Thye Loi Ho, R (on the application of) v Secretary of State for the Home Department

The Claimant, Thye Loi Ho, challenges the decision of the Secretary of State for the Home Department (“SSHD”) dated 23 October 2024 refusing his request that his immigration bail accommodation should be located in Essex, preferably near Southend (“the First Decision”). The Claim was issued on 23 January 2025 but was stayed by agreement of the parties pending the Claimant having to appeal, and send a pre-action protocol letter before claim, in relation to, a refusal to grant funding by the Legal Aid Agency. Legal Aid was granted on 9 April 2025 and the stay lifted thereafter. During the currency of these proceedings, further information was provided to the SSHD and a further decision was issued on 12 June 2025. The Claimant filed an application to amend his Grounds to cover the further decision on the basis that it amounted simply to confirmation of the earlier decision with supplementary reasons. If, as the Defendant asserts, it was a fresh decision, the Claimant’s application should have been to seek permission to challenge a further decision. However, both Counsel agreed that it would make no sense at all to consider the issues in the case without also considering the effect of the SSHD’s letter of 12 June 2025, which I shall refer to as the June 2025 decision. It was agreed that I should deal with all matters raised in the Amended Statement of Facts and Grounds, and that I should focus on the June 2025 decision. This effectively superseded the First Decision, although Mr Holborn submitted I should look at the decisions as a whole.

In his application dated 4 August 2025, the Claimant had also applied to adduce further evidence being a further Witness Statement from the Claimant dated 6 August 2025, and an expert psychiatric report by Dr Katona, dated 20 May 2025 but first served with the application. Mr Holborn, Counsel for the Defendant, opposed this application on the basis that neither document was available to the SSHD when the decisions were made. Whilst Counsel for the Claimant, Mr Ogilvie-Harris, accepted that in those circumstances they could not be relevant to any assessment of the SSHD’s decision making processes, he submitted they would be matters I could and should take into account if I reached the position of undertaking my own Article 8 proportionality assessment. Mr Holborn did not accept that, but I allowed the Claimant to adduce the evidence solely for the purpose suggested by Mr Ogilvie-Harris and subject to argument in the course of the substantive hearing as to whether or not I could properly consider it in that context.

References in this Judgment to the hearing bundle will be in bold type face, with the Tab letter and page number, for example D58. References to the authorities bundle will be by the letters AB followed by the page number, for example. AB63.

The Claimant is a Malaysian national who states that he arrived in the UK some time in 1999 on a 6-month tourist visa. He did not return to Malaysia on expiry of that visa and he states that he has remained in the UK ever since. There are four Witness Statements from him in the hearing bundle (E207-239, unhelpfully in reverse chronological order), none of which has been made in Cantonese despite his claims to have little English. Only one has been formally translated into written Cantonese, but even that does not comply with the CPR. The statements should have been in Cantonese (his language) and then translated into English for the Court. Mr Ogilvie-Harris assured me that the inadequacies in these statements had already been raised by him with his instructing solicitors, and I say no more about them. The position might have been different if the Defendant had challenged their admissibility.

It appears from his Witness Statements that during the first 5 – 6 years that the Claimant was in the UK, he moved around the country working illegally in various Chinese takeaways which provided him with accommodation. He was somewhat nomadic because of his various employers’ concerns as to his immigration status and his working illegally. He states that in August 2006 he moved to Southend to join another Malaysian male and remained there until 2024, working part time to reduce the risk of being arrested or getting his employer into trouble. (E234-236). Working enabled him to pay rent and basic expenses (E236, paragraph 21).

On 22 August 2024 the Claimant was arrested when Immigration Officers came across him when they attended his address looking for another resident. He was taken into detention at Tinsley House IRC pending removal. On 6 September 2024 the Claimant was served with Notice of Removal to Malaysia on 20 September 2024. On 26 September 2024 the Claimant lodged an application for further leave to remain (“FLR”) under the 20 years private life route. This application has not yet been determined. Removal directions were withdrawn and on 11 October 2024, the Claimant was granted immigration bail with suitable accommodation to be notified.

On 26 September 2024 the Claimant also applied for Immigration Bail Accommodation and Schedule 10 Support (D180 -205). The application included a request to be located in Essex, preferably near Southend

“…as this is the location of all his support networks. Given the extensive length of time our client lived in this area, we submit that a request to be accommodated clearly engages Article 8, therefore substantive and considered reasons must be provided should the Home Office seek to refuse this location request” (D197).

