Court mandates Home Secretary to provide suitable accommodation for detained individual with mental health condition: ER v Secretary of State for the Home Department

Citation: [2023] EWHC 3187 (Admin)
Judgment on

Introduction

The case of R (on the application of ER) v Secretary of State for the Home Department delves into issues surrounding the lawfulness of immigration detention, the rights of an individual with a complex mental health condition who is deemed an adult at risk and has a criminal record, as well as the procedural propriety of the Home Secretary in addressing bail accommodation requests. This judicial review scrutinizes the balance between public protection and the right to liberty within the context of immigration and mental health law.

Key Facts

ER, a Trinidad & Tobago national with schizoaffective disorder, detained under the Mental Health Act and classified as an “adult at risk,” challenges his immigration detention following a criminal conviction. After a signed deportation order, ER’s bail was granted conditionally without providing suitable accommodation, required due to the risk he poses. Prolonged detention ensues due to administrative delays, lacking responses to the ER’s legal representation, and apparent disregard for requests for legal visitation.

The court’s analysis turns on several legal principles, among them the ‘Hardial Singh principles’ governing the lawfulness of immigration detention, the duty to release under immigration bail granted with conditions, and provisions of the Immigration Act 1971 and Immigration Act 2016 concerning Schedule 10 accommodation. Furthermore, judicial review questions the failure to adhere to the Home Office’s policy which strongly favors liberty, especially for adults at risk.

The case law cites Humnyntskyi [2020] EWHC 1912 (Admin), [2021] 1 WLR 320 in understanding the scope of the power in paragraph 9 of Schedule 10, where bail terms do not have to specify an address to trigger the duty to provide accommodation. Additionally, the new Illegal Migration Act 2023 is implicated for its apparent extension of detention powers without full compliance with the established ‘Hardial Singh principles’.

The court underlines several instances of apparent unilateral administrative errors and procedural delays by the Home Secretary’s office, deeming them unacceptable, particularly in responding to legal visit requests and pre-action correspondence, and in issuing decisions regarding accommodation.

Outcomes

MR JUSTICE CHAMBERLAIN delivers a judgment indicating serious arguability and probative force that the Home Secretary has acted unlawfully concerning accommodation refusal. As a result, an interim relief is granted, mandating that the Home Secretary, in liaison with the Probation Service, identify suitable Schedule 10 accommodation within seven days, followed by the claimant’s release to that accommodation within three additional days.

Conclusion

The court heavily emphasizes the need for legality, urgency, and responsiveness within the process of granting immigration bail and the duty for suitable accommodation arrangements. It is critical that administrative delays and procedural errors not impede the rights of individuals, especially regarding liberty where mental health and at-risk status are significant factors. The judgment serves as a firm reminder of authorities’ obligations and suggests robust judicial oversight when procedural failures affect an individual’s core rights.

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