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

A conditional grant of immigration bail requiring residence at an address approved by Probation can trigger the power, and associated duty, to provide accommodation under paragraph 9 of Schedule 10 to the Immigration Act 2016. The absence of a specified address at the time of the grant does not prevent that power arising. Where refusal of accommodation is seriously arguable unlawful, repeated administrative delay has occurred, and no evidence shows that suitable accommodation is unavailable, the court may grant mandatory interim relief. A person should not ordinarily be required to make a further application or start fresh proceedings where the existing decision is arguably unlawful and the history gives no reasonable prospect of timely lawful reconsideration.

ER, a Trinidad and Tobago national with serious mental-health difficulties and extensive criminal convictions, was detained under immigration powers after completing his custodial sentence. The First-tier Tribunal granted immigration bail in principle, subject to accommodation approved by Probation, but no suitable address was found.

Applications for accommodation under paragraph 9 of Schedule 10 to the Immigration Act 2016 were refused, apparently on the grounds that bail had not been granted or that no residence condition existed. The refusals were not promptly disclosed, and the Home Secretary did not substantively respond to repeated challenges to the detention. ER sought urgent mandatory interim relief requiring identification of accommodation and release.

1. Interim relief granted. The Home Secretary was ordered, within seven days, to identify accommodation under Schedule 10 in consultation with the Probation Service, and to release ER to that accommodation within three days thereafter.
2. The conditional bail grants required ER to reside at an address approved by Probation. The court considered it strongly arguable that this triggered the power under paragraph 9 of Schedule 10. The absence of a specified address did not prevent the power arising. The reasoning in Humnyntskyi [2020] EWHC 1912 (Admin), at paragraphs 18–19, supported that conclusion, including the Home Office’s understanding that a specified address could be one to be specified later.
3. The refusals of 10 and 16 October were at least seriously arguable unlawful. The first proceeded on the false basis that bail had not been granted. The second was difficult to reconcile with the residence condition imposed by the First-tier Tribunal.
4. The court gave substantial weight to the repeated and unacceptable delays: failure promptly to facilitate legal visits, failure to respond to detailed pre-action correspondence, late provision of evidence, and failure to explain or disclose the accommodation refusals. The suggestion that ER should make a fresh application was rejected. The Home Secretary’s policy indicated that a person in ER’s position did not need to apply, and the later bail grant was materially similar to the earlier one.
5. The asserted public-protection difficulties were unsupported by evidence. There was no evidence that suitable accommodation was unavailable or that compliance with the order was insuperable. The history supplied no reason to believe that a lawful decision would be made within a reasonable time without a court order.
6. The court made its order even assuming, without deciding, that section 12 of the Illegal Migration Act 2023 and newly inserted paragraph 17A(5) of Schedule 2 to the Immigration Act 1971 preserved an underlying power to detain notwithstanding the Hardial Singh principles.

First-instance judicial review and interim-relief proceedings in the Administrative Court. The judgment does not state any prior appellate decision.