Merca, R (on the application of) v Secretary of State for the Home Department

Where immigration detention has continued after bail and arrangements for release remain incomplete, the Administrative Court may grant interim relief requiring release by a specified deadline. The deadline must reflect the evidence, the period already available, the urgency of the case and any genuine operational difficulties. A grace period must be justified by the circumstances; an indefinite or unexplained delay is insufficient. The court may include liberty to apply and reserve variation or discharge to itself, while maintaining an open mind about later difficulties. Pandemic-related pressures are relevant, but they do not remove the need for focused, urgent and disciplined action.

The claimant had been detained since December 2019. The First-tier Tribunal granted bail on 7 April 2020, subject to suitable arrangements and probation approval. An application for accommodation under section 4 of the Immigration and Asylum Act 1999 was followed by an application under section 95 after the claimant asserted destitution.

The Secretary of State initially refused section 95 support on 26 May 2020, but reversed that decision on 29 May and accepted that accommodation should be provided. Arrangements remained incomplete by the hearing on 8 June. The issue was whether urgent interim relief should require release to section 95 accommodation by the following Friday.

1. Interim relief granted. The court ordered the Secretary of State to secure the claimant’s release to section 95 accommodation by 4pm on Friday 12 June 2020. The order included liberty to apply, with any application to vary or discharge reserved to the judge.
2. The court was entitled to impose a tight and enforceable timetable. The claimant had already spent a lengthy period in detention, bail had been granted, the section 95 refusal had been withdrawn, and no concrete release date had been identified. The Secretary of State accepted that release was required but could not provide a definite timeframe.
3. The period available for arrangements had to be assessed realistically. The Court of Appeal’s statement in AC (Algeria) [2020] EWCA Civ 36 that two weeks was ample in the circumstances supported the conclusion that any period beyond seven further days was unjustified. The approach in Qarani [2017] EWHC 507 (Admin), where seven days was sufficient despite special notification and residence requirements, provided further support.
4. Sathanatham [2016] 4 WLR 128 concerned particular difficulties associated with a high-risk case. The present case was not regarded as involving that level of risk. Probation approval and accommodation difficulties could be relevant to a later variation application, but the court made no finding in advance about what would amount to a good reason for variation.
5. The Covid-19 pandemic and its operational consequences were relevant considerations. They did not displace the conclusion that immediate court intervention was necessary and proportionate in the interests of justice. The defendant was ordered to pay the claimant’s reasonable costs of the hearing, to be assessed if not agreed.

The judgment was a first-instance decision on an application for interim relief in judicial review proceedings. On 29 May 2020, Cavanagh J directed the Secretary of State to explain the refusal of section 95 support and listed the interim-relief hearing. On 8 June 2020, Fordham J granted the requested relief.