DA & Ors v The Secretary of State for the Home Department

At an interim stage, the court may require a public authority to observe safeguards in published policy where there is a strong arguable case that a departure is unlawful and a serious risk of irreparable harm before the substantive hearing. Relief must be tailored by balancing the strength of the challenge, the practical burden on the authority and the consequences of granting or withholding relief. Interim relief should not determine contentious substantive issues or confer protection beyond the applicable legal criteria.

Three anonymised asylum seekers challenged an abridged asylum screening process introduced during the Covid-19 pandemic. Questions identified in published Asylum Screening and Routing guidance as relevant to identifying potential victims of trafficking, including questions about the applicants’ reasons for coming to the United Kingdom and their journeys, were not routinely asked.

The claimants argued that the practice unlawfully departed from published policy and risked failures in trafficking identification, detention and removal decisions. The court considered interim relief, arguability, and the balance of convenience and justice. The substantive permission and judicial review hearing was listed for a later rolled-up hearing.

1. Interim relief granted. The court ordered the Secretary of State to ensure that questions 3.1 and 3.3 in the published Asylum Screening and Routing guidance were asked in all asylum screening interviews pending the substantive hearing.
2. There was a strong arguable case that the abridged practice was unlawful because it appeared to depart without good reason from published policy. There was also a strong arguable case that the practice lacked sufficient justification on ordinary reasonableness or rationality review. The substantive grounds were not finally determined.
3. The omitted questions were expressly connected with early identification of potential trafficking victims. Their omission created a serious risk of irreversible harm, including failure to identify vulnerable individuals, detention, certification of protection claims and removal before the substantive challenge could be resolved.
4. The narrower order was justified because it addressed the immediate protective deficiency without imposing the full published interview process or determining contentious issues. The ultimate application of the relevant legal criteria remained with the Secretary of State’s decision-makers.
5. The court applied the NRM-referral test articulated in R (TDT (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 1395, and required confirmation that interviewers were aware of that test and of evidence of a particular risk of forced modern slavery in Libya.
6. The court also required a list of persons interviewed without the questions after the order, directed procedural steps for the rolled-up hearing, and reserved costs.

This was a first-instance Administrative Court decision on interim relief. The judgment states that Swift J had directed the interim-relief hearing on 4 November 2020. Permission and, if granted, the substantive judicial review were listed for a rolled-up hearing on 16–17 December 2020.