The application refers to the Claimant having lived at his previous address in Benfleet (from where he was arrested) for nearly 20 years and provided GP records from 2004 to August 2024 (D197). The application notes that the Claimant is a 69-year old man with high blood pressure, occasional dizziness and leg swelling (D196). The covering email from the Claimant’s solicitors states:

“Please note the location request: our client requires accommodation in the Essex area near Southend, as prior to his detention …he has been living there for over 20 years.” (D178).

On 23 October 2024 the Home Office issued the First Decision letter agreeing to grant the Claimant accommodation under Schedule 10 to the Immigration Act 2016, and acknowledging that the provision of accommodation was necessary to avoid breach of the Claimant’ human rights under Article 3 of the ECHR. The Home Office accepted that the Claimant did not have the means of obtaining adequate accommodation and that his outstanding application for FLR was a legal and practical obstacle to his returning home (i.e to Malaysia). However the Claimant’s request to be accommodated in Essex was refused in the following terms:

“Your individual circumstances have been carefully considered. However your request has been refused as we do not consider there are compelling circumstances that make it appropriate to agree to your request. Dispersal will now be on a no choice basis.” (D170).

On 30 October 2024 the Defendant notified the Claimant that he would be released from detention to accommodation in Sheffield. On 31 October 2024 the Claimant’s solicitors emailed the Defendant requesting accommodation be allocated in Essex, preferably near Southend, but if no accommodation was available then it would be adequate to offer accommodation in the south east of England. It was asserted that the offer in Sheffield was not compliant with the Claimant’s rights under Article 8 ECHR (C159). On 6 November 2024 the Defendant responded by email that without a valid medical reason the Section 10 accommodation unit cannot accept location requests. The email states that medical reasoning and medical evidence must be provided which would then be assessed by an in-house medical adviser (C158).

On 22 November 2024 the Claimant was relocated by the Defendant to an address in Sheffield. Various pre-action protocol letters and responses passed between the parties during November and December 2024. By a letter dated 9 December 2024 the Claimant’s solicitors wrote to the Defendant and, amongst other things, explained the Claimant’s links to Essex, his medical conditions, the support he received from friends in that regard, and the impact and social isolation that he was experiencing as a result of being located in Sheffield (C127-142). On 13 December 2024 the Defendant’s legal representatives responded (C121-126) stating, amongst other things, that the request to be accommodated in Essex had been refused “.. following the outcome of the home office medical advisers assessment…. and on the basis of “the evidence submitted to us and your client’s individual circumstances”. The letter states that the Claimant’s old age and health conditions have been taken into account and that there was no reason that his health conditions would deteriorate or that he could not obtain medical and support services elsewhere in the UK. It refuted the Claimant’s suggestion that the decision was in breach of the public sector equality duty. The letter refers to the Allocation of Asylum Accommodation Policy, a matter I shall return to when considering the Claimant’s Grounds.

On 12 June 2025 the Defendant filed and served an Acknowledgement of Service and Summary Grounds in Response in these proceedings. Attached was the June 2025 Decision. In the June 2025 Decision the Claimant’s request to be accommodated in Essex was refused in the following terms:

“The Home Office has carefully considered the circumstances of your application, including your request to be allocated accommodation in Essex, specifically near Southend, on the basis that you have lived in the area for nearly 20 years and have established support networks there. In support of this request you have provided three witness statements … dated 8 October 2024.. …31 October 2024… and 23 January 2025. These statements including assertion of community ties in Essex, have been considered as part of the overall assessment of your individual circumstances. However, it has been determined that the evidence provided is not sufficient enough to warrant an allocation of accommodation in Essex and your request has therefore been refused.

Whilst a support network does not fall within the typical reasons for granting an accommodation request outside of the general principle that Asylum Support accommodation under Schedule 10 is offered on a no choice basis, we have carefully considered your request.

It is noted you were able to establish a support network within the area despite having no previous connection to it on arrival and that you are capable of establishing a similar network in an area of relocation. As a result, it is not accepted that access to your raised support network is sufficiently exceptional to displace the no choice accommodation policy.

