Summary
A public authority responsible for immigration bail accommodation must operate clear and effective arrangements for identifying potential care and support needs and, where appropriate, referring the person to a local authority. That obligation arose from the public law duty of adherence to policy, the Secretary of State’s stated equivalence policy and the ordinary duty to act reasonably.
The Secretary of State also breached the Public Sector Equality Duty and the reasonable-adjustments duty by failing to monitor the provision of accommodation to disabled persons and to operate an effective system for prioritising complex cases. Individual accommodation must be assessed reasonably and objectively. Accommodation may nevertheless be lawful where a prompt response follows a change in circumstances, but prolonged retention in unsuitable accommodation may breach statutory accommodation and equality duties.
Factual background
The claimant, a foreign national offender with physical and mental disabilities, was granted immigration bail subject to residence in accommodation arranged by the Secretary of State under Schedule 10 to the Immigration Act 2016. He was released from immigration detention to Home Office bail accommodation and later moved between shared properties.
He challenged the Secretary of State’s systems and decisions concerning safe release, care and support referrals, accommodation suitability, equality duties and Convention rights. The claim also concerned whether the issues were academic and whether some matters required transfer to the King’s Bench Division for a damages trial.
The central questions were whether the Secretary of State had lawful systems for identifying and referring potential Care Act needs, whether the claimant’s accommodation and release planning complied with policy and statutory duties, and whether the arrangements engaged Articles 2, 3 or 8 ECHR.
Held
- Outcome. The judicial review succeeded on the policy-gap, individual care-and-support liaison, Public Sector Equality Duty and reasonable-adjustments issues. It also succeeded in relation to the failure to move the claimant from Rokeby Gardens between 6 November and 22 December 2023. The claim was dismissed on the remaining issues.
- The Secretary of State acted unlawfully by failing to have a written policy or clear instruction requiring decision-makers to identify potential care and support needs and consider anticipatory referral to a local authority. The unlawfulness lay in the vacuum, rather than in the absence of one prescribed form of policy. Clear and effective instructions could suffice, although transparency was important.
- In the claimant’s case, DSO 08/2016, read with the stated equivalence policy, required the relevant caseworkers to address potential care and support needs, an expedited multidisciplinary meeting and anticipatory local-authority referral. Failure even to consider or arrange those matters was an Adherence breach and unreasonable.
- The Secretary of State breached the Public Sector Equality Duty by failing to collect and monitor data concerning disabled persons receiving Home Office bail accommodation. The absence of monitoring, together with the absence of an effective prioritisation system, also breached the reasonable-adjustments duty under the Equality Act 2010.
- The accommodation-level provisions in Immigration Bail Interim Guidance were descriptive rather than an absolute entitlement to Level 3 accommodation. A Harm Case could lawfully receive initial accommodation where that was reasonably assessed as the suitable least-worst option, including where the accommodation provided step-free access.
- There was no breach concerning medication planning, seizure support or the initial provision of Willow Lane. The Secretary of State acted within the law by moving the claimant from Willow Lane within a reasonable period after the stair risk became known.
- Rokeby Gardens was initially selected in good faith and appeared suitable. Once local professionals identified the stair configuration as unsafe and the claimant’s discharge was delayed, urgent action was required. From 6 November 2023, the continuing failure to transfer him breached the Schedule 10 accommodation duty, the reasonable-adjustments duty and section 15 of the Equality Act 2010. It also breached an existing court order.
- The arrangements did not breach the Article 2 or Article 3 Systems Duty or Operational Duty, the substantive Article 3 right or Article 8. The court distinguished a real risk of delay in meeting care needs from a real risk of death or treatment crossing the Article 3 severity threshold.
- The court ordered declarations, mandatory monitoring and equality-impact-assessment measures, liberty to apply concerning deadlines, and payment of 85% of the claimant’s costs.
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Appellate history
This was a first-instance judicial review in the Administrative Court. The claimant’s application for permission to appeal was refused under CPR 52.6(1)(a) and (b).
Key cases cited
25 authorities cited.
- R v Secretary of State for the Home Department [2021] UKSC 37
- R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38
- Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2
- Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 v Secretary of State for the Home Department [2011] UKSC 12
- Regina v. Secretary of State for the Home Department (Appellant)ex parte Adam (FC) (Respondent) Regina v. Secretary of State for the Home Department (Appellant) ex parte Limbuela (FC) (Respondent)Regina v. Secretary of State for the Home Department (Appellant) ex parte Tesema (FC) (Respondent)(Conjoined Appeals) (HTML version) [2005] UKHL 66
- Regina v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent) [2005] UKHL 58
- Northumbrian Water Limited, R (on the application of) v Water Services Regulation Authority [2024] EWCA Civ 842
- ASY & Ors v Home Office [2024] EWCA Civ 373
- VC, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1) [2018] EWCA Civ 57
- SAG & Ors v Secretary of State for The Home Department [2024] EWHC 2984 (Admin)
- DXK, R (on the application of) v The Secretary of State for the Home Department [2024] EWHC 579 (Admin)
- TMX, R (on the application of) v London Borough of Croydon & Anor [2024] EWHC 129 (Admin)
- SA, R (on the application of) v Secretary of State for the Home Department [2023] EWHC 1787 (Admin)
- MG (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2022] EWHC 1847 (Admin)
- R (on the application of) DR CATHY GARDNER & Anor. v SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE & Ors. [2022] EWHC 967 (Admin)
- R (CSM) v Secretary of State for the Home Department [2021] EWHC 2175 (Admin)
- NB & Ors, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 1489 (Admin)
- DMA, R, (on the application of) v The Secretary of State for the Home Department (Rev 1) [2020] EWHC 3416 (Admin)
- Humnyntskyi & Ors, R (On the Application Of) v Secretary of State for the Home Department [2020] EWHC 1912 (Admin)
- R (W, A Child By His Litigation Friend J) v The Secretary of State for the Home Department & Anor [2020] EWHC 1299 (Admin)
- McDonagh, R (on the application of) v London Borough of Enfield [2018] EWHC 1287 (Admin)
- Sathanantham & Ors, R (on the application of) v The Secretary of State for the Home Department & Anor [2016] EWHC 1781 (Admin)
- Razai & Ors v Secretary of State for the Home Department [2010] EWHC 3151 (Admin)
- R (on the application of Bernard) v Enfield LBC [2002] EWHC 2282
- Pretty v UK (2002) 35 EHRR 1
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