Humnyntskyi & Ors, R (On the Application Of) v Secretary of State for the Home Department

These three separate claims for judicial review concern, in their area of intersection, the legality of the Secretary of State’s policy approach to the exercise of her power under paragraph 9 of Schedule 10 of the Immigration Act 2016 to provide accommodation to those who are granted immigration bail. In each of these cases the Secretary of State did not provide bail accommodation:

A (see paragraphs 79 - 101 below) was detained for a period of 11 months. A grant of bail, initially subject to a residence condition, was not effective because A

WP (see paragraphs 102 - 143 below) was detained for a period of 4 months. Requests for accommodation did not receive a favourable response. WP withdrew a bail application because of the lack of accommodation and her concerns about being homeless. In these proceedings, an order was made for interim relief requiring the Secretary of State to provide accommodation. Such accommodation was provided. WP seeks damages for unlawful detention. My findings in WP’s case are at paragraphs 222 - 247 below.

Each of the Claimants contends that the refusal to provide accommodation was unlawful and had deleterious consequences (loss of liberty in the cases of Mr Humnyntskyi and WP; street homelessness in A’s case). They also each say that the system for providing Schedule 10 accommodation is inherently unfair and that it is unlawful both by reason of unfairness and because the Secretary of State has fettered her discretion as to the circumstances in which she will provide accommodation. My findings on these “common claims” are at paragraphs 248 - 297 below.

The Secretary of State accepts that individual decisions made in A’s case and WP’s case were unlawful (accepting “flagrant” errors in A’s case). She expresses regret, but says that these were “aberrant errors” by individual caseworkers, that her policy is fair and lawful and she has not fettered her discretion. She argues that (beyond the concessions as to illegality and the consequences that flow from that) the claims should be dismissed because they are now academic: Mr Humnyntskyi has now been removed from the United Kingdom, A and WP have each been provided with accommodation.