R (on the application of WP (POLAND)) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2020)

What Happened

A 38 year-old Polish national was admitted to a psychiatric ward in 2019 having been found partially clothed and wandering outside. Her medical records showed an extensive history of mental health issues, and led to a conclusion that she was not fit to be detained and should instead be taken to hospital.

In December 2019 she was sentenced to 2 weeks’ imprisonment for public order offences. The decision was made to send her to an immigration detention centre and seek her removal from the UK.

C appealed this decision, which was delayed due to the COVID19 pandemic.

On 22nd Febuary 2020 a rule 35 report completed by a medical practitioner highlighted that C’s mental state would deteriorate if she were kept in detention.

On the 25th Feb the defendant (the secretary of state (SSHD)) requested further evidence of the risk of C’s wellbeing deteriorating, before granting accommodation under schedule 10 of the Immigration Act 2016.

On the 5th March the defendant accepted that C qualified as a level 2 risk, so should therefore be released from the detention centre when accommodation was found for her.

The SSHD officially confirmed C was entitled to accommodation under sch. 10 on the 2nd April. However, due to COVID, they stated they could give no timeframe for when accommodation would be available.

C complained that there was an unreasonable delay in the SSHD confirming she was entitled to accommodation under sch.10. She said that it was clear from as early as January (when she was first placed in the detention centre) that she was vulnerable, yet it still took four months to confirm her eligibility. She said that the application should have started well before April.

What was found

Schedule 10 para.1 of the Act confers powers on D to grant bail to a detained person. 

Schedule 10 para.9 confers the power to provide accommodation to a person who has been bailed if the defendant believed that there were exceptional circumstances which justified the exercise of that power.

Very importantly for the exercise of functions during the Covid 19 period under the Care Act easements, the court found that even though there was only a power, rather than a statutory duty to grant immigration bail at all, it carried with it, there was an obligation to determine an application for sch.10 accommodation fairly and rationally, and to act reasonably to obtain accommodation within a reasonable period.

The SSHD policy stated that if a person was under bail, did not have access to accommodation and ‘faced imminent suffering due to the denial of food, shelter and basic necessities’, then they should consider if there was a duty to provide accommodation under ECHR art.3 (freedom from inhuman or degrading treatment).

There was no doubt that C was eligible for accommodation to be provided by the SSHD. Therefore this placed an obligation on the SSHD to find accommodation in a timely manner.

The Court then had to consider whether the Secretary of State had taken reasonable steps to find accommodation without excessive delay, and if it had failed to do so, then the Court could make an interim order.

Here the Court was sympathetic to D’s circumstances, dealing with unforeseeable challenges during a worldwide emergency. However, after considering C’s history, and the fact that she had been detained for 4 months despite medical professionals expressing concern for her wellbeing, the Court granted an interim order.

The order gave the SSHD 7 days to make accommodation available for C.

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