Disabled people in immigration bail: the duties of the Home Office and local authorities

The High Court has ruled that the Home Office has been systemically failing to provide safe and suitable accommodation to disabled applicants, and has given guidance on the interaction between Schedule 10 accommodation and the Care Act 2014. Stephanie Harrison KC, Nadia O’Mara and Isaac Ricca-Richardson analyse its findings.

On 29 January 2025, Fordham J handed down judgment in two linked cases: BLZ No. 1 (R (BLZ) v Secretary of State for the Home Department [2025] EWHC 153 (Admin)) and (BLZ No.2: R (BLZ) v Leeds City Council [2025] EWHC 154 (Admin)). 

Both related to the same claimant, who had been released from immigration detention without any proper planning by the Home Office, or consideration of how his physical and mental disabilities resulted in eligible needs under the Care Act 2014 and necessitated adapted accommodation that was safe for him. 

As a result, BLZ was repeatedly placed in accommodation with stairs (notwithstanding his high risk of seizures and falls) and without adequate care. During that period, he suffered serious falls, accidental medication overdoses, and at one point, was advised to confine himself to his room and urinate in bottles. 

Key findings against the Home Office 

After a legal battle lasting well over a year and encompassing four contested interim relief hearings and an eight-day final hearing, Fordham J held that there were significant deficits in the Home Office’s policy and practice for dealing with disabled people in immigration bail. They included: 

1. An unlawful failure to have arrangements in place for the discharge of the function of considering potential care and support needs and local authority referrals. 
2. An unlawful ‘policy gap’ due to the absence of any written policy helping to identify whether a person may have eligible care needs and requiring the Home Office to refer such persons to a local authority. 
3. A breach of the Public Sector Equality Duty (“PSED”), due to the failure to monitor data regarding the provision of bail accommodation to disabled persons, and the absence of any Equality Impact Assessment (“EIA”) in this context.  
4. An unlawful failure to make reasonable adjustments to the release planning process for disabled persons with complex or high-level needs, including due to the lack of any effective system for prioritising such cases.  

In addition, in BLZ’s own case, Fordham J held that the Home Office had breached the limited written policy it did have, by failing to comply with the Detention Services Order to convene a multi-disciplinary meeting prior to BLZ’s release from detention, at which provision could have been made to ensure he was released safely. As a result, the Home Office was held to have placed BLZ in unsafe and unsuitable accommodation in breach of its statutory duties and the Equality Act. 

By way of relief on PSED ground, Fordham J made a mandatory order requiring the SSHD to extend (as soon as reasonably practicable) the system for collating and monitoring statistical data, established by the SSHD following the mandatory order in DXK [2024] EWHC 579, so that it applies to all foreign national offenders (including those in Schedule 10(9) IA 2016 accommodation), and to carry out and publish an EIA.  

Building on, and going further than, the mandatory order in DXK, Fordham J included “a liberty to apply to set a deadline in respect of both aspects, in light of the striking history of the absence of monitoring seen in DMA and DXK” (§68) (more on that here).

Human rights arguments  

Fordham J agreed that the Defendant had failed to enact effective systems to prevent foreseeable risks of delay in Care Act 2014 needs being met, and that the case studies provided by Bail for Immigration Detainees and Medical Justice were “properly illustrative of the importance of a system that proactively considers potential care and support needs”.  

Despite this, Fordham J rejected the Claimant’s arguments that the system for the provision of accommodation created a real risk of breaches of fundamental rights, and that the Defendant had failed to put in place policy and effective systems arrangements to prevent foreseeable risks to life and/or serious harm, in breach of the Article 2/3 European Convention on Human Rights (ECHR) systems duty.   

Fordham J also concluded that the operational duty had not been breached because, on the facts of the Claimant’s case, the Defendant neither knew, nor ought to have known, about a risk of serious harm posed by the accommodation. 

The Claimant is considering whether to apply to the Court of Appeal for permission to appeal on Fordham J’s application of the relevant tests.  

Accommodation under Schedule 10 IA 2016 is ‘residual’ and ‘legally irrelevant’  

In the second case (BLZ No.2), against Leeds City Council, BLZ challenged the lawfulness of care needs assessments carried out by the local authority, arguing inter alia that he had eligible needs for care and support which included ‘accommodation-related needs’, such that the duty to provide him with accommodation lay with the local authority under the Care Act 2014 rather than the Home Office under Schedule 10(9) Immigration Act 2016 (and that Leeds City Council had erred in concluding otherwise).  

It is now well-established that Home Office asylum support (whether provided under s. 95 or 4(2) of the Immigration and Asylum Act 1999) is ‘residual’ and ‘legally irrelevant’ to the Care Act 2014: any suggestion to the contrary was put to bed in the case of R (TMX) v London Borough of Croydon & Anor [2024] EWHC 129 (Admin) (a case in which Gráinne Mellon and Nadia O’Mara of Garden Court acted for the successful claimant, see more here). 

In the first published authority on the interplay between the Care Act 2014 and Schedule 10(9) IA 2016, Fordham J resolved this issue in BLZ’s favour and held that Home Office bail accommodation is similarly residual and legally irrelevant (§§38-40).  

Fordham J went on to dismiss BLZ’s claim for judicial review. In doing so, he made novel findings of law as to the meaning of ‘residual’ and ‘legally irrelevant’ accommodation, holding that a decision-maker can take account of the accommodation a person is in (including Home Office accommodation) when assessing what needs a person has and whether they are eligible, but must disregard that accommodation at the ‘duty’ and ‘action’ stages of deciding what provision (including accommodation) must be made by the local authority (§37).  

The Judge also, surprisingly, held that the need for ‘safe home equipment’ or adaptions cannot constitute an ‘accommodation-related’ eligible need for care and support, triggering a local authority’s duty to accommodate under s18 of the Care Act 2014 (§§46-51). 

Agreeing that these legal points (which informed his findings as to the lawfulness of the underlying care needs assessment) crossed the arguability threshold with a ‘real prospect’ of success on appeal, Fordham J granted BLZ permission to appeal to the Court of Appeal (§60).

BLZ was represented by Stephanie Harrison KC, Nadia O’Mara and Isaac Ricca-Richardson of the Garden Court Public Law & Immigration Law Teams, and Grace Capel of the Doughty Street Chambers Public Law & Immigration Law Teams, instructed by Ben Goldberg, with assistance from William Shelley, at Turpin Miller Solicitors.

Bail for Immigration Detainees and Medical Justice provided evidence in support of the claim.