Your individual circumstances, including your long-term residence in Essex and the support network you have established there, have been carefully considered in light of your rights under Article 8 of the ECHR. While we acknowledge that relocation may impact your private life, we have balanced this against the Secretary of State’s duty to manage asylum accommodation fairly and efficiently, in line with the principle that Schedule 10 accommodation is provided on a no choice basis.

Having considered the evidence provided, we conclude that while there may be an interference with your Article 8 rights, any such interference is proportionate to the legitimate aim of ensuring the effective operation of the asylum support system and the economic well-being of the state. The Secretary of State is satisfied that the current accommodation arrangements are adequate and proportionate. The obligation to accommodate does not require provision in a specific locality in the absence of exceptional or compelling circumstances. The evidence provided does not establish that relocation to Essex is necessary to prevent a disproportionate interference with your Article 8 rights. Accordingly, your request for accommodation in Essex has been refused and dispersal will proceed on a no choice basis.

Your individual circumstances have been carefully considered. However your request has been refused as we do not consider there are compelling circumstances that make it appropriate to agree to your request. Dispersal will now be on a no choice basis.” (B111-112).

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:

•

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

•

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;

•

……

•

……

•

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.

The Claimant challenges the decisions in this case on four grounds:

The Claimant’s first Ground of challenge is that the Defendant misdirected herself as to the applicable law and policy in relation to immigration bail accommodation under Paragraph 9 of Schedule 10 to the Immigration Act. As already indicated the thrust of this challenge is that it was unlawful to apply the stated equivalence policy and (as a result thereof) the Asylum Accommodation Policy. Mr Holborn for the Defendant accepts that the starting point is the Schedule 10 Policy Guidance and that, if the application of the stated equivalence policy and, therefore, the Asylum Accommodation Policy is contrary to the Schedule 10 Policy Guidance, he accepts that the decision is unlawful.

Mr Ogilvie-Harris submitted that the two accommodation policies are different and that the unwritten policy of applying the standard equivalence policy means that the two policies are elided. In his submission the written Schedule 10 Policy Guidance requires the Secretary of State to do one thing, whereas the application of the unpublished stated equivalent policy requires her to do something different. He submitted that cannot be right. If a written policy requires one course of action and an unwritten policy requires another, he submitted the Secretary of State must adhere to the written policy unless there is a good reason not to do so.

The Schedule 10 Policy Guidance expressly provides that for vulnerable persons, including those with disabilities and medical needs, the level and type of accommodation allocated will vary according to individual needs. Suitable accommodation will be allocated according to the information available (See Paragraph 14 above). Mr Ogilvie-Harris submitted that in applying the Schedule 10 Policy Guidance the first question to be answered is whether the person being accommodated is vulnerable. If so, it will be necessary to look at what accommodation needs arise from that. He submitted, by way of example, that issues might arise such as an individual needing to be close to specialist medical services, or having disabilities such that they cannot walk up a hill. He pointed to the fact that level 3 accommodation is expressly for where there are specific accommodation related requirements which may relate to limitations on the type and or location of the accommodation. In this case, he submitted that the Secretary of State had evidence of the Claimant’s vulnerabilities including in particular his age (now 70), his inability to speak English, issues with his mobility and suffering from depression (albeit self-reported rather than medically diagnosed when the decisions were being made). The Claimant’s solicitors had drawn attention to these difficulties and to the Claimant’s difficulty in re-establishing community contacts and a support network of the type he had in Essex. The Claimant’s case is that in Essex he was supported, amongst other things, by community members providing him with free meals. Mr Ogilvie-Harris submitted that having assessed the vulnerabilities, and the needs flowing from the vulnerabilities, it would then be a question of determining whether the accommodation is at level 1, 2 or 3.

Unsurprisingly the Asylum Accommodation Policy states that it 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. The first point that Mr Ogilvie-Harris made is that this applies to those receiving asylum support and did not apply to the Claimant. Nevertheless, by applying the standard equivalence policy, the tests in the Asylum Accommodation Policy have been applied to the Claimant’s request to be allocated accommodation in Essex. He points to the fact that the Asylum Accommodation Policy provides that 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 policy then goes on to say the overriding principle when allocating accommodation is that it is offered on a ‘no choice’ basis and that when considering requests to be allocated accommodation in a specific location, the decision-maker must consider whether there are exceptional circumstances that make it appropriate to agree to the request. Examples are given of exceptional circumstances, those examples being serious risks around health and safety or security, but these are examples and are not exclusive. The policy goes on to say that in rare cases, the strength of exceptional circumstances might make it appropriate to agree to the request to provide accommodation in a particular location despite the ‘no choice’ general rule (AB45-46).

