Court of Appeal

High Court Declares Home Office Policy Unlawful

The High Court rules Home Office policy to be so inherently unfair, that it’s unlawful.

In a judgment handed down on 21 July 2020, the High Court found the Home Office’s policy on accommodating destitute migrants was systemically unfair and unlawful. The Home Office has now confirmed that it has not sought permission to appeal the High Court’s judgment in R (on the application of Humnyntskyi & Ors) v Secretary of State for the Home Department [2020] EWHC 1912 (Admin).

The case was brought by three claimants who had each been affected by the Home Office’s unlawful policy. Of the claimants, DPG acted for Mr Hymnyntskyi whom the High Court found had been unlawfully detained by the Home Office for a period of almost 3 months. The other two claimants, ‘A’ and ‘WP’ were represented by Wilson Solicitors LLP.

Mr Justice Johnson delivered this important judgment, which lays bare the unfairness and arbitrariness inherent in the Home Office’s policy towards accommodating destitute migrants. He identified five irreducible minimum criteria he considered the Home Office’s policy must satisfy to secure fairness, thereby being lawful. Having done so, he made the striking observation that “[t]he Secretary of State’s policy is deficient in respect of each and every component of that irreducible minimum. The result is that not only is there a real risk of unfairness, that is the likely result in significant categories of case…”.

Mr Justice Johnson’s emphatic conclusion made clear that this was not a matter of the Home Office’s policy requiring mere tweaks to be lawful. He stated:

“It follows that the Secretary of State’s policy for the provision of Schedule 10 accommodation does not come close to satisfying the irreducible minimum criteria which are necessary (and may not even be sufficient) to secure fairness. Procedural unfairness is inherent in the policy. The policy creates a real risk of unfairness in more than a minimal number of cases. The exacting test for demonstrating systemic unfairness is therefore satisfied. Further, I consider that it is satisfied by some margin.”

The Home Office will now be required to redraft its policies and processes concerning the provision of accommodation to certain destitute migrants under paragraph 9, Schedule 10, Immigration Act 2016.

Mr Hymnyntskyi is represented by Joanna Thomson and Mark Hylands of Deighton Pierce Glynn instructing barristers Laura Dubinsky Doughty Street Chambers and Eleanor Mitchell of Matrix Chambers.
‘A’ and ‘WP’ are represented by Wilson Solicitors LLP also instructing Laura Dubinsky, together with barristers Agata Paytna and Marisa Cohen both of Doughty Street Chambers.

Mr Justice Johnson’s judgment can be viewed here.

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