AC-2025-LDS-000036 - [2025] EWHC 2641 (Admin)

The Claimant’s first Ground of challenge is that 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. As already indicated the thrust of this challenge is that it was unlawful to apply the stated equivalence policy and (as a result thereof) the Asylum Accommodation Policy. Mr Holborn for the Defendant accepts that the starting point is the Schedule 10 Policy Guidance and that, if the application of the stated equivalence policy and, therefore, the Asylum Accommodation Policy is contrary to the Schedule 10 Policy Guidance, he accepts that the decision is unlawful.

Mr Ogilvie-Harris submitted that the two accommodation policies are different and that the unwritten policy of applying the standard equivalence policy means that the two policies are elided. In his submission the written Schedule 10 Policy Guidance requires the Secretary of State to do one thing, whereas the application of the unpublished stated equivalent policy requires her to do something different. He submitted that cannot be right. If a written policy requires one course of action and an unwritten policy requires another, he submitted the Secretary of State must adhere to the written policy unless there is a good reason not to do so.

The Schedule 10 Policy Guidance expressly provides that for vulnerable persons, including those with disabilities and medical needs, the level and type of accommodation allocated will vary according to individual needs. Suitable accommodation will be allocated according to the information available (See Paragraph 14 above). Mr Ogilvie-Harris submitted that in applying the Schedule 10 Policy Guidance the first question to be answered is whether the person being accommodated is vulnerable. If so, it will be necessary to look at what accommodation needs arise from that. He submitted, by way of example, that issues might arise such as an individual needing to be close to specialist medical services, or having disabilities such that they cannot walk up a hill. He pointed to the fact that level 3 accommodation is expressly for where there are specific accommodation related requirements which may relate to limitations on the type and or location of the accommodation. In this case, he submitted that the Secretary of State had evidence of the Claimant’s vulnerabilities including in particular his age (now 70), his inability to speak English, issues with his mobility and suffering from depression (albeit self-reported rather than medically diagnosed when the decisions were being made). The Claimant’s solicitors had drawn attention to these difficulties and to the Claimant’s difficulty in re-establishing community contacts and a support network of the type he had in Essex. The Claimant’s case is that in Essex he was supported, amongst other things, by community members providing him with free meals. Mr Ogilvie-Harris submitted that having assessed the vulnerabilities, and the needs flowing from the vulnerabilities, it would then be a question of determining whether the accommodation is at level 1, 2 or 3.

Unsurprisingly the Asylum Accommodation Policy states that it advises caseworkers on how to consider requests from people who are receiving asylum support and express particular needs or preferences as to where they are to be accommodated. The first point that Mr Ogilvie-Harris made is that this applies to those receiving asylum support and did not apply to the Claimant. Nevertheless, by applying the standard equivalence policy, the tests in the Asylum Accommodation Policy have been applied to the Claimant’s request to be allocated accommodation in Essex. He points to the fact that the Asylum Accommodation Policy provides that in general all types of asylum accommodation are suitable for most individuals receiving asylum support except those with the most serious physical and mental health needs.

The policy then goes on to say the overriding principle when allocating accommodation is that it is offered on a ‘no choice’ basis and that when considering requests to be allocated accommodation in a specific location, the decision-maker must consider whether there are exceptional circumstances that make it appropriate to agree to the request. Examples are given of exceptional circumstances, those examples being serious risks around health and safety or security, but these are examples and are not exclusive. The policy goes on to say that in rare cases, the strength of exceptional circumstances might make it appropriate to agree to the request to provide accommodation in a particular location despite the ‘no choice’ general rule (AB45-46).

Mr Ogilvie-Harris submitted that the two policies approach suitability in different ways. He submitted that the Schedule 10 Policy Guidance requires an assessment of suitability of the accommodation to be allocated on a merits basis and that the policy specifically includes location within suitability. He submitted that the suitability assessment must obviously include information relating to location where such information is provided. He submitted that under the Asylum Accommodation Policy location does not inform suitability unless exceptional circumstances arise under the ‘no choice’ policy. He submitted that the Asylum Accommodation Policy in effect declares all levels of accommodation suitable (except for those with the most serious physical and mental health needs) unless exceptional circumstances arise, and only in rare cases will the strength of exceptional circumstances make it appropriate to agree to provide accommodation in a particular location.

