Raol Barizi, R (on the application of) v The Secretary of State for the Home Department

Where a person has been granted immigration bail subject to a residence condition, the Secretary of State must exercise the accommodation power compatibly with Convention rights and the published policy governing that power.

Exceptional circumstances may be established where lack of accommodation creates a real and immediate risk of Article 3 ill-treatment, the person cannot obtain accommodation elsewhere, and return to the country of origin is not realistically available because of a legal or practical obstacle. The Secretary of State must also address any relevant public-protection criteria in the policy.

On an application for mandatory interim relief, the court applies the modified American Cyanamid approach. A strong case and the balance of convenience may justify an order requiring accommodation and release.

The claimant, a persistent foreign national offender, sought urgent interim relief in judicial review proceedings concerning his continued immigration detention and the refusal to provide accommodation under paragraph 9 of Schedule 10 to the Immigration Act 2016.

The First-tier Tribunal had granted bail in principle, subject to the provision of accommodation. The Secretary of State refused accommodation, maintaining that the claimant could return to Algeria and had failed to comply with the emergency travel-document process. The claimant argued that repeated Algerian refusals created a practical and lasting obstacle to removal, and that the Secretary of State had failed to apply the relevant public-protection policy.

The central issues were whether interim accommodation should be ordered and whether the claimant should be released from detention pending determination of the judicial review claim.

1. Application granted. The Secretary of State was ordered to provide Schedule 10 accommodation and to release the claimant by 4 pm on 8 January 2024.
2. Under paragraph 9 of Schedule 10 to the Immigration Act 2016, it was for the Secretary of State to decide whether circumstances were exceptional. The court’s function was limited to reviewing that decision on public law grounds. The power had to be exercised compatibly with Convention rights under sections 3 and 6 of the Human Rights Act 1998.
3. The circumstances accepted in R (Humnyntskyi) v SSHD were capable of requiring accommodation: bail with a residence condition, a real and immediate risk of Article 3 ill-treatment caused by lack of accommodation, and inability to avoid that risk through other accommodation or return to the country of origin.
4. The Secretary of State was required, absent good reason, to comply with the published policy. Despite the claimant’s assessed risk of harmful reoffending exceeding 70 per cent, no assessment had been made of the risk of harm to others in light of the nature and extent of his offending. That omission gave the claimant a strong public-law case.
5. The Secretary of State’s approach to return to Algeria was also strongly arguable to be unlawful. The claimant had been detained for removal for many years, Algerian emergency travel-document applications had been rejected, and the Secretary of State had previously accepted that the obstacle lay with the Algerian authorities. The Secretary of State identified no material information then required, no persuasive evidence of current non-compliance, and no realistic plan for resolving the impasse.
6. The court applied the modified American Cyanamid test. The claimant satisfied the higher threshold applicable to mandatory relief. The harm caused by continued detention and street homelessness substantially outweighed the administrative inconvenience and expense of providing accommodation.
7. The Secretary of State’s generic submission did not justify a longer compliance period. The principle in R (AC (Algeria)) v SSHD that evidence and considered submissions should be provided when a period for compliance is sought applied equally to a mandatory accommodation order.