Q & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

Where asylum-support applications regularly establish at least an arguable case for interim relief, the Secretary of State must maintain an adequate and efficient decision-making procedure. Further representations engaging Article 3 should be considered promptly and in accordance with the Court of Appeal’s guidance. Upon an indication of an immediate judicial-review application, interim support should normally be granted or continued without a court order while the claim is considered. Out-of-hours applications should be reserved for truly exceptional cases. The court will generally avoid abridging time for an Acknowledgment of Service and will expect the Secretary of State to identify promptly whether a substantive hearing is required.

Eight related applications concerned the operation of section 55 of the Nationality Immigration and Asylum Act 2002, particularly the withdrawal or refusal of asylum support and accommodation. The claimants relied on section 55 and Article 3, and sought permission for judicial review and interim relief. The Secretary of State did not oppose permission or interim relief in the seven cases remaining before the court. Shelter made representations as an interested party. The central issue was whether general guidance was required to reduce avoidable litigation and ensure lawful, timely decision-making.

Permission was granted and interim relief was continued in each of the seven remaining cases. Anonymity orders were made where necessary. The court then issued general guidance.

1. The high success rate of applications showed that the Secretary of State needed an adequate and efficient procedure for deciding further representations under section 55 of the Nationality Immigration and Asylum Act 2002. The procedure had to apply the Court of Appeal’s guidance, deal with self-evidently urgent matters within an appropriate timescale, and avoid generating unnecessary applications to the Administrative Court.
2. Officials had to be properly instructed and must not rely on generic stereotyping while disregarding accepted evidence relevant to individual applications.
3. The Secretary of State had power under section 55(5)(a) to provide or continue emergency accommodation without a court order where necessary to avoid a breach of Convention rights. That power did not presuppose an established breach. The court expressed no concluded view on whether a legal duty to provide accommodation arose in some circumstances.
4. On receiving an indication of an immediate judicial-review application, the Secretary of State should normally grant or continue interim support pending consideration of permission or further order. If the claim was considered unarguable, that should ordinarily be communicated within 24 hours.
5. Claimants’ advisers should provide detailed representations and should use out-of-hours procedures only in the most exceptional circumstances. The court would not normally abridge time for an Acknowledgment of Service. Within 14 days after permission, the Secretary of State should state whether a substantive hearing was anticipated; otherwise a draft consent order would normally be expected.

Costs in the underlying applications were reserved.