Social Welfare Update: Humnyntskyi – Home Office policy on Schedule 10 declared unlawful

In March 2020 the world came to a grinding halt as the devastating effects of the global pandemic set in. A small mercy and consequence has been that hundreds of people (many of them very vulnerable) have been released from immigration detention centres and prisons across the country over the last 8 months. Their detention simply could not be justified when removal was not imminent.

However, as many foreign national offender (FNO) detainees in particular found, obtaining immigration bail was only the start of a very long battle in securing release. What do you do if you do not have any friends or family to provide you with accommodation and a residence requirement is a condition of your bail?

Enter Paragraph 9 of Schedule 10 of the Immigration Act 2016 which allows for the provision of accommodation where a person is granted bail subject to a residence condition; where the person is otherwise destitute; and where the Secretary of State considers there are “exceptional circumstances” justifying a grant of accommodation. Her power to grant accommodation may only be exercised where:

• The person is on immigration bail;
• The person is subject to a bail condition requiring them to reside at a specified address;
• The person would not be able to support himself or herself at the address without the provision of accommodation by the Secretary of State;
• The Secretary of State thinks that there are exceptional circumstances;
• The Secretary of State thinks that those exceptional circumstances justify the exercise of the power to grant accommodation.

If you have a client who may qualify for accommodation under this regime then the case of R (Humnyntskyi) v SSHD [2020] EWHC 1912 (Admin) is essential reading. The facts in the three conjoined judicial reviews concerning the legality of the Home Secretary’s exercise of her power under the Schedule 10 regime are quite stark and are as follows;

• Mr Humnyntskyi was detained for a period of 16 months pending his deportation from the United Kingdom. Conditional orders for bail, subject to a residence condition, were not effective because Mr Humnyntskyi did not have suitable accommodation and the Secretary of State did not provide accommodation. Mr Humnyntskyi was eventually deported to Ukraine. He was found to be unlawfully detained and declaration to that effect was made.
• Claimant (‘A’) had been detained for 11 months and was granted bail with a condition of residence. He was eventually released without a residence condition and spent 15 months homeless and (10 months street homeless and living in a tent). He was unable to wash, eat regularly, lacked electricity or running water. He was found to have suffered degrading treatment in breach of his rights under Article 3 of the European Convention of Human Rights.
• The third claimant (‘WP’), a schizophrenic woman who gave a history of rape while previously street homeless, was found to have been unlawfully detained – her detention lasting 4 months had been prolonged while the Home Office failed to grant her accommodation. This was despite the Home Office being aware of WP’s vulnerability and clear warnings in her detention records that if homeless, WP might ‘be taken advantage of by strangers’, WP was on a number of occasions almost released by the Home Office to further street homelessness.

All the claimants had suffered severe delays in determining whether they were eligible for accommodation. Notably the Home Office’s policy was found by Mr Justice Johnson to be ‘systemically unfair’ and contain ‘inherent procedural unfairness;

302. The Claimants have established that the Secretary of State's policy for granting Schedule 10 accommodation is unlawful because:

(1) It is systemically unfair. It creates a real risk that unfair decisions will be made in a significant number of cases. Those risks materialised in the cases before the Court.

(2) In its operation it fetters the Secretary of State's discretion to consider whether the situation of an individual applicant amounts to exceptional circumstances. That unlawful fetter was applied in the cases before the Court.

Specific deficiencies in the policy are further highlighted at §279-286 of the judgement;

279. (1) Ability to make representations: There are circumstances in which representations can be made. In each of the three cases that are before the Court it was possible for the experienced solicitors to make representations as to why their clients should be provided with Schedule 10 accommodation. There is, however, some force in the suggestion made on behalf of the Claimants that this was possible in spite of, rather than because of, the system that was in place. In any event there are categories of case where there is no ability to make representations. 

280. One such category arises where the decision is made as a result of an internal referral process without notification to the individual concerned (so where the caseworker decides not to refer the matter to CCAT). In such a case the person will not know that the decision is being made, and will therefore not be able to make representations. Nothing in the unpublished or published guidance documents suggests that representations will be invited or entertained in these circumstances. There is no evidence that representations are, in practice, invited or entertained in these circumstances. Such evidence as there is, suggests that they are not. This is demonstrated by the facts of these cases. Decisions were made without the knowledge of the Claimants or their representatives. They could not have known that the decisions were being made, and they did not have any ability to make representations.