Mr Ogilvie-Harris submitted that the two policies approach suitability in different ways. He submitted that the Schedule 10 Policy Guidance requires an assessment of suitability of the accommodation to be allocated on a merits basis and that the policy specifically includes location within suitability. He submitted that the suitability assessment must obviously include information relating to location where such information is provided. He submitted that under the Asylum Accommodation Policy location does not inform suitability unless exceptional circumstances arise under the ‘no choice’ policy. He submitted that the Asylum Accommodation Policy in effect declares all levels of accommodation suitable (except for those with the most serious physical and mental health needs) unless exceptional circumstances arise, and only in rare cases will the strength of exceptional circumstances make it appropriate to agree to provide accommodation in a particular location.

Mr Holborn submitted that suitability is the standard set out in the policies for both Schedule 10 accommodation and for asylum accommodation. Both sets of policy guidance deal with the provision of accommodation to meet the State’s obligation under Article 3 ECHR rights to those who would otherwise be destitute. He submitted that the “exceptional circumstances” test relates to something different, specifically the ‘no choice’ policy. He acknowledged that the ‘no choice’ policy is in writing only in the Asylum Accommodation Policy. He pointed me to the evidence of Daniel Belmore which explains the ‘no choice’ policy and its rationale (See Paras 18-20 above). He submitted that the effect of the ‘no choice’ policy is that an individual cannot choose within the suitable pool of accommodation unless there are exceptional circumstances. He submitted, in reliance on Mr Belmore’s evidence, that the system would otherwise be unworkable. He submitted that the ‘no choice’ policy, taken together with the exceptional circumstances test, is a discretion provided to depart from the ‘no choice’ policy, that is from the way in which suitable accommodation is allocated.

Mr Holborn further submitted that the exceptional circumstances test is not a restriction but rather a departure from, and expansion of, “suitability”. He submitted it does not change what is suitable accommodation, that suitability is the touchstone of both policies and that the question of whether the property in Sheffield is not suitable for the Claimant would be the same under both policies.

He submitted the SSHD is not saying “You cannot ask for a choice of accommodation”, but is instead applying perfectly rational criteria, namely exceptional circumstances, in the light of her ‘no choice’ policy. He submitted both policies produce the same result: that suitable accommodation will be allocated according to its availability, which he submitted says nothing about the ‘no choice’ policy, and the ‘no choice’ policy has nothing to say about this. He submitted that the use of the standard equivalence policy, and through that the application of the ’no choice’ policy is consistent, but just unpublished (which is not the challenge here).

Finally on this Ground, Mr Holborn submitted that I should not accept the Claimant’s 3 stage test (i.e. Is the Claimant vulnerable?; If so, what are his needs?; Is the accommodation suitable for those needs?). He submitted that is not the way to look at the Schedule 10 Policy Guidance.

Whist recognising the rationale behind the ‘no choice’ policy and the difficulties identified in the evidence of Daniel Belmore if a choice of accommodation were to be offered, in my judgment there is force in Mr Ogilvie-Harris’s submissions that the 2 policies are different, and that the SSHD has erred in law by applying the standard equivalence policy and the ‘no choice’ policy to this Claimant. However laudable and rational the reasons for applying the ‘no choice’ policy to those granted Schedule 10 immigration bail accommodation, as Mr Holborn rightly accepted, the Schedule 10 Policy Guidance is the starting point. He further accepted that if the application of the stated equivalence policy and, therefore, the Asylum Accommodation Policy is contrary to the Schedule 10 Policy Guidance, then the SSHD’s decision in this case is unlawful.

Whilst I accept that suitable accommodation is the touchstone of the two policies, in my judgment there is force in Mr Ogilvie-Harris’s point that the Asylum Accommodation Policy mandates that all accommodation is suitable unless exceptional circumstances under the ‘no choice' policy comes into consideration. It follows that I accept his submission that under the Asylum Accommodation Policy, the location of accommodation does not inform suitability.