Mr Holborn submitted that suitability is the standard set out in the policies for both Schedule 10 accommodation and for asylum accommodation. Both sets of policy guidance deal with the provision of accommodation to meet the State’s obligation under Article 3 ECHR rights to those who would otherwise be destitute. He submitted that the “exceptional circumstances” test relates to something different, specifically the ‘no choice’ policy. He acknowledged that the ‘no choice’ policy is in writing only in the Asylum Accommodation Policy. He pointed me to the evidence of Daniel Belmore which explains the ‘no choice’ policy and its rationale (See Paras 18-20 above). He submitted that the effect of the ‘no choice’ policy is that an individual cannot choose within the suitable pool of accommodation unless there are exceptional circumstances. He submitted, in reliance on Mr Belmore’s evidence, that the system would otherwise be unworkable. He submitted that the ‘no choice’ policy, taken together with the exceptional circumstances test, is a discretion provided to depart from the ‘no choice’ policy, that is from the way in which suitable accommodation is allocated.

Mr Holborn further submitted that the exceptional circumstances test is not a restriction but rather a departure from, and expansion of, “suitability”. He submitted it does not change what is suitable accommodation, that suitability is the touchstone of both policies and that the question of whether the property in Sheffield is not suitable for the Claimant would be the same under both policies.

He submitted the SSHD is not saying “You cannot ask for a choice of accommodation”, but is instead applying perfectly rational criteria, namely exceptional circumstances, in the light of her ‘no choice’ policy. He submitted both policies produce the same result: that suitable accommodation will be allocated according to its availability, which he submitted says nothing about the ‘no choice’ policy, and the ‘no choice’ policy has nothing to say about this. He submitted that the use of the standard equivalence policy, and through that the application of the ’no choice’ policy is consistent, but just unpublished (which is not the challenge here).

Finally on this Ground, Mr Holborn submitted that I should not accept the Claimant’s 3 stage test (i.e. Is the Claimant vulnerable?; If so, what are his needs?; Is the accommodation suitable for those needs?). He submitted that is not the way to look at the Schedule 10 Policy Guidance.

Whist recognising the rationale behind the ‘no choice’ policy and the difficulties identified in the evidence of Daniel Belmore if a choice of accommodation were to be offered, in my judgment there is force in Mr Ogilvie-Harris’s submissions that the 2 policies are different, and that the SSHD has erred in law by applying the standard equivalence policy and the ‘no choice’ policy to this Claimant. However laudable and rational the reasons for applying the ‘no choice’ policy to those granted Schedule 10 immigration bail accommodation, as Mr Holborn rightly accepted, the Schedule 10 Policy Guidance is the starting point. He further accepted that if the application of the stated equivalence policy and, therefore, the Asylum Accommodation Policy is contrary to the Schedule 10 Policy Guidance, then the SSHD’s decision in this case is unlawful.

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.

Does location or can location inform suitability under the Schedule 10 Policy Guidance? In my judgment the drafting of the policy is such that location can, in appropriate circumstances, inform the decision as to suitability of accommodation. Under the Schedule 10 Policy Guidance suitable accommodation is to be allocated according to the information available and paragraph 2 of that policy guidance provides that the specific addresses are allocated by the accommodation provider (i.e. third party contractor) based on information provided by the Home Office in a referral. That referral may include, but is not restricted to the level of accommodation, known medical information, criminal history, probation requirements. As already discussed, the thrust of the bail accommodation policy is to deal with FNOs. It is hard to imagine a case relating to an FNO where location of accommodation is likely to be relevant to suitability. Most FNOs falling to be accommodated under this policy will be accommodated on release on licence from custodial sentences and pending deportation or other immigration issues. They are unlikely to have any attachment or relevant attachment to a particular area having served a custodial sentence.

However, that does not mean that location has no relevance. There is specific reference under level 2 to suitable accommodation being allocated based on the individual circumstances and level 3 refers specifically to requirements which may relate to the location of accommodation in which the person can be placed. Whilst that appears primarily to contemplate location being relevant to an assessment of risk based on offending history, in my judgment the policy cannot be read in such a way as to be limited only to offenders and offending history. Mr Holborn did not invite me to construe it in that way.

Elsewhere in the Schedule 10 Policy Guidance there is reference to suitable accommodation being allocated according to information available and reference to the need to consider vulnerabilities which may be disability, medical needs or [other] vulnerabilities. In this case the Claimant was said to be vulnerable by reason of his age and the difficulty he would have integrating into and making new community connections, particularly in view of his language difficulties. He was also reported to be depressed although there was no medical evidence to support that prior to the report of Dr Katona. The SSHD, therefore, had no medical evidence to support the claimed depression. There was medical evidence to support high blood pressure medication being prescribed and that was duly passed by the Secretary of State to a Home Office Medical Officer, who unsurprisingly concluded that such medication was readily available elsewhere in this country. Mr Holborn submits that all the vulnerabilities were properly taken into account.

The difficulty for Mr Holborn is that these issues were taken into account by the SSHD, 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. I well understand why the SSHD wishes to apply the no choice policy to all those being placed in Home Office provided accommodation, but in my judgment the two policies are different and require different approaches to suitability. 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.