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

The claimant, a protected party with significant mental health and cognitive impairments, sought an anonymity order, interim release to accommodation under section 4(2) of the Immigration and Asylum Act 1999 and permission to apply for judicial review of his immigration detention. The court made an anonymity order under CPR r 39.2(4) to protect the claimant's Article 8 rights. The judge granted permission to apply for judicial review on all grounds, finding grounds 1–3 arguable and, despite doubts, permitting argument on grounds 4–5 as linked issues. In considering interim relief the court applied the American Cyanamid principles, adapted for public law, and the Hardial Singh principles governing detention. The court concluded there was a serious issue to be tried but declined to order immediate release to accommodation when none could realistically be sourced; instead the court ordered the Secretary of State to use best endeavours to find suitable accommodation, to file a statement within two weeks confirming whether accommodation had been found or explaining steps taken, and to provide weekly updates until suitable accommodation was secured. The court reserved further consideration and ordered expedition of the claim.

The claimant (EK), detained under a deportation order and with a complex history of offending, psychiatric diagnoses and cognitive impairment, applied for (i) anonymity under CPR r 39.2(4), (ii) interim release to suitable accommodation under section 4(2) of the Immigration and Asylum Act 1999, and (iii) permission to apply for judicial review of his ongoing detention on five grounds. The grounds included alleged breaches of the Hardial Singh principles (delay and lack of realistic prospect of removal), failure to take reasonable steps to secure accommodation, and alleged breaches of the Equality Act 2010 and the common law duty of enquiry.

Procedural posture: the claim was issued after pre-action correspondence and prior interlocutory consideration by Choudhury J, who listed the interim relief application for hearing. The defendant filed a detailed Acknowledgement of Service and grounds of defence supported by detention reviews, progress reports and medical records. The court conducted a remote oral hearing.

The court considered whether there was a serious issue to be tried and whether interim relief was appropriate. Legal issues framed included: applicability of the Hardial Singh principles to continued detention; whether the detention period had become unreasonable; the adequacy and timeliness of the Secretary of State's efforts to secure section 4 accommodation; equality obligations and duty of enquiry in detention reviews; and the proportionality and practicalities of ordering release during the Covid-19 pandemic.

Key reasoning: the judge granted permission, considering grounds 1–3 arguable and, because of interrelationship between issues, allowed argument on grounds 4–5. On interim relief the court applied the American Cyanamid principles in a public law context. Although there was a conditional grant of bail in principle by the First-tier Tribunal and evidence of the Secretary of State's active searches for suitable accommodation, the judge accepted the Secretary of State's evidence that suitable accommodation had not been identified and that Covid-19 had reduced available accommodation and increased demand. The court weighed the claimant's psychiatric and cognitive disabilities, the Probation Service and expert psychiatric assessments of risk (including risk to children), and the absence of evidence that detention had caused deterioration in his mental health.

Outcome on interim relief: rather than ordering immediate release (which the court concluded would risk placing the claimant in unsuitable accommodation or issuing an impossible mandate), the court ordered the Secretary of State to continue to use best endeavours to find suitable accommodation, to file a statement within two weeks confirming whether suitable accommodation had been identified or, if not, to set out steps taken and explain why, and to provide weekly reports thereafter until suitable accommodation is found. The court made an anonymity order for the claimant, reserved the matter for further hearing if required, and ordered expedition of the claim. The court therefore preserved the claimant's substantive claims for trial while imposing a monitored obligation on the Secretary of State to progress accommodation sourcing.

At first instance the court granted permission to apply for judicial review on all grounds. The court made an anonymity order under CPR r 39.2(4). On interim relief the court found a serious issue to be tried but refused to order immediate release where suitable accommodation could not realistically be sourced; instead the court ordered the Secretary of State to use best endeavours to secure suitable section 4 accommodation, to file a statement within two weeks confirming whether accommodation had been found or detailing steps taken and why unsuccessful, to provide weekly reports until accommodation is found, reserved the matter for further hearing if necessary, and ordered expedition of the claim.