Zalys, R (On the Application of) v Secretary of State for the Home Department

Where an interim mandatory injunction would substantially grant final relief in a public law claim, the claimant must show a particularly strong case. The court should be satisfied, to a high level of confidence, that the claimant will ultimately succeed, while recognising that the proceedings may be at an early stage.

The balance of convenience remains relevant. Preserving the status quo may justify continued detention where the court can determine the legality of detention finally and promptly at an expedited hearing. If a final determination within a short period is unavailable, factors including personal liberty, serious medical vulnerability and substantial uncertainty about removal may justify immediate release subject to conditions.

The claimant, a Lithuanian national detained under immigration powers, sought an interim mandatory injunction requiring his release. He relied on the Hardial Singh principles, the defendant’s Adults at Risk policy and article 3 of the European Convention on Human Rights. The article 3 ground was not pursued at the interim hearing.

The claimant had significant physical and mental health vulnerabilities, including respiratory disease, tuberculosis treatment, opioid dependency and reported symptoms of post-traumatic stress disorder. Removal to Lithuania was uncertain because of the pending appeal against deportation and restrictions on commercial flights. The defendant relied on public protection concerns and the risk of absconding or reoffending.

The central issues were whether the claimant had a strong case that continued detention was unlawful and whether interim release or an expedited final hearing was appropriate.

1. Interim relief. The application sought a mandatory order which would, in substance, provide final relief. The claimant therefore had to establish a particularly strong case. The appropriate formulation was whether the court was satisfied to a high level of confidence that he would ultimately prevail, subject to the limited factual material available at the interim stage [2020] EWHC 2029 (Admin) at [12]-[14].
2. The court then considered the balance of convenience. Under the guidance in American Cyanamid Company v Ethicon Ltd [1975] AC 396, preserving the status quo was a relevant prudential consideration. In this case, the status quo was continued detention pending a further hearing. The availability of a rapid rolled-up or expedited final hearing was an important factor when deciding whether to order an irreversible step such as release [2020] EWHC 2029 (Admin) at [15]-[17].
3. The claimant had established a strongly arguable issue under both the Hardial Singh principles and the Adults at Risk policy. The court granted permission to apply for judicial review on those grounds. The article 3 ground was not pursued at the hearing and was left for the claimant to consider [2020] EWHC 2029 (Admin) at [49]-[50], [64].
4. Despite the strength of the claimant’s case, the balance of convenience favoured continued detention because the legality of detention could be determined finally within approximately two to three weeks. The claimant’s medical condition, liberty interests and uncertainty about removal would have justified release with conditions if such a prompt final determination had not been available [2020] EWHC 2029 (Admin) at [53]-[58].
5. At the final hearing, the court would determine legality under the Hardial Singh principles and the Adults at Risk policy, without undertaking the interim balance-of-convenience exercise. The court directed an expedited substantive hearing during the following court term and indicated that the most recent detention review should be the public law target decision.