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

Schedule 10 of the Immigration Act 2016 deals with immigration bail. By Paragraph 9(2) of Schedule 10 the Secretary of State may provide or arrange for the provision of facilities for the accommodation of a person on immigration bail at an address specified. By Paragraph 9(3) of Schedule 10, that power applies only to the extent that the Secretary of State thinks that there are exceptional circumstances which justify the exercise the power. There is no dispute in this case that the grant of immigration bail accommodation was pursuant to that power, and was granted on the basis that the Claimant had nowhere else to live and would otherwise have been destitute and on the street, which would plainly be a breach of his rights under Article 3 ECHR.

The Immigration Bail – Interim Guidance, Version 4.0 (AB85-103) was the relevant policy at the time of the First Decision. It has a section dealing with the provision of accommodation, types of bail accommodation, requests for accommodation, and refusal of accommodation (AB96-98). It lists three different levels of bail accommodation which are relevant to the challenge in this case. However, with effect from 31/1/25 it was replaced by the Accommodation Under Schedule 10 to the Immigration Act 2016 Guidance, version 1.0 (“the Schedule 10 Policy Guidance”) (AB21-39). That mirrors the three levels of accommodation, with some additional explanatory wording. It was in force at the time of the June 2025 Decision and counsels’ submissions were based upon this later policy. In those circumstances I consider it unnecessary to set out the detail of the earlier policy.

The Schedule 10 Policy Guidance has a section on bail accommodation. Much of the policy is focussed on foreign national offenders (FNOs) and the risks they may present. None of that applies to the Claimant. However there is no dispute that his case falls within the policy which, so far as relevant to this case, includes the following:

“There are 3 levels of bail accommodation. The level of accommodation allocated to a person is based on their individual circumstances, including offending history and any known disabilities or medical needs.

The specific address is allocated by the accommodation provider based on information provided by the Home Office in a referral, which assists the provider to source suitable accommodation. The referral may include but is not restricted to the level of accommodation, known medical information, criminal history, probation requirements.

The levels are:

Level 1- initial accommodation………

Level 2- dispersal accommodation.

This is generally high, multiple-occupancy accommodation which contains individual accommodation but often with shared common spaces

This level of accommodation:

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accommodates loan adult males. They do not share accommodation with families or lone females

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is likely to be suitable for the majority of FNOs- suitable accommodation will be allocated based on the individual circumstances, including offending history…..

Level 3- complex cases

There is no separate accommodation type for this level.

Level 3 is assigned to complex cases where there are specific accommodation related requirements. The specific requirements may relate to limitations on the type and/or location of the accommodation in which the person can be placed, due to the risk the person poses based on their offending history or to the type of accommodation required due to the persons known disabilities or medical needs.

It may involve increased provider liaison with the relevant local authority and police in sourcing appropriate accommodation. For example, a specific location or exclusion area could be requested such as how far the service user should be from local amenities or schools……..

This level of accommodation may be appropriate;

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……

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……

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Where there are accommodation related needs based on the persons disability, medical needs or vulnerabilities -this could relate to accessibility needs

For vulnerable persons including those with disabilities and medical needs, the level and type of accommodation allocated will vary according to individual needs and level 3 may not be required in every case. Suitable accommodation will be allocated according to the information available.

The level and type of accommodation allocated must be reviewed in light of any new relevant information.” (AB33-34)

The authorities bundle contains Versions 12 and 13 of the Allocation of Asylum Accommodation Policy. Version 12 (AB63-84) was the relevant guidance at the time of the First Decision, and Version 13 (AB40-62) was issued on 4 June 2025 and was thus the guidance in place at the time of the June 2025 Decision. The relevant part of the policy for the purposes of this judgement is unchanged between Versions 12 and 13 and counsels’ submissions were addressed to Version 13. I shall confine myself to Version 13 and will refer to it as the “Asylum Accommodation Policy”.

The Asylum Accommodation Policy states that

“ This guidance 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. ” (AB43).

It further states as follows:

“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 overriding principle when allocating accommodation is that it is offered on a ‘no choice basis’. Accommodation is intended for those who would otherwise be destitute and have no other viable accommodation open to them for example through friends or family.

…….

Accommodation is provided in all areas of the UK where the Home Office has a supply of accommodation available and ready to use. In considering requests to be allocated accommodation in a specific location, you must consider whether there are exceptional circumstances that make it appropriate to agree to the request. Exceptional circumstances should be considered on a case by case basis but may include, for example, serious risks around health and safety or security. In rare cases, the strength of the exceptional circumstances might make it appropriate to agree to the request to provide accommodation in a particular location, despite the ‘no choice’ general rule.” (AB44-45).

It is the SSHD’s case that she has a policy that the same approach to accommodation allocation planning is applied in Schedule 10 cases as for those in receipt of asylum support accommodation, a policy described by Fordham J in R(BLZ)v SSHD [2025] EWHC 153 (Admin) as “the stated equivalence policy”. It is a useful shorthand to describe the policy which was adopted by Counsel in this matter. The stated equivalence policy is not a written or otherwise published policy. The effect of applying it is that the express ‘no-choice’ policy contained in the Asylum Accommodation Policy is applied to allocation of Schedule 10 Bail accommodation even though the Schedule 10 Policy Guidance contains no express “no choice” provision.

I have a Witness Statement dated 19 August 2025 from Daniel Belmore of the Home Office Enforcement and Criminality Policy Unit explaining the rationale behind the application of the ‘no choice’ policy in allocating accommodation provided under Schedule 10 (B80 -86). In summary, the Home Office contracts with a number of third party accommodation providers in the regions. The same pool of accommodation is used for Schedule 10 accommodation as for those accommodated under the Immigration and Asylum Act 1999. Accommodation is intended for those who would otherwise be destitute and have no other viable accommodation open to them, such as through friends or family.

The system was developed in response to the growing need to “disperse” the burden falling upon local authorities in London and the South East who had a disproportionate number of asylum seekers to accommodate. Daniel Belmore explains that the rationale of the dispersal system would be significantly undermined by providing recipients with a choice of where to be accommodated and would risk the majority of recipients choosing to be accommodated in London or the South East, or in other major cities, which would then impact upon local housing provision as well as place increased demands on local educational and health services in those areas. Further, an approach giving choice would likely result in further dispersal delays as individuals would have to wait longer for accommodation in their chosen area to be made available. By using the no choice policy, supported individuals can be dispersed once an appropriate property becomes available, meaning that their destitution is alleviated more quickly or, where appropriate, their stay in hotels is shortened. Delays in dispersal lead to greater hotel use at great cost to the public purse. The efficient use of ‘no choice’ accommodation allows for accommodation to be provided at lower cost to the tax payer and in a manner which allows for people to be accommodated in adequate accommodation in as fast a manner as possible.

Daniel Belmore notes that accommodation under Schedule 10 is intended to be provided for a limited period whilst the person makes arrangements either to leave the UK or to move to alternative accommodation. It is not intended to be for a long period, nor is it intended to be where someone settles. He states that if the Home Office were to provide recipients of Home Office accommodation with a choice of where the accommodation is located, not only would that undermine the purpose of the statutory schemes, but it would be administratively unworkable and excessively expensive.

The stated equivalence policy is not challenged as unlawful, nor is there any pleaded challenge based on the stated equivalence policy not being in writing. However, it is at the centre of the Grounds of challenge in this case. The Claimant’s challenge is that the application of the ‘no choice’ policy and other aspects of the Asylum Accommodation Policy is contrary to the stated Schedule 10 Policy Guidance, making the decision in this case unlawful.