281. A second category comprises FNOs who are not in detention. Such a person may find themselves destitute, street homeless, and facing inhuman and degrading conditions. In some cases the only way to avoid such conditions will be by way of provision of Schedule 10 accommodation. In those cases the Secretary of State is under an obligation to provide such accommodation (and, if necessary, to attach a residence condition to the FNO's bail). Yet the policy does not provide any mechanism by which such FNOs might seek Schedule 10 accommodation. Forms B1 and Bail 401 are not apt because they are forms for those who are in detention who wish to seek bail. Form 409 is not apt because that is for "non-FNOs" (Mr Metcalfe said that this was intended only to exclude FNOs that are in detention, but that is not what the form says). Form B2 is not apt because that is for those who have been granted bail from the Tribunal (without a direction under paragraph 6(3) of Schedule 10). Nothing in the policy or the evidence filed by the Secretary of State suggests that such cases are considered proactively. A's case tends to indicate that they are just not considered at all.

282. (2) Notification of criteria and process: FNOs are not proactively informed of the process. Version 4 of the policy guidance does identify a process by which an application for Schedule 10 accommodation might be made by a FNO. That guidance is addressed to caseworkers rather than FNOs and is not provided to FNOs. It is published on the internet and is therefore available to anybody who speaks English with an internet connection. That does not encompass all FNOs. Version 5 of the policy states that detained FNOs are provided with an information sheet that explains how to apply for Schedule 10 accommodation (see paragraphs 39 - 40). But the information sheet that is provided does not have this information. Of course, that is likely to be a simple error that is easily corrected. It has, however, not been corrected. The result is that a significant number of FNOs will not have any way of knowing how they should make an application for Schedule 10 accommodation. The cases before the Court illustrate the difficulties that arise as a result, and the consequential unfairness. The only processes by which FNOs in detention can seek Schedule 10 accommodation are by (a) using a form designed for another purpose and/or which carries an explicit prohibition of use by a FNO, or (b) making a speculative ad hoc request which may never be considered. 

283. (3) Representations taken into account by decision maker: When representations are made, they are made to the caseworker rather than the person responsible for making a decision on whether to provide Schedule 10 accommodation. There is nothing in the policy that requires the representations to be passed to the decision maker. There is no evidence that this is routinely done. The cases before the Court tend to indicate that representations are not necessarily provided to the decision maker.

284. (4) Decision considered in accordance with the published policy: I have accepted the Secretary of State's submission that the policy is intended to recognise that Article 3 cases are a discrete category that should be considered in the case of all FNOs, not just high risk FNOs. However, on the evidence, this is not how applications are treated. The decision making process that is mandated by the unpublished guidance has the result – if it is strictly followed - that no consideration is given to the provision of Schedule 10 accommodation in the case of a FNO who does not pose a high risk to the public. That is because in such a case it is not considered that a bail residence condition is necessary, and if a bail residence condition is not considered then it necessarily follows that Schedule 10 accommodation will not be considered. There is no evidence that caseworkers have been instructed to depart from the guidance on the decision making process, or that they do depart from that guidance. The evidence of the cases before the court indicates that in each of those 3 cases Schedule 10 accommodation was refused because the claimant was not considered to be a high risk. I do not accept that these were aberrant errors. The decisions made are consistent with the letter of the unpublished guidance and were repeatedly made by different caseworkers over a period of many months. The result is that the decisions are not made in accordance with the published policy.

285. (5) Notification of the decision: Nothing in the policy requires FNOs to be informed of a decision to refuse Schedule 10 accommodation made by a caseworker. There is no evidence that such refusal decisions are routinely provided in practice. Mr Metcalfe accepted that where a decision is made by a caseworker that a case is not eligible for Schedule 10 accommodation (with the result that the request is not passed to CCAT) the FNO will not be informed of the decision (unless it was in response to an application for Schedule 10 accommodation). The Claimants' cases are illustrations of this in practice.

286. It follows that the Secretary of State's policy for the provision of Schedule 10 accommodation does not come close to satisfying the irreducible minimum criteria which are necessary (and may not even be sufficient) to secure fairness. Procedural unfairness is inherent in the policy. The policy creates a real risk of unfairness in more than a minimal number of cases. The exacting test for demonstrating systemic unfairness is therefore satisfied. Further, I consider that it is satisfied by some margin. I have considerable doubts that the irreducible minimum criteria I have specified would be sufficient to secure fairness. There is force in Ms Dubinsky's submissions that much more is required in this particular context. The Secretary of State's policy is deficient in respect of each and every component of that irreducible minimum. The result is that not only is there a real risk of unfairness, that is the likely result in significant categories of case, A's case being a paradigm example.

Unsurprisingly, the Home Office have not sought to appeal this judgement.

In the absence of a revised policy, it is important to be conscious of the right forms to use when making an application and to ensure the right criteria is applied. Regular updates should also be requested and preparation be made for litigation where necessary to challenge delays in decision making, failures to correctly apply the eligibility criteria and delays in sourcing suitable accommodation.