Administrative Court gives guidance on the interpretation of the Home Secretary’s policy on determining the suitability of immigration bail accommodation
Public Law and Judicial Review, Housing, Local Government
In the recent decision, R (on the application of Thye Loi Ho) v Secretary of State for the Home Department [2025] EWHC 2641 (Admin), the Administrative Court has given guidance on the interpretation of the Home Secretary’s Accommodation Under Schedule 10 to the Immigration Act 2016 Guidance, version 1.0 (‘the Schedule 10 Policy Guidance’) insofar as it relates to the suitability of accommodation provided under schedule 10 of the Immigration Act 2016 (‘immigration bail accommodation’).
Paragraph 9 of Schedule 10 gives the Home Secretary a power to provide accommodation to those on immigration bail where there are exceptional circumstances justifying this. This can include circumstances where there would be a breach of the Human Rights Act 1998 if accommodation were not provided. This power applies only to those who could be subject to immigration detention powers, such as those who overstay their visas or foreign national offenders facing deportation.
Her Honour Judge Belcher held that, for immigration bail accommodation, the Home Secretary is required to assess the suitability of accommodation under the Schedule 10 Policy Guidance before making an allocation of accommodation. In particular, the Home Secretary is required by the policy to identify whether “there are accommodation related needs based on the persons disability, medical needs or vulnerabilities”. If so, then “the level and type of accommodation allocated will vary according to individual needs”.
Jeremy Ogilvie-Harris acted for the successful claimant, instructed by Lily Parrott of Duncan Lewis Solicitors. This case was funded by Legal Aid.
The case
The Claimant was a Malaysian national aged 70 who stated that he arrived in the UK some time in 1999 on a 6-month tourist visa. He did not return to Malaysia on expiry of that visa and he stated that he has remained in the UK ever since. His case was that he had lived in Southend, Essex for almost 20 years and built up a community in that area.
On 22 August 2024 the Claimant was arrested when Immigration Officers came across him when they attended his address looking for another resident. He was taken into detention at Tinsley House IRC pending removal. On 26 September 2024 the Claimant lodged an application for further leave to remain under the 20 years private life route. On 11 October 2024, the Claimant was granted immigration bail with suitable accommodation to be notified.
The Claimant’s solicitors had requested that the Claimant be allocated accommodation in or near Southend, Essex, because this was the location of all his support networks and, due to the length of time he had lived there, his rights under article 8 of the Convention on the Protection of Fundamental Rights and Freedoms (‘ECHR’) was engaged.
By two letters dated 23 October 2024 and 12 June 2025, the Home Secretary refused this request on the basis that accommodation was allocated on a “no choice basis” and there were insufficiently exceptional or compelling circumstances to allocate the Claimant accommodation in Essex.
The grounds
The Claimant challenged these decisions on four grounds:
- Ground 1: the Defendant misdirected herself as to the applicable law and policy in relation to immigration bail accommodation under Paragraph 9 of Schedule 10 to the Immigration Act 2016.
- Ground 2: the Defendant, in determining where the allocated accommodation would be located, (i) failed to take into account the Claimant’s particular circumstances, (ii) failed to give adequate reasons and/or (iii) acted irrationally.
- Ground 3: the Defendant breached Section 6 (1) of the Human Rights Act in respect of her violation of the Claimant’s procedural and substantive rights under Article 8 of the ECHR.
- Ground 4: the Defendant failed to comply with Section 149 of the Equality Act in respect of the Claimant’s disability.
In particular, the Claimant argued that the following factors had not been properly taken into account as a result of Grounds 1 and 2:
- The Claimant had been living for 20 years in Essex and has built up a community and support network in the area which included friends, neighbours and acquaintances.
- The Claimant is elderly, now 70 years old, and by virtue of being elderly, would find it more difficult to establish new relationships having moved to a new area.
- The difficulty the Claimant would experience in building a new community and support network as a result of speaking limited English.
- The risk of the Claimant being isolated and the impact that would have on his well-being and mental health.
- The upheaval and disruption that the relocation would cause to the Claimant.
The decision
The judicial review was heard by Her Honour Judge Belcher sitting as Deputy High Court Judge. The Claimant had argued that the Home Secretary erred in law because, by applying the “no choice basis” policy and setting the threshold for determining suitability at exceptional or compelling circumstances, she had misapplied the Schedule 10 Policy Guidance. Those tests were set out in the Allocation of Asylum Accommodation Policy Version 13 (‘the Asylum Accommodation Policy’), but that policy only applied to asylum seekers, not to those provided accommodation under schedule 10. In response, the Home Secretary argued that she had applied a “stated equivalence policy” that, regardless of whether a person was allocated accommodation under the Nationality, Immigration and Asylum Act 2002 (‘asylum support’) or Schedule 10 to the Immigration Act 2016, the determination of suitability of their accommodation should be the same. In reply, the Claimant submitted that the provisions on suitability in the Schedule 10 Policy Guidance and the Asylum Accommodation Policy were inconsistent, and it was unlawful to depart from the Schedule 10 Policy Guidance.
HHJ Belcher accepted the Claimant’s submissions. She gave the following guidance:
- Whilst I accept that suitable accommodation is the touchstone of the two policies, in my judgment there is force in Mr Ogilvie-Harris’s point that the Asylum Accommodation Policy mandates that all accommodation is suitable unless exceptional circumstances under the ‘no choice’ policy comes into consideration. It follows that I accept his submission that under the Asylum Accommodation Policy, the location of accommodation does not inform suitability.
38 […] In my judgment the Schedule 10 Policy Guidance requires an assessment of suitability (which in most cases will present no difficulty) before the allocation of accommodation. I accept Mr Ogilvie-Harris’s submission that the Asylum Accommodation Policy effectively does the reverse by mandating that all accommodation is suitable, and that the only way in which location could become relevant would be for the purposes of establishing exceptional circumstances for an individual seeking to have the ‘no choice’ policy dis-applied. It follows that the challenge in Ground 1 succeeds and that the decision must be quashed.
The correct approach under the Schedule 10 Policy Guidance, therefore, is to assess whether an individual to whom immigration bail accommodation is provided has vulnerabilities, and if so, whether “there are accommodation related needs based on the persons disability, medical needs or vulnerabilities”. Then, “the level and type of accommodation allocated will vary according to individual needs”.
On the facts of the case, the Home Secretary had erred in law because, while she had referred to the Claimant’s vulnerabilities, she had done so “not for the purposes of assessing the suitability of accommodation, but on the basis that whatever accommodation the Claimant was provided with would be suitable, and that these issues were relevant only to the exceptional circumstances test in considering whether to depart from the ‘no choice’ policy”: §38. Thus, HHJ Belcher held at §42 that “[g]iven my finding on Ground 1, in my judgment [Ground 2] must inevitably also succeed”.
For those reasons, both Grounds 1 and 2 succeeded, and the Home Secretary’s decisions were quashed, with the decision being remitted to the Home Secretary. HHJ Belcher did not consider it was necessary to determine Grounds 3 and 4.
About the barrister
Jeremy Ogilvie-Harris is a public law and human rights barrister at Cornerstone Barristers with experience in housing, homelessness and housing allocations, welfare benefits, planning and environment, energy, protest and information and data protection. He has a busy judicial review practice, mostly representing claimants. Jeremy is ranked by Legal 500 as a Leading Junior for Social Housing and as a Rising Star for Administrative Law and Human Rights.
