Home Office accommodation policy for destitute immigrants declared unlawful

The Government Legal Department confirmed today that the Home Secretary had 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).

Three claimants Oleh Humnyntskyi, A and WP (Poland) successfully challenged the Secretary of State’s policy and practices concerning accommodation for destitute immigrants under paragraph 9, Schedule 10, Immigration Act 2016.

A had spent nine months living in a tent as a result of the denial to him of accommodation by the Secretary of State. He was unable to wash, eat regularly, and lacked electricity and 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. WP, a woman diagnosed with schizophrenia, who gave a history of rape while previously street homeless, was held to have been unlawfully detained – 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.  Mr Humnyntskyi was also held to have been unlawfully detained.  All three claimants were foreign nationals who had been convicted of offences in the UK.  They each suffered severe delays in determining whether they were eligible for accommodation. 

The claimants were represented by Laura Dubinsky leading Marisa Cohen and Agata Patyna, all of Doughty Street Chambers and Eleanor Mitchell of Matrix Chambers. The claimants’ solicitors were Wilson Solicitors LLP (for A and WP) and Deighton Pierce Glynn (for Mr Humnyntskyi).  

The Administrative Court found that the Home Office’s policy and processes were systemically unfair and that the Home Office had applied unlawfully narrow criteria to determine eligibility for accommodation.

 Mr Justice Johnson held:

‘… 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.’

The Home Office will now be required to redraft its policies and processes concerning accommodation under paragraph 9, Schedule 10, Immigration Act 2016.