Humnyntskyi & Ors, R (On the Application Of) v Secretary of State for the Home Department

A policy governing accommodation for persons on immigration bail must permit fair and rational consideration of every potentially exceptional case. It must enable affected persons to understand the criteria and process, make relevant representations, have those representations considered, and receive the decision.

A policy is systemically unfair where its terms create a real risk of unfair decisions in more than a minimal number of cases. A decision-maker also unlawfully fetters a statutory discretion by treating specified examples of exceptional circumstances as exhaustive.

Where refusal of accommodation exposes a person to a real and immediate risk of inhuman or degrading treatment, accommodation must be provided if the statutory conditions are met. A material public law error concerning accommodation renders related detention unlawful once accommodation could or should reasonably have been provided.

Three foreign nationals brought judicial review claims concerning the Secretary of State’s exercise of the power under paragraph 9 of Schedule 10 to the Immigration Act 2016 to provide accommodation to persons on immigration bail.

Mr Humnyntskyi remained detained after conditional grants of bail because approved accommodation was unavailable. A was released without accommodation and endured prolonged street homelessness. WP remained detained after making clear that release to homelessness would expose her, as a vulnerable woman, to serious harm.

The individual claims concerned unlawful detention, incompatibility with article 3 of the European Convention on Human Rights, and damages. The common claims alleged that the accommodation policy was systemically unfair and unlawfully fettered the Secretary of State’s discretion to recognise exceptional circumstances.

1. The claims succeeded. The Secretary of State’s policy and practice concerning Schedule 10 accommodation for foreign national offenders were systemically unfair and unlawfully fettered her discretion. The claimants were entitled to declarations. Mr Humnyntskyi and WP had been unlawfully detained, while A’s article 3 rights had been breached. A and WP were entitled to damages.

2. Paragraph 9 of Schedule 10 to the Immigration Act 2016 permits accommodation only where the person is on bail subject to a specified residence condition, cannot support themselves at that address, and the Secretary of State considers that exceptional circumstances justify accommodation. The power must be exercised fairly, rationally and compatibly with Convention rights. Where lack of accommodation creates a real and immediate risk of inhuman or degrading treatment which the individual cannot avert, the Secretary of State must treat the circumstances as exceptional and provide accommodation if the other statutory conditions are met.

3. A fair Schedule 10 system has an irreducible minimum. A foreign national offender must be able to make representations, access the applicable criteria and the mechanism for making representations, have relevant representations considered by the decision-maker, receive a decision made under the published policy, and be notified of that decision. The existing policy was deficient in every respect. Its framing created a real risk of unfair decisions in significantly more than a minimal number of cases.

4. The published examples of exceptional circumstances could not lawfully operate as an exhaustive list. The prescribed decision-making process caused officials to treat high risk to the public as a necessary condition, thereby excluding article 3 cases and other potentially exceptional circumstances. The Secretary of State had therefore fettered her discretion.

5. The refusal of accommodation to Mr Humnyntskyi ignored material considerations and followed an unfair process. Because that error was capable of affecting detention, his detention was unlawful once accommodation could reasonably have been provided. The operative order declared the unlawful period to be 1 November 2018 to 23 January 2019.

6. A’s prolonged street homelessness crossed the article 3 threshold. He lacked shelter, adequate food and basic hygiene for an indefinite period and could neither work nor return to his country. The failure to provide accommodation was incompatible with article 3 and section 6 of the Human Rights Act 1998. Damages were necessary for just satisfaction.

7. WP’s detention was disproportionate under EU law after 10 January 2020. It also exceeded a reasonable period at common law, later contravened the Adults at Risk policy, and was independently unlawful because timely consideration of Schedule 10 accommodation could have enabled her release. She was entitled to substantial damages for detention until 22 April 2020.

This was a first-instance judicial review of three related claims. Before the substantive judgment, the High Court had granted interim relief requiring the provision of Schedule 10 accommodation to A and WP. The judgment does not state any appellate history.