Comment - Unlawful bail accommodation delays

BID’s Assistant Director Pierre Makhlouf reflects on a recent high court decision finding that aspects of the Government’s approach to providing bail accommodation for immigration detainees are unlawful:

Many of the clients that BID provides legal advice to require bail accommodation –provided by the government – in order to be able to apply for bail from detention. The provision of this accommodation, (known as Section 4(1)(c)), is frequently subject to severe delays, during which time our clients are unable to apply for bail, thus denying them access to justice.

BID has had long-standing concerns about these delays and the impact on clients’ access to justice, and the impact of continued, unnecessary detention on their mental and physical health.  We have for many years sought to persuade the Home Office that the system needed reform. We also began to systematically collect evidence on delays. We were invited to intervene in the case of Razai, a 2010 case considering systemic difficulties with government policy on providing accommodation.  A six month analysis of delays during 2013/14 resulted in the publication of our report “No Place To Go” in 2014, which set out very clearly the scale of the delays in the provision of bail accommodation. We were invited by the appellants’ solicitors to submit our evidence in the form of a witness statement.  Ahead of the hearing, we updated our research to reflect BID’s current caseload, which demonstrated that the delays had actually worsened since our 2014 report.   In his findings, the judge commended BID’s helpful evidence, which assisted him in ruling that aspects of how the system works in practice were unlawful – a decision that we are delighted with as reformed system will mean that clients should be able to access bail accommodation without delay.

Suthakar Sathanantham & Ors [2016] EWHC 1781 (Admin)

The case was decided on 21 July 2016, with a finding that the delays in reaching decisions as to whether or not to provide immigration detainees with ‘complex’ cases bail accommodation was unlawful. Mr Justice Edis found that the Secretary of State for the Home Department (SSHD) has a duty under Section 4(1)(c) of the Immigration and Asylum Act 1999 (the 1999 Act) to provide accommodation to persons held in immigration detention who wish to apply for bail.  The SSHD’s duty is one where she has to “act fairly and rationally” and in accordance with policy.

Reference is made by the judge to the case of Noorkoiv ([2002] EWCA Civ 770 where the Court of Appeal found that the obligation “to avoid delay in determining a person’s right to be released is a more intense obligation than the duty to try criminal cases within a reasonable time”. Therefore, “lack of resources and administrative necessity do not justify such delays”. Mr Justice Edis found that “There was, in each of these cases, unacceptable delay” despite the SSHD’s duty to resolve the cases, particularly where the evidence was that since 2010 there had been no decisions on Section 4(1)(c) applications and the appeal route under s103 of the 1999 Act ”has not been used by any of those affected by the slowing of the system”. The evidence provided by BID showed that a bail address “is an essential pre-requisite for a successful application”. Without such accommodation “applicants are detained for very long periods of time when they may be eligible for bail if accommodation had been found”.

Mr Justice Edis rejected the argument that the court did not have the power to consider the matter of the delays, as the Home Office was arguing that they were due to maladministration and therefore accountable only to the Parliamentary Ombudsman. He said: “The court guards its jurisdiction in cases involving liberty jealously. […] If the system is unlawful, the court will say so and leave it to the executive and parliament to remedy the position […]” and “On that basis the operation of  a system of this kind is justiciable”.

Further, the Home Office had acknowledged that a decision should have been made at an earlier stage in the cases and that “an offer of ‘least worst’ accommodation or a refusal of the application should have been communicated to each of these three claimants”. That would have allowed for appeals and for the cases to be referred to the First-tier Tribunal (FTT) who could be informed about the ‘least worst’ option and “decide whether to grant bail nevertheless”. By denying the applicants access to the FTT the system “allows detention for a long period without any effective recourse to a court [and] is not fair”. The delays in considering the applications meant that the duty to determine applications “fairly and rationally” had been breached and the system as “it is operated is unlawful”. The failure to consider S4(1)(c)  applications “within a reasonable time, or actually, at all” was not maladministration and was plainly reviewable on public law grounds.

Mr Justice Edis found that the Home Office had tried to find accommodation that was “approved as suitable”, and so enhance the claimants’ chance of applying for bail. But for some applicants it is possible that no accommodation will be found to be suitable by NOMS or the police. Significantly he found this to be surprising and said that had the claimants not been in immigration detention but simply subject to license “they would have had to live somewhere while on license”. The justice states: “I am not sure why it suddenly gets so difficult [to find an address] when they are in immigration detention […]”

Mr Justice Edis recommends “that the system is overhauled” and notes that NOMS is to carry out a pilot into a system to reduce delays. He further noted that “that the failures to the existing system must be addressed” when new arrangements for issuing accommodation are introduced under the Immigration Act 2016.

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Crafted by Tincan