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Detainees with indefinite leave to remain not entitled to Home Office accommodation

Detainees with indefinite leave to remain not entitled to Home Office accommodation

An immigration detainee who has indefinite leave to remain must apply to their local council for housing benefit rather than for a bail address or asylum support provided by the Home Office. R (AT (Guinea))) v Secretary of State for the Home Department [2019] EWHC 2709 (Admin) is about the interaction between mainstream benefits for people not subject to immigration control, and support for those in the immigration system. AT unusually fell into both groups; he had previously been granted indefinite leave to remain but had claimed asylum when the Home Office tried to deport him.

Entitlement to mainstream benefits

AT was granted bail in principle by the First-tier Tribunal on three occasions. As is often the case, the judge was happy for AT to be released into the community, but wanted him discharged to a stable address. Unfortunately, AT was not able to provide that for himself, so he applied to the Home Office for asylum accommodation under section 95 of the Immigration and Asylum Act 1999.

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When rejected, he appealed that decision to the asylum support arm of the First-tier Tribunal. The appeal was dismissed on the ground that he was not “destitute” within the meaning of the legislation because he could apply for support from his local authority.

Nigel Poole QC, sitting as a deputy High Court judge, agreed with the specialist social support judge:

The Claimant was, until 22 January 2019, a person with indefinite leave to remain. Accordingly, whilst the appeal against his deportation order was pending, he was not under “immigration control” for the purposes of the 1999 Act, and therefore he was not excluded from eligibility to benefits under s.115 of the 1999 Act. Those benefits included housing benefit. Thus, the Claimant was, at all relevant times, not excluded from eligibility for housing benefit and other social security benefits. As such he had the means of obtaining adequate accommodation upon his release from detention, were that to occur. Under s.95(3)(a) of the 1999 Act he was not destitute. Accordingly, he was not entitled to the provision of support under that section.

For the same reasons, the judge also concluded that AT was not entitled to bail accommodation under Schedule 10 of the Immigration Act 2016:

For the avoidance of doubt, it is clear in my judgement that Schedule 10 did not apply at the earlier date of 16 May 2018. At that time the Claimant was granted bail on condition of being offered schedule 10 accommodation. He was however entitled to benefits and so would have been able to support himself at an address if one had been specified. Further, since no specific address was identified in the bail application or grant of bail, it is difficult to see how Schedule 10 would be engaged, notwithstanding the reference to it in the condition for bail granted by the First-tier Tribunal.

The judge was also quite critical of AT for having failed to make proper enquiries about local authority support:

I have seen little evidence that the Claimant took steps to secure benefits or accommodation support to which he was entitled. Some correspondence has been provided from after the First-Tier Tribunal’s decision that s.95 did not apply, but there is generally a lack of evidence of timely or sustained engagement with the local authority or other authorities and agencies. It was not argued before me that the Claimant would not have been granted benefits or which he was potentially entitled. I have not been provided with evidence that the Secretary of State obstructed the Claimant from seeking benefits and support to which he was potentially entitled.

As a result, Nigel Poole QC rejected AT’s claim that the Home Office had behaved irrationally when refusing to provide him with accommodation.

He also rejected AT’s separate claim that he had been unlawfully detained despite the serious delays in obtaining travel documents from the Guinean authorities highlighted by AT’s representatives. In this case, travel documents were authorised in “early 2019” but had not been provided by the time of the hearing in September. 

Home Office support as a last resort

This case seems to suggest that having indefinite leave to remain makes it more difficult to obtain a bail address. AT was granted accommodation as a failed asylum seeker quickly once his asylum appeal had been refused and a deportation order made against him. However, we know from other cases (such as this report on DM (Tanzania) by Bilaal) that the process of obtaining bail accommodation from the Home Office is incredibly slow. It appears that AT did not appreciate the need to apply for housing benefit and that he could have applied for a grant of bail conditional on the local authority providing him with housing support.

The important lesson to take away from this judgment is that the High Court will not look kindly on claims brought by people who blame the Home Office for failing to provide bail accommodation before they have exhausted other types of social assistance.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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