Q & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

J U D G M E N T

1. MR JUSTICE MAURICE KAY: Last week, on 15th October, a number of cases were listed before me for oral hearing of applications for permission and further interim relief. All related to applications made in respect of section 55 of the Nationality Immigration and Asylum Act 2002.

2. I indicated to counsel that I and the other nominated judges were concerned about the extent to which cases concerning section 55 were taking up the time of