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

Interim relief in a public-law detention challenge must reflect both the prospects of establishing unlawful detention and the balance of convenience, including the public interest. Relief should be practical and should not require release into accommodation that is unsuitable for the claimant’s needs or risks. Where conditional immigration bail has been approved, the Secretary of State must use best endeavours to secure suitable accommodation and provide regular progress reports. The court may grant limited interim relief requiring continuing efforts and reporting rather than immediate release. A person may become subject to notification requirements under section 103(2) of the Sexual Offences Act 2003 on the making of a sexual harm prevention order, even without a relevant conviction.

EK, a protected party with serious mental-health and cognitive difficulties, challenged his continuing immigration detention. He sought anonymity, permission for judicial review, and interim relief requiring release to suitable accommodation under section 4 of the Immigration and Asylum Act 1999.

The challenge relied principally on the Hardial Singh principles, alleged delay in securing accommodation, and alleged breaches of equality and public-law duties. The First-tier Tribunal had granted bail in principle subject to a suitable address. An earlier urgent application before Choudhury J had led to an oral hearing. The central issues were whether there was a serious issue to be tried and what interim order was justified while suitable accommodation remained unavailable.

1. Anonymity. An anonymity order was necessary under CPR rule 39.2(4). EK’s status as a protected party and his serious mental-health difficulties justified derogation from open justice to protect his Article 8 rights.
2. Permission. Permission to apply for judicial review was granted on all five grounds. The first three grounds were plainly arguable; although the fourth and fifth grounds raised serious doubts, their interrelationship justified allowing all grounds to proceed.
3. Interim-relief test. The American Cyanamid principles, suitably modified for public law, applied. The claimant had to show a real prospect of establishing at trial that detention was unlawful. If that threshold was met, the court had to assess the balance of convenience, with the public interest as a relevant consideration. This approach was supported by R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin).
4. The grant of conditional immigration bail by the First-tier Tribunal was significant, but release still required accommodation suitable for EK’s complex mental-health, cognitive and safeguarding needs. The evidence did not establish that detention was worsening his mental health. The Secretary of State had made genuine efforts to find accommodation, and the Covid-19 pandemic had constrained supply and increased demand. An immediate release order, or an order requiring performance within an impracticably short period, would therefore have been inappropriate.
5. EK’s statutory notification requirements arose under section 103(2) of the Sexual Offences Act 2003 from the making of the sexual harm prevention order, despite the absence of a sexual-offence conviction. That circumstance was relevant to assessing the suitability of proposed release arrangements.
6. Some interim relief was nevertheless necessary. The Secretary of State was ordered to continue using best endeavours to source suitable accommodation, to report within two weeks on whether accommodation had been found and, if not, on the steps taken and reasons for failure, and thereafter to provide weekly reports. The claim was expedited and the matter reserved to the judge.

The judgment records an earlier urgent application for interim relief before Choudhury J on 17 June 2020. The present hearing was a first-instance Administrative Court determination of permission and interim relief.