Sathanantham & Ors, R (on the application of) v The Secretary of State for the Home Department & Anor

The power to provide accommodation under section 4(1)(c) of the Immigration and Asylum Act 1999 is coupled with a public law duty. The Secretary of State must determine applications fairly and rationally and in accordance with the applicable policy. Eligibility does not create an entitlement to accommodation: in high-risk cases, suitable premises must first be identified.

The Secretary of State is not required to provide accommodation in every case, and the absence of accommodation does not itself create a right to bail. However, a system which leaves an application unresolved for an excessive period, thereby denying effective access to the First-tier Tribunal, may breach the duty to act fairly and rationally. Systemic delay is justiciable where it affects liberty.

Three judicial review claims concerned the operation of the Secretary of State’s power under section 4(1)(c) of the Immigration and Asylum Act 1999 to provide accommodation for persons released on immigration bail.

Each claimant was a detained foreign national offender assessed as presenting a high risk of harm or absconding. They required accommodation satisfying Home Office, probation, police and public-safety requirements before a realistic bail application could be made. The applications were repeatedly delayed, and in two cases the claimants were later released without a fixed address.

The issues were whether the statutory power was coupled with a duty to provide accommodation, whether procedural fairness required accommodation to enable a bail application, and whether the systemic and individual delays were unlawful.

1. The statutory duty. The power in section 4(1)(c) formed part of a statutory scheme involving detention, immigration bail and accommodation. Applying the principles in Padfield v Minister of Agriculture [1968] AC 997, as explained in M v Scottish Ministers [2012] UKSC 58, the power was coupled with a duty to operate the established policy fairly and rationally and in accordance with that policy.
2. That duty did not require accommodation to be provided whenever an applicant was eligible or destitute. In high-risk cases, eligibility merely initiated a search. Entitlement arose only when particular premises had been identified and assessed as suitable. The different wording of section 103(1) and section 103(2A) supported that conclusion. Ground 1 therefore failed.
3. Procedural fairness and bail. The claimants had access to the First-tier Tribunal, which remained the ultimate decision-maker on bail and could consider a refusal of accommodation. The absence of an address affected the substance and strength of the bail case, rather than the fairness of the procedure by which it was determined. Procedural fairness did not impose a substantive duty to provide accommodation. Ground 3 failed.
4. Delay and systemic unlawfulness. Delay affecting liberty could be justiciable. The authorities, including R (Noorkoiv) v Secretary of State for the Home Department [2002] EWCA Civ 770, required effective systems for steps intended to secure release from detention. The court could review the operation of such a system without designing a replacement or imposing administrative targets.
5. The system’s targets were routinely missed, but failure to meet a target was not itself unlawful. Nevertheless, continuing to seek an ideal approved address, without making a timely decision to offer the least-worst available address or refuse the application so that the Tribunal could decide the matter, denied effective access to judicial oversight. The applications had therefore not been determined fairly and rationally.
6. The claimants’ applications succeeded to that limited extent. The court made no finding that any claimant would have obtained bail, and did not allocate unlawfulness to particular administrative acts or periods. Remedies, including any damages issue, were reserved for a further hearing.

These were first-instance judicial review claims. Permission was granted on grounds 1, 3 and 5; permission to appeal the refusal of permission on grounds 2 and 4 was stayed by consent. The High Court determined the granted grounds and directed a further hearing on remedies.