NN v Secretary of State for the Home Department

Interim relief in public law proceedings is governed by the American Cyanamid test, modified for the public law context. The claimant must show a good arguable case, and the court must assess irremediable prejudice and the balance of convenience. Substantial weight may be given to the risk of serious harm to recognised victims of trafficking if support is withdrawn pending determination of the substantive challenge. The absence of evidence about an alternative administrative mechanism may prevent the court from treating that mechanism as an adequate safeguard. Where relief may affect a large group and has significant resource implications, the defendant should ordinarily have an opportunity to file evidence before a final decision on wider interim relief.

LP and NN, both recognised by the Secretary of State as victims of modern slavery or trafficking, brought judicial review claims challenging aspects of the policy governing support and residence decisions. They challenged the withdrawal of enhanced support 45 days after a positive Conclusive Grounds decision. NN also challenged the deferral of an ECAT leave decision until determination of an asylum claim.

Both claimants sought interim relief preventing reduction of their existing support. Shortly before the hearing, they also sought relief for all persons currently receiving support under the support duty. The court considered whether the claims were sufficiently arguable, the prejudice to the claimants if support were withdrawn, and the evidential and resource implications of wider relief.

1. The applications for interim relief were granted. The order maintained LP’s and NN’s existing levels of support until further order. Interim relief was also granted for persons similarly situated until the later rolled-up permission and general interim relief hearing.

2. The applicable test was the American Cyanamid test, modified for the public law context. The claimants had good arguable cases. In relation to the support-duty challenge, the Secretary of State’s concession in R(PK (Ghana)) v Secretary of State for the Home Department [2018] 1 WLR 3955 presented a significant obstacle to the Secretary of State’s position, although its continuation was under consideration. In relation to the scheduling rule, permission had been granted on similar grounds in R(JP) v Secretary of State for the Home Department (CO/4606/2018) and R(BS) v Secretary of State for the Home Department (CO/4608/2018).

3. The claimants faced irremediable prejudice if support were withdrawn. The evidence indicated risks to LP’s access to primary services and to her fragile mental health, and a comparable risk to NN having regard to his mental health difficulties. Those risks outweighed the financial consequences for the Secretary of State.

4. The suggested possibility of requesting an extension of support did not remove the need for interim relief. There was no evidence of the applicable criteria or the likely outcome. Submissions were not a substitute for proper evidence.

5. Wider relief required further evidence because it could affect many hundreds or possibly thousands of people and had significant resource implications. The Secretary of State was directed to file evidence within 14 days, with the claimants entitled to reply within seven days. A rolled-up permission and general interim relief hearing was directed before the end of term.