BLZ No.1

The High Court considered the lawfulness of Home Office arrangements for Home Office Bail Accommodation (HOBA) and Safe-Release planning from immigration removal centres where potential care and support needs, human rights and equality duties arise. Key principles applied included the Home Office's duty of Adherence to its stated equivalence policy between HOBA and asylum support accommodation, the duty to make anticipatory referrals to local authorities under the Care Act 2014 where a person may have care and support needs, the public sector equality duty and reasonable adjustments under the Equality Act 2010, and the Article 2/3 Systems and Operational duties under the Human Rights Act 1998.

The court found unlawful a systemic policy-gap in the SSHD's arrangements: there was no clear written instruction or effective training requiring caseworkers to identify potential Care Act needs and to make anticipatory referrals to local authorities prior to or following release into HOBA. The SSHD also breached the Equality Act by failing to collect and monitor equality data for HOBA recipients and by failing to put in place reasonable systems and reasonable adjustments for disabled HOBA recipients. In the claimant’s individual case the SSHD failed to convene or consider an expedited multi-disciplinary Safe-Release meeting and failed to make or consider an anticipatory referral for a local authority needs assessment. The court declared unlawful delay and continued accommodation at a property (Rokeby Gardens) in breach of a court order and identified unlawful discrimination and failure to make reasonable adjustments for the period 6 November 2023 to 22 December 2023. The court rejected arguments that the system breached the Article 2/3 Systems or Operational duties or that the claimant’s Article 3 or Article 8 rights were breached on the facts except for the specified period and findings above.

This is a judicial review claim about Home Office planning for HOBA and Safe-Release from an IRC for a foreign national offender with complex physical and mental health needs. The claimant sought declarations of unlawfulness and associated mandatory relief, arguing that the SSHD lacked clear policy and systems to identify and refer people with potential care and support needs to local authorities (Care Act 2014), failed to follow Home Office policy instruments (including DSO 08/2016 and the Immigration Bail Interim Guidance), acted unreasonably under Sch 10 §9 of the Immigration Act 2016 in providing HOBA, breached equality duties under the Equality Act 2010 and breached human rights duties under Articles 2, 3 and 8 ECHR.

The court summarised the legal landscape: HOBA is governed by Sch 10 §9 Immigration Act 2016; Safe-Release by DSO 08/2016; care duties by the Care Act 2014; equality duties by the Equality Act 2010; and Convention duties by the HRA 1998. The material facts involved the claimant’s significant psychiatric and neurological history (including neurocysticercosis and seizures), an FTT grant of immigration bail with a residence condition requiring an address provided under Sch 10 §9, a sequence of Home Office instruction-to-provider (ITP) steps, and transfers to three HOBA placements (Willow Lane, Rokeby Gardens and then a Hotel). Contemporaneous medical and social work records identified risks relating to seizures, stairs and medication management, and local authorities provided care packages and Telecare in due course.

The court identified and decided several issues: (1) whether there was a policy gap requiring instruction/published guidance and referral procedures for potential Care Act needs (answer: yes; SSHD acted unlawfully in failing to have clear arrangements); (2) whether immigration bail guidance (Immigration Bail Interim Guidance) required Level 3 accommodation (answer: no; guidance is descriptive and allows evaluative judgment); (3) whether DSO 08/2016 was followed in the claimant’s case and whether Safe-Release planning should have included expedited multi-disciplinary meetings or anticipatory local authority referrals (answer: SSHD failed to consider and act and this was unlawful and unreasonable in the claimant’s case); (4) whether systemic or operational Article 2/3 duties were breached (answer: no on the facts; the Systems and Operational duties did not require the specific systemic steps argued); and (5) Equality Act claims (answer: SSHD breached the PSED and failed to make reasonable adjustments systemically; and in the claimant’s case unlawfully failed to make reasonable adjustments and discriminated for the period 6.11.23–22.12.23 because of the continued accommodation at Rokeby Gardens).

The court declared unlawfulness on identified systemic and individual grounds, made mandatory orders requiring extension of the monitoring system for asylum support accommodation to FNOs in HOBA and requiring an Equality Impact Assessment, and made cost and consequential orders. The court refused permission to appeal.

The claim was allowed in part. The court declared multiple unlawful failures by the SSHD: a systemic absence of clear written arrangements and training for identifying potential Care Act 2014 needs and making anticipatory local authority referrals; breaches of the Equality Act 2010 by failing to monitor HOBA allocation to disabled persons and by failing to make reasonable adjustments; and unlawful conduct in the claimant’s case in failing to convene multi-disciplinary Safe-Release planning or make anticipatory referrals. The court also declared that continuing to accommodate the claimant at Rokeby Gardens between 6 November 2023 and 22 December 2023 breached a court order and amounted to unlawful discrimination and failure to make reasonable adjustments in that period. The court refused to find a breach of the Article 2/3 Systems or Operational duties or a substantive Article 3/8 violation on the facts apart from the declared breaches. Mandatory orders were made requiring extension of monitoring and an Equality Impact Assessment; liberty to apply to set deadlines; and costs orders in favour of the claimant.