was unavailable to obtain a declaration, after release, that earlier detention had been unlawful. Earlier accommodation would not have assured bail, which remained a matter for the independent tribunal exercising its own jurisdiction.

The judgment records that permission on the Article 5(4) issue had previously been refused. The Court of Appeal rejected an attempt to renew permission in R (SG and OR (Iraq)) v Secretary of State for the Home Department [2012] EWCA Civ 940, [2013] 1 WLR 41. The present Administrative Court judgment dismissed the claim.