Public and Commercial Services Union (R on the application of) & Ors. v Secretary of State for the Home Department

On an appeal against the discretionary refusal of interim public law relief, the appellate court reviews the decision rather than exercising the discretion afresh. It may intervene where the judge erred in principle or reached a conclusion that was irrational or plainly wrong.

The court should grant or withhold interim relief according to the course likely to cause the least irremediable prejudice. It may consider the likely duration of the interim period, the public interest, formal arrangements between states and the views of an expert international body. Such expert views deserve respect but do not bind the court. Where removal depends upon lawful individual decisions, interim relief should ordinarily be assessed individually rather than imposed generically.

The appellants sought interim relief preventing the removal of asylum claimants to Rwanda pending a rolled-up judicial review hearing. Swift J found serious issues concerning aspects of the challenge but held that the balance of convenience favoured neither generic relief nor relief for the individual claimants. He considered the expected interim period, the prejudice caused by removal, the risk of refoulement, the arrangements recorded in the intergovernmental memorandum and Notes Verbales, and the public interest in implementing immigration decisions.

The appellants contended that the judge underestimated the strength of their claim, made errors in balancing prejudice and wrongly required applications to be considered individually. The United Nations High Commissioner for Refugees intervened to emphasise deficiencies said to affect refugee status determination in Rwanda. The central issue was whether the judge had made an error permitting appellate interference with his discretionary refusal of interim relief.

1. Appeal dismissed. The judge had correctly directed himself on the principles governing interim relief in public law. He identified serious issues to be tried and properly treated the balance of justice as the critical question. His conclusions were reasonably open on the evidence and were neither irrational nor plainly wrong.

2. An appeal against a discretionary decision on interim relief is a review, not a rehearing. The appellate court does not decide whether it would have made the same order. It asks whether the judge erred in principle or reached a conclusion outside the range reasonably open to him. The appellate court should respect the judge's evaluation of written evidence and cannot substitute its own assessment of factual weight: [2020] EWCA Civ 594; [2018] EWCA Civ 497.

3. The judge was entitled to assess prejudice over the six or seven weeks preceding the substantive High Court hearing. He did not have to include possible later appeals in that period. The claimants' case assumed success at the substantive hearing, following which an individual claimant could seek return to the United Kingdom. Any further interim arrangements would then be for the appellate court.

4. The judge could conclude that onward removal by Rwanda during that short period was speculative. He could give weight to the memorandum and Notes Verbales. Although those arrangements might not be legally enforceable, they were formal agreements between sovereign states and compliance would be subject to scrutiny. The judge did not have to be certain that they would be implemented.

5. The judge respected the UNHCR's unique position and institutional expertise and considered its evidence. He was not bound to follow its assessment. In the circumstances of the short interim period and the formal arrangements in place, that evidence did not compel the conclusion that an individual would be improperly removed from Rwanda before proper consideration of an asylum claim.

6. Applications for interim relief had to be considered individually. Removal depended upon case-specific decisions under the statutory and Immigration Rules framework. Generic relief could prevent implementation of the policy even where an individual decision contained no legal defect.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the discretionary refusal of interim relief.
2. High Court, Administrative Court: On 10 June 2022 Swift J refused generic and individual interim relief. He ordered a rolled-up hearing of the judicial review claim before the end of July 2022.