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

Section 4 accommodation applications must be determined fairly, rationally and in accordance with the applicable policy. The duty does not require the Secretary of State to guarantee accommodation or provide it within a fixed period. In assessing lawfulness, the court must consider the applicant’s risks and accommodation requirements, the limited supply of suitable accommodation, and the extent to which delay results from approvals required from probation or police authorities. A mistaken or over-optimistic step will not necessarily be irrational or unlawful where the overall process remains reasonable. In an intractable case, a less-than-perfect address may represent the least-worst available option. A mandatory order is inappropriate where the Secretary of State is making proper efforts and cannot create suitable accommodation within a specified period.

The claimant, a foreign national offender detained under immigration powers, sought judicial review of the Secretary of State’s failure to provide accommodation under section 4(1)(c) of the Immigration and Asylum Act 1999, enabling him to apply for release on immigration bail. His accommodation had to satisfy stringent requirements arising from his conviction, licence conditions and MAPPA risk assessment. Several addresses were identified, but approval involved the police, probation service and offender management authorities.

The claimant argued that the Secretary of State had assessed his needs incorrectly, had proposed unsuitable addresses and had caused unreasonable delay. The Secretary of State maintained that the assessment and search were reasonable, having regard to the limited supply of complex bail accommodation. The central issue was whether the delay and steps taken in seeking accommodation were unlawful.

1. Claim dismissed. The Secretary of State had accepted a duty to consider the application fairly and rationally and in accordance with the applicable policy. That duty arose from the steps taken to assess the claimant and seek accommodation.
2. The initial assessment was reasonable, conscientious and expeditious. The conclusion that complex bail accommodation was required was consistent with policy. Shared accommodation with a person of the same gender was not irrational, provided the claimant had no contact with women within the property and was not required to share with a known sex offender.
3. In assessing the search for potentially suitable addresses, the court had to take account of the very limited supply of complex bail accommodation and the stringent requirements arising from the claimant’s offending history, risk assessments and licence conditions. The first address was genuine, and its approval was outside the caseworker’s control. The second address, in Sunderland, was not compliant with policy because it was standard dispersal accommodation outside Glasgow, but proposing it was not irrational in the circumstances. It was at most maladministration or over-optimism and contributed only a limited period of delay.
4. The third address was complex bail accommodation in Glasgow, although shared. The police could not fully risk-assess the surrounding properties but regarded it as manageable. Applying the guidance in R (Sathanantham and others) v Secretary of State for the Home Department [2016] EWHC 1781 (Admin), including the least-worst option in an intractable case, that address might have been the best available option.
5. Most of the delay resulted from police and probation assessments. The Secretary of State had properly assessed the risks and identified the kind of accommodation required. The overall delay was not unreasonable, irrational or unlawful, and a mandatory order requiring an address to be put forward within 28 days would neither be reasonable nor helpful. No order was made.