Following persistent concerns over the lack of any transparent process for accessing Home Office accommodation under Schedule 10 of the Immigration Act 2016, the Home Office has published new guidance shortly before the High Court was to hear a challenge brought by a homeless Syrian asylum seeker, “MSM”, who argued that the system for accessing Schedule 10 accommodation was unlawful.
MSM was represented by Anthony Vaughan and Connor Johnston of Garden Court Chambers, instructed by Helen Mowatt at the Public Interest Law Unit at Lambeth Law Centre, with key evidence being provided by the Asylum Support Appeals Project.
MSM had been destitute and had made further representations to the Home Office in support of his claim for asylum. These further representations had not been recognised as amounting to a “fresh claim”. The First-tier Tribunal (Asylum Support) had held that MSM was not entitled to support either as an “asylum seeker” under s 95 or as a “failed asylum seeker” under s 4(2) of the Immigration and Asylum 1999 Act because his initial asylum claim was deemed withdrawn and his further submissions had not yet been “recorded” as a fresh claim. The FTT(AS) noted that MSM may apply for support under paragraph 9 of Schedule 10 to the 2016 Act.
However, MSM’s attempts to apply for such support were unsuccessful due to the absence of any adequate application process for support applications under Schedule 10. MSM had made numerous requests to relevant Home Office departments and contractors for Schedule 10 accommodation, but was given conflicting and incorrect information; and never managed to have his request for accommodation considered.
MSM had been left facing street homelessness, and was only accommodated by the kindness of supporters including Refugees at Home and acquaintances.
The Home Office had been well aware of the problems caused by the lack of a proper application process for Schedule 10 accommodation from at least February 2018, when in response to the concerns expressed by the NGO sector, the Home Office agreed to draw up a ‘clarified process’, but never did so.
In November 2018 MSM issued judicial review proceedings challenging the absence of an adequate application process or policy for making and deciding requests for accommodation under Schedule 10, as well as the failure and delay in deciding MSM’s eligibility for Schedule 10 accommodation despite being eligible for such support. Following the issuing of the claim, MSM was accommodated by the Home Office on an interim basis. Permission to apply for judicial review was granted on 28 January 2019.
A few weeks before the judicial review had been due for hearing, the SSHD has published a revised version of the Immigration Bail policy (on 5 April 2019), which includes new guidance on ‘Those who are likely to require accommodation under paragraph 9 to avoid a breach of their Article 3 rights, if they do not have accommodation or the means of obtaining it’ and who are not eligible to receive accommodation under either s95 or s4(2) of the 1999 Act (page 56). The guidance includes an example of those persons in MSM’s situation (those whose asylum claims have been withdrawn, or treated as withdrawn by the Home Office, but who have since made further submissions and those submissions have not yet been recognised as a fresh claim).
A new application form (BAIL 409) is created, and details as to where the application form is to be sent, as well as who to contact for an update on the progress of the application are provided: see the form and “Requests for accommodation” at page 58 of the new policy.
An application process underpinned by a published policy has now therefore been created for the cohort of people in MSM’s situation when the claim was issued, who were eligible for but previously unable to access Schedule 10 accommodation and support.
However, many questions/ difficulties remain as to the process to be followed, and in the operation of the Schedule 10 scheme, particularly in cases involving other categories of applicant such as those detained under immigration powers.
- Form Bail 409 is not supposed to be used by everyone who is detained. Although it is stated only to apply to non-offenders and those who have not claimed or been refused asylum (page 58 of the policy), the precise category into which a detainee falls may be difficult to ascertain in practice even for a lawyer, let alone a detainee. A useful summary of the different routes to apply for Schedule 10 support from detention is explained by Pierre Makhlouf, from Bail for Immigration Detainees
- The policy states that Form Bail 409 is not supposed to be used by those who have committed criminal offences (page 58), and the bail application forms (B1 / Bail 401) do not provide space to explain why there are exceptional circumstances. While it may be advisable for offenders to address the applicable criteria from Form Bail 409 within their application for bail (or application for variation of bail conditions), the timescale for a decision on the accommodation application is unclear. This may impact upon the bail application in various ways;
- There is no emergency procedure for accessing Schedule 10 accommodation;
- The policy does not acknowledge that those with outstanding Article 8 ECHR representations face a barrier to removal, even though this is established by case law.