Does location or can location inform suitability under the Schedule 10 Policy Guidance? In my judgment the drafting of the policy is such that location can, in appropriate circumstances, inform the decision as to suitability of accommodation. Under the Schedule 10 Policy Guidance suitable accommodation is to be allocated according to the information available and paragraph 2 of that policy guidance provides that the specific addresses are allocated by the accommodation provider (i.e. third party contractor) based on information provided by the Home Office in a referral. That referral may include, but is not restricted to the level of accommodation, known medical information, criminal history, probation requirements. As already discussed, the thrust of the bail accommodation policy is to deal with FNOs. It is hard to imagine a case relating to an FNO where location of accommodation is likely to be relevant to suitability. Most FNOs falling to be accommodated under this policy will be accommodated on release on licence from custodial sentences and pending deportation or other immigration issues. They are unlikely to have any attachment or relevant attachment to a particular area having served a custodial sentence.

However, that does not mean that location has no relevance. There is specific reference under level 2 to suitable accommodation being allocated based on the individual circumstances and level 3 refers specifically to requirements which may relate to the location of accommodation in which the person can be placed. Whilst that appears primarily to contemplate location being relevant to an assessment of risk based on offending history, in my judgment the policy cannot be read in such a way as to be limited only to offenders and offending history. Mr Holborn did not invite me to construe it in that way.

Elsewhere in the Schedule 10 Policy Guidance there is reference to suitable accommodation being allocated according to information available and reference to the need to consider vulnerabilities which may be disability, medical needs or [other] vulnerabilities. In this case the Claimant was said to be vulnerable by reason of his age and the difficulty he would have integrating into and making new community connections, particularly in view of his language difficulties. He was also reported to be depressed although there was no medical evidence to support that prior to the report of Dr Katona. The SSHD, therefore, had no medical evidence to support the claimed depression. There was medical evidence to support high blood pressure medication being prescribed and that was duly passed by the Secretary of State to a Home Office Medical Officer, who unsurprisingly concluded that such medication was readily available elsewhere in this country. Mr Holborn submits that all the vulnerabilities were properly taken into account.

The difficulty for Mr Holborn is that these issues were taken into account by the SSHD, not for the purposes of assessing the suitability of accommodation, but on the basis that whatever accommodation the Claimant was provided with would be suitable, and that these issues were relevant only to the exceptional circumstances test in considering whether to depart from the ‘no choice’ policy. I well understand why the SSHD wishes to apply the no choice policy to all those being placed in Home Office provided accommodation, but in my judgment the two policies are different and require different approaches to suitability. In my judgment the Schedule 10 Policy Guidance requires an assessment of suitability (which in most cases will present no difficulty) before the allocation of accommodation. I accept Mr Ogilvie-Harris’s submission that the Asylum Accommodation Policy effectively does the reverse by mandating that all accommodation is suitable, and that the only way in which location could become relevant would be for the purposes of establishing exceptional circumstances for an individual seeking to have the ‘no choice’ policy dis-applied. It follows that the challenge in Ground 1 succeeds and that the decision must be quashed.

The Claimant’s second Ground of challenge is that the Defendant, in determining where the allocated accommodation would be located, (i) failed to take into account the Claimant’s particular circumstances, (ii) failed to give adequate reasons and/or (iii) acted irrationally. In the light of my ruling on Ground 1, I can deal with this and the further Grounds relatively shortly.

There is a dispute between the parties as to the extent to which the various claimed vulnerabilities were before the decision-makers at various times during the progression of the decision making process. I do not consider it necessary to go through the decisions and analyse what matters were available for consideration and when, or the extent to which they were considered. Such an analysis makes no difference given that any matters which were considered were in fact considered in the context of the wrong Policy, that is in the application of the ‘no choice’ policy and the exceptional circumstances test.

The Claimant’s case is that the SSHD failed to take into account the following matters:

Mr Ogilvie-Harris submitted that, if these matters had been taken into account, the Defendant would have determined that the Claimant was vulnerable and that he needed to be accommodated in Essex. He submitted no weight was given to the above factors in considering suitability of accommodation precisely because they have been approached in the context of the no choice policy and the exceptional circumstances test. The June 2025 letter expressly states “… It is not accepted that access to your raised support network is sufficiently exceptional to displace the no choice accommodation policy”. Given my finding on Ground 1, in my judgment this challenge must inevitably also succeed. I recognise that the decision in relation to location may not be different, but that decision must be taken in the light of the correct policy and without applying the ‘no choice’ policy taken from a different policy which does not apply to the Claimant.

