High Court finds Home Office system for allocating bail accommodation to immigration detainees is operating unlawfully

Friday 22 July 2016

In a judgment handed down on 21 July 2016, the High Court found that the Home Office system for allocating bail addresses to high-risk immigration detainees is operating unlawfully.

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Each of the three claimants in this case had been detained and applied for a bail address. Each had waited at least 18 months for allocation of an address, without which they could not make a meaningful application for bail. Two of them waited so long that they were ultimately released onto the streets with no accommodation at all because their detention risked becoming unlawful.

The three claims were brought as part of a test case by Leigh Day with the assistance of Bail for Immigration Detainees (BiD) following the release of BiD’s report - ‘No place to go: delays in provision of s4(1)(c) bail accommodation’ - which showed systemic problems and delays in the provision of bail accommodation to high risk immigration detainees.

Mr Justice Edis held that the delay in each case was “unacceptable” and went beyond mere maladministration. He rejected the Home Office position that the delays were not justiciable. He found that the system itself was being operated in a manner that was unlawful, and that in each case the time taken to resolve the application amounted to a breach of the Secretary of State’s duty to deal with applications fairly and rationally.

He held:

"It is... essential that the system is overhauled and entirely appropriate that there is to be a pilot by the National Offender Management Service of a system designed to reduce delays for which it is responsible. When arrangements come to be made under the Immigration Act 2016 the failures of the existing system must be addressed."

The Judge did not address the point at which the delays in processing the applications became unlawful. This ruling sets out the governing principles, and, where other individuals are experiencing such delays, it will be necessary to identify the point at which the “least worst” accommodation option should have been accepted and offered to the individual (see [85]-[94] of the judgment below). The delays at each stage of the three claimants' applications are summarised in Annex 3 to the Judgment (see [37]). It may well be that, applying those principles, delays of very much shorter duration may be unlawful, depending on the facts.

Stephanie Harrison QC, Anthony Vaughan and Greg Ó Ceallaigh of the Garden Court Chambers immigration and public law teams acted for the three successful claimants. They were instructed by Waleed Sheikh of Leigh Day. Pierre Makhlouf of BiD provided evidence in support of the claim.

The full judgment is available here.

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