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

Interim relief in judicial review requires a real issue to be tried and a balance of convenience favouring relief, including relevant public interests. Mandatory relief against a public authority ordinarily requires a strong case of unlawfulness. Generic or “class” relief for persons who are not parties requires particular clarity and must respect the distinction between judicial review and policy-making. Where individual appeals against refusal of asylum support are likely to succeed but take several weeks, urgent pre-claim applications for individual interim relief may be appropriate. That does not justify a blanket order requiring accommodation for all persons within an abstract class.

The claimant, a destitute failed asylum seeker, challenged refusal of accommodation and support under section 4 of the Immigration and Asylum Act 1999, and the policy governing refusals during the Covid-19 emergency. He had already obtained individual interim relief and later succeeded in his appeal to the First-tier Tribunal. He nevertheless sought “class interim relief” requiring accommodation for wider categories of failed asylum seekers. The central issues were whether there was a real issue to be tried and whether the balance of convenience justified mandatory relief for persons who were not parties.

1. Outcome. The application for class interim relief was refused. The court instead directed an urgent, streamlined process for individual pre-claim applications by failed asylum seekers who had appealed refusal of section 4 support and whom the Secretary of State accepted were destitute.
2. The applicable test was whether there was a real issue to be tried and, if so, whether the balance of convenience, including the public interest, favoured interim relief. The claimant established a real issue under his challenge to the distinction between continuing accommodation for persons already supported and refusing fresh applications. The court expressed no concluded view on the merits of the judicial review grounds.
3. The wide form of relief was refused. The evidence did not establish the number of potential beneficiaries, their circumstances, available accommodation, practical impact, duration, or cost. The proposed order was also insufficiently clear as to beneficiaries, timing and location. A blanket obligation appeared potentially inconsistent with the statutory scheme and risked drawing the court into policy formulation.
4. Mandatory interim relief against a public body requires a strong case of unlawfulness. The claim was a serious issue, but it was not overwhelming. The court also stressed that class relief must respect the different roles of the court and the decision-maker and must not determine how public powers should be exercised.
5. Individual judicial review with interim relief could be appropriate because appeals to the First-tier Tribunal were taking several weeks and were likely, in the existing circumstances, to succeed. Applications could be made without issuing a claim form, limited to two pages, supported by the refusal decision and appeal where possible, with 24 hours for the Secretary of State to respond. The court retained control over each application and could consider expedition if permission for judicial review were granted.