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

On an application for mandatory interim relief in a public law claim, the American Cyanamid principles apply with appropriate modification. The claimant must show a real prospect of success. Where continued detention may have become unlawful because accommodation required for release has not been provided, damages may be inadequate as an interim remedy. The balance of convenience must then be assessed, including the public interest. General concerns about the effect of an order on a limited accommodation pool will not outweigh the claimant’s position where the claimant has been found entitled to accommodation and the defendant provides no specific evidence explaining the delay or the practical obstacles to compliance.

The claimant, a Ugandan national detained under immigration powers following a deportation order, sought an interim mandatory injunction requiring the Secretary of State to release him to accommodation under section 95 of the Immigration Act 1999. His application for such accommodation had initially been refused, but the Asylum Support Tribunal allowed his appeal on 7 September 2020. Accommodation had not been provided by the hearing of the interim application.

The claimant sought to challenge the lawfulness of his continuing detention and alleged unlawful delay in securing suitable accommodation. The central issue was whether he had a real prospect of establishing at trial that the delay made continued detention unlawful and, if so, whether interim release was justified.

1. Interim relief. The principles in American Cyanamid v Ethicon [1975] AC 396 applied, subject to appropriate modification for the public law context.
2. Prospect of success. The claimant had a real prospect of establishing that the delay in providing section 95 accommodation made continued detention unlawful. The Secretary of State had not filed evidence explaining specific problems arising from the claimant’s Sexual Harm Prevention Order or otherwise showing why accommodation could not be provided. The Secretary of State might nevertheless establish at trial that the delay was lawful, depending on fact-sensitive information.
3. Adequacy of damages. Although a successful claim for unlawful detention might result in damages, damages could not sensibly be treated as an adequate remedy on an interim basis.
4. Balance of convenience. The public interest did not, on the material before the court, outweigh the claimant’s case. The claimant had been found by a tribunal to be entitled to section 95 accommodation. General concerns about the effect of mandatory relief on access to, or administration of, the available accommodation pool did not militate against relief without evidence of specific practical problems.
5. Order. The Secretary of State was required to release the claimant to accommodation provided under section 95 within seven days of the handing down of the order. The Secretary of State was given permission, on 48 hours’ notice, to apply to vary or discharge the order if circumstances prevented compliance.