A (R on the application of) v Secretary of State for the Home Department

Interim relief may be granted where there is a real prospect that a public-law challenge will succeed, a claimant may face treatment contrary to Article 3 ECHR, and the balance of convenience favours temporary protection.

The court may grant relief pending determination by a specialist fact-finding tribunal, particularly where that tribunal is addressing the same issue of destitution. Relief may be made conditional on the claimant pursuing those proceedings and may be revisited once the tribunal has made findings.

The claimant, an individual subject to immigration control, sought interim relief requiring the Secretary of State to secure accommodation under Schedule 10 to the Immigration Act 2016. An earlier application had been refused on the papers.

The claim concerned the refusal to provide accommodation, allegedly following an unlawful fettering of the discretion to impose a residence condition on immigration bail. The claimant had previously received substantial damages for unlawful detention and contended that he was nevertheless destitute and living rough.

Separately, his application for support under section 4 of the Immigration and Asylum Act 1999 had been refused and an appeal was pending before the Asylum Support Tribunal. The central issue was whether interim accommodation should be provided pending that specialist tribunal’s determination.

1. The renewed application for interim relief was granted. The defendant was required to use forthwith all reasonable endeavours to secure accommodation for the claimant.

2. There was a real prospect of success on the principal public-law grounds, subject to the effect of section 31(2A) of the Senior Courts Act 1981. If the claimant could not establish destitution, final relief might be refused because the decision would have been inevitable notwithstanding any illegality.

3. The evidence, including recent evidence concerning the disappearance or exhaustion of a substantial damages award and the claimant’s serious mental-health difficulties, provided an arguable basis for finding that he was destitute and unable to support himself.

4. In applying the American Cyanamid approach, there was a sufficient case for an interim injunction and a real risk of treatment contrary to Article 3 ECHR during the short period before the tribunal hearing. The balance of convenience therefore favoured relief.

5. The pending appeal before the Asylum Support Tribunal was a suitable and important alternative fact-finding process. The claimant was required to pursue it. The tribunal’s findings could assist the judicial review court, and the interim order could be discharged or adjusted after those findings.

6. Both parties were granted liberty to apply. If the tribunal found that the claimant was not destitute or had access to funds or accommodation, the defendant could seek discharge of the order. If it found that he was destitute and entitled to support, either party could seek adjustment of the relief.

First-instance renewed application for interim relief. Interim relief had previously been refused on the papers by Wall J on 8 June 2022.