Mohammad v Secretary of State for the Home Department

A mandatory injunction binds a Minister of the Crown even when made on paper without a penal notice. It must be obeyed by the stipulated time unless set aside beforehand. A pending application to vary or discharge it does not suspend the duty, which continues after the deadline.

Breach may lead to contempt proceedings initiated by the beneficiary or the court. Contempt proceedings need not follow every breach, particularly where compliance has since occurred, an apology has been given and a full explanation is offered. The court may first require evidence addressing the cause, intention and measures against recurrence.

The claimant, an Iranian national who had been granted accommodation and support under section 4 of the Immigration and Asylum Act 1999, became street homeless after accommodation was not provided. In urgent judicial review proceedings, Lang J ordered the Secretary of State to provide suitable accommodation and financial support by 1 pm on 2 February 2021.

The Secretary of State missed the deadline and did not apply beforehand to vary or discharge the order. After further applications and orders, accommodation was eventually arranged and the Secretary of State applied retrospectively to vary Lang J’s order and for relief from sanctions. The court considered the legal effect of the injunction, the possible initiation of contempt proceedings and the directions required for determining the outstanding applications.

1. Directions given. The Secretary of State was required to file evidence explaining the failure to comply, together with submissions supporting her application for retrospective variation and relief from sanctions. The claimant was given time to decide whether to apply for contempt. The papers would then be referred back to the judge for decisions under Part 81 of the Civil Procedure Rules and on the Secretary of State’s application.

2. Lang J’s order was an interim mandatory injunction, rather than a procedural direction. Its paper determination and the absence of a penal notice did not diminish its binding effect. The court could issue a binding mandatory injunction against a Minister of the Crown: R (Humnyntski) v Secretary of State for the Home Department [2020] EWHC 1912 (Admin), R (JM) v Croydon London Borough Council (Practice Note) [2009] EWHC 2474 (Admin) and M v Home Office [1994] 1 AC 377 applied.

3. A mandatory injunction must be complied with by its stipulated deadline unless set aside before then. The obligation continues after the deadline, and a pending application to vary or discharge the injunction does not excuse non-compliance. South Cambridgeshire District Council v Gammell [2006] 1 WLR 658 applied. The Secretary of State had made no timely application and remained in breach until accommodation was provided.

4. On its wording, the order imposed an obligation to achieve the required result, not merely to make reasonable efforts. The court left for later determination whether relief from sanctions applied to a mandatory injunction and whether the injunction could, or should, be varied retrospectively.

5. Breach of an injunction may result in contempt proceedings even when the person bound is a Minister. Rule 81.3(1) permitted the claimant to initiate proceedings, while rule 81.6 required the court to consider proceeding on its own initiative.

6. Contempt proceedings do not necessarily follow every breach. Where compliance has occurred late, an apology has been offered and a full explanation is forthcoming, the appropriate initial course in public law proceedings may be to require a formal explanation supported by witness statements. Further proceedings may be unnecessary if the evidence adequately shows that the breach was unintentional and effective measures have been taken against recurrence. Costs were reserved.

• High Court (Administrative Court): Lang J granted an interim mandatory injunction on 29 January 2021 requiring the Secretary of State to provide accommodation and financial support under section 4 of the Immigration and Asylum Act 1999 by 2 February 2021.

• High Court (Administrative Court): Following non-compliance and a further application by the claimant, Chamberlain J required an explanation, made further interim directions and, in [2021] EWHC 240 (Admin), directed the filing of evidence and submissions before deciding whether contempt proceedings should be initiated and whether retrospective variation or relief from sanctions should be granted.