Shu Shin Luh and Agata Patyna secure order for provision of bail accommodation for vulnerable victim of trafficking

In R (on the application of ER) v Secretary of State for the Home Department [2023] EWHC 3187 (Admin) Mr Justice Chamberlain ordered Home Secretary to accommodate a vulnerable migrant, ER, within seven days. 

ER suffers from schizoaffective disorder and has been detained under the Mental Health Act 1983 several times. He is an "adult at risk" within the meaning of the Home Secretary's policy. He is a victim of trafficking for forced labour and the Home Secretary has accepted (pending his further investigation of his case) that there are reasonable grounds to suspect that he has been subjected to modern slavery. He had been granted bail by the First-tier Tribunal (Immigration and Asylum Chamber) but his release from detention was prevented for months because the Home Secretary had not provided him with bail accommodation. The SSHD had erroneously refused ER’s applications for accommodation under schedule 10 Immigration Act 2016 but did not communicate those refusals to him or his representatives until after proceedings were issued.

In granting interim relief, the Court identified five ‘very concerning features’ of the case which included:

  1. Delays in arranging access for ER’s solicitors to see him in detention. The Court described the apparent lack of a system in place to respond promptly to request for legal visits as ‘wholly unacceptable’

  2. Failure by the Home Secretary to engage in pre-action correspondence challenging the lawfulness of ER’s detention, which the court described as ‘offhand and unacceptable’,

  3. Failure by the Home Secretary to set out his position as to whether he considered that ER’s detention had been lawful, even after the Court had directed him to file evidence. 

  4. The Home Secretary’s suggestion that ER could make yet another application for schedule 10 accommodation despite the previous refusals. 

  5. It was ‘strongly arguable’ that the refusals of schedule 10 accommodation were unlawful, including because one of them was based on a ‘straightforwardly false’ statement that ER had not been granted bail. 

The Secretary of State was ordered to pay ER’s costs of the application for interim relief on an indemnity basis.

Shu Shin Luh represents ER in his judicial review claim, instructed by Leigh Day solicitors. Agata Patyna represented ER at the interim relief hearing.