Inevitably the June 2025 letter also fails to give adequate reasons precisely because the reasons are directed to the wrong policy. So far as the challenge of irrationality is concerned, it is asserted that the Defendant cannot rationally decide the Claimant is not vulnerable. It is asserted that, whilst there is no definition of vulnerability in the policy, one would consider it self-evident that a 70-year-old man who speaks limited English and has health conditions is vulnerable. It is further asserted that the needs which arise from that are that the Claimant needs to remain close to his community and support network and that it was therefore irrational to determine that the accommodation which met his needs was accommodation offered in Sheffield. I make no findings as to whether the Defendant cannot rationally decide the Claimant is not vulnerable. However, I do accept that the decision can be challenged as irrational on the basis that the wrong policy tests have been applied. Ground 2 succeeds.

The Claimant’s third Ground of challenge is that the Defendant breached Section 6 (1) of the Human Rights Act 1998 in respect of her violation of the Claimant’s procedural and substantive rights under Article 8 of the ECHR. For the purposes of these proceedings, Mr Holborn told me the SSHD accepts that Article 8 is engaged insofar as the accommodation decision is concerned. He was concerned to point out that for the purposes of that decision the SSHD had taken the Claimant’s statements about his living circumstances at face value and that I would have to do the same if I were to undertake a proportionality assessment. He was clear that the SSHD has not investigated matters and that I should make no findings which could bind the SSHD in connection with the outstanding immigration decision for the Claimant, and that no concessions are made in relation to the factual basis which will inform the outstanding immigration decision.

Most of the argument on this Ground was directed to how I should undertake a proportionality assessment, which would only arise if I had otherwise found the decision making process to be proper and the decision not otherwise open to challenge. Given my findings on Grounds 1 and 2 it is unnecessary for me to carry out a proportionality assessment, and having considered the matters carefully, I do not consider it necessary for me to address the competing arguments as to the extent of any Article 8 interference, as to whether less intrusive measures were available or as to the applicability of S117A and S117B Nationality, Immigration and Asylum Act 2002 on the particular facts of this case.

The Claimant’s fourth Ground of challenge is that the Defendant failed to comply with Section 149 of the Equality Act 2010 in respect of the Claimant’s disability. This challenge is now academic in the light of my findings on Ground 1. The consideration of the PSED by the SSHD was inevitably in the context of the application of the incorrect policy. Having said that there was force in Mr Holborn’s submissions that the Claimant’s submissions overstate the requirements when suggesting the SSHD should have called the Claimant in for a medical assessment. Mr Holborn pointed to the Schedule 10 Accommodation application form where the SSHD invites the applicant to tell her about any individual circumstances for the applicant that she should be aware of and includes a list of relevant examples, being pregnancy, physical health problems, learning disabilities, victim of domestic violence, mental health problems and “other”. The information provided there in respect of the Claimant is “Our client is a 69-year-old man with high blood pressure, occasional dizziness and leg swelling” (D196). Mr Holborn reminded me that the PSED duty is to have due regard to eliminating discrimination. Here the SSHD provides an application form allowing information to be given about medical conditions. If such conditions arise, the Secretary of State sends the information to the Home Office medical adviser. Mr Holborn submitted there is no basis for saying that is an irrational approach, and in my judgment there is considerable force in that submission. I make no decision in this respect as I have already indicated that in the light of my finding Grounds 1 and 2 are made out, I take the view this challenge is now academic.

Mr Holborn submitted that the decision in this case would be no different whichever accommodation policy is applied to the Claimant. That may be right but I do not consider I am in a position where I could properly conclude that it is highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred.

I find Grounds 1 and 2 are made out and that the allocation decision must be quashed, and must be remade with reference to the correct policy and without applying the no choice policy. The Claimant seeks mandatory relief including orders for the Defendant to provide accommodation to the Claimant in or nearby Essex or that she should expedite a decision on the Claimant’s application for leave to remain. In my judgment neither order is appropriate. The Defendant must remake the decision with reference to the correct policy, but it does not follow that accommodation will necessarily be allocated in or nearby Essex. Those are matters for the decision-maker when applying the correct policy. Nor is it appropriate for me to order expedition of the Claimant’s application for leave to remain, particularly in circumstances where the pressures on the making of immigration decisions are well known and well publicised.

It follows that the relief will be a quashing order, and an order that the decision be remade applying the Schedule 10 Policy Guidance.