Thye Loi Ho, R (on the application of) v Secretary of State for the Home Department

When allocating immigration bail accommodation under Schedule 10 to the Immigration Act 2016, the Secretary of State must begin with the applicable Schedule 10 policy and assess suitability according to the information available and the individual’s circumstances. Location may be relevant to suitability, including where vulnerability, disability, medical needs or other circumstances make it relevant.

The no-choice and exceptional-circumstances approach in the asylum accommodation policy cannot be applied through an equivalence policy if that reverses or alters the Schedule 10 approach. A decision made under the wrong policy is unlawful, even if the outcome might ultimately be the same. The decision must be quashed and remade under the correct policy.

The claimant, a Malaysian national who had lived in Essex for many years, was granted immigration bail accommodation because he otherwise risked destitution. His request for accommodation in Essex, preferably near Southend, was refused and he was dispersed to Sheffield.

The Secretary of State subsequently issued a further decision maintaining the refusal. The claimant challenged the decisions on grounds including misdirection as to the applicable policy, failure to consider relevant circumstances, inadequate reasons, breach of Article 8, and breach of the public sector equality duty. The central issue was whether the Secretary of State could apply the asylum accommodation policy’s no-choice principle and exceptional-circumstances test to accommodation provided under Schedule 10.

1. Grounds 1 and 2 allowed. The allocation decision was unlawful and was quashed.
2. The starting point was the Schedule 10 Policy Guidance. It required suitable accommodation to be allocated according to the information available and the individual’s circumstances. The guidance contemplated that level 3 accommodation might involve restrictions on location and that location could therefore inform suitability in an appropriate case.
3. The Secretary of State had instead applied the unpublished stated equivalence policy and the asylum accommodation policy’s no-choice principle. Under that policy, location became relevant only if exceptional circumstances justified departing from the no-choice rule. That approach effectively treated accommodation as suitable before undertaking the suitability assessment required by the Schedule 10 guidance.
4. The two policies were materially different. The rationale for dispersal and the administrative difficulties of offering choice did not permit the Secretary of State to apply the asylum accommodation policy where it was inconsistent with the Schedule 10 guidance.
5. The claimant’s age, limited English, health conditions, long residence in Essex, community ties, support network, risk of isolation and the disruption of relocation had been considered, but in the context of the wrong policy. The reasons were therefore inadequate, and the decision was irrational insofar as it applied the wrong policy tests.
6. Article 8 was accepted to be engaged, but no proportionality assessment was required because the decision was unlawful on other grounds. The challenge under section 149 of the Equality Act 2010 was academic. The court declined to order accommodation in Essex or expedition of the claimant’s outstanding immigration application.
7. The Secretary of State was ordered to remake the decision by applying the Schedule 10 Policy Guidance, without applying the no-choice policy.

The judgment describes an initial refusal dated 23 October 2024, followed by a further decision dated 12 June 2025 which effectively superseded it. The judicial review claim was determined at first instance. The Secretary of State was required to remake the allocation decision under the Schedule 10 Policy Guidance.