Housing policy for destitute migrants held to be unlawful

Nina Rathbone Pullen, Rebecca Harrigan and Hannah Watkins – the solicitors for two of the claimants.

The Home Office has now confirmed that it has not sought permission to appeal the High Court’s order and judgment in R (on the application of Humnyntskyi & Ors) v Secretary of State for the Home Department [2020] EWHC 1912 (Admin). We represented two of the appellants.

The judgment of the High Court holds the government’s regime for housing certain destitute immigrants to be so unfair as to be unlawful. In a judgment highly critical of the Home Office, Mr Justice Johnson observed that the Secretary of State’s policy is deficient in respect of each and every component of the irreducible minimum criteria for fairness. The Judge found that this resulted not only in a real risk of unfairness, but that unfairness was the likely result in significant categories of case.

One of the claimants (‘A’) had spent nine months living in a tent as a result of the denial to him of accommodation by the Home Office. 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. Another claimant (‘WP’), a schizophrenic woman who gave a history of rape while previously street homeless, was found to have been unlawfully detained under the immigration Acts – her detention had been prolonged while the Home Office failed to grant her accommodation. Although the Home Office was aware of WP’s vulnerability and despite warnings in Home Office 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.

The Home Office will now be required to redraft its policies and processes for the accommodation of certain destitute immigrants.

Further detail

The three claimants in the case were foreign nationals who had been convicted of offences in the UK and brought a challenge to the lawfulness of the Secretary of State’s regime for providing accommodation to destitute immigration detainees released or seeking release from immigration detention under Paragraph 9 of Schedule 10 of the Immigration Act 2016. The denial of accommodation for those eligible can result in individuals being held in detention for prolonged periods and/or being released to or left in street homelessness potentially in breach of their human rights.

Policy and practice declared unlawful

Para 9 of Sch. 10 of the Immigration Act 2016 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.

The Judge found that the SSHD’s policy and practice for granting Sch. 10 accommodation are systemically unfair in that they fail to satisfy the following irreducible minimum criteria which are necessary to secure fairness:

1. Ability to make representations
2. Notification of criteria and process
3. Decision considered in accordance with the published policy
4. Notification of the decision

Mr Justice Johnson commented that even those minimum criteria may not even be enough to secure fairness.

The Judge also found that the Home Secretary had unlawfully applied unlawfully narrow and rigid criteria in determining who was eligible.

Individual relief

The claimant A sought damages for breach of his Article 3 rights as a result of a lengthy period of street homelessness and WP sought damages for unlawful detention. The claimant Mr Humnyntskyi sought a declaration that he had been detained unlawfully. The Judge declared that each of the Claimants should receive the relief they individually claimed.

Commentary

Nina Rathbone Pullen, partner in the Public Law department at Wilson Solicitors LLP, said

‘this judgment is a very important recognition of the unfairness and arbitrariness to which the Home Office subjects destitute immigrants in need of accommodation and the appalling human costs of Home Office errors and delays.   The judgment should lead to a root and branch revision of the Home Office’s approach’.

Representation

The claimants WP and A were represented by Wilson Solicitors LLP. Mr Humnyntskyi was represented by Deighton Peirce Glynn. The claimants’ counsel team comprised Laura Dubinsky of Doughty Street Chambers who led Agata Paytna, Marisa Cohen (both of Doughty Street Chambers) and Eleanor Mitchell of Matrix Chambers.

If you wish to contact us about this case or wish to instruct us on a similar case Nina Rathbone Pullen is available, n.rathbone-pullen@wilsonllp.co.uk or call 0208 808 7535 to find out how we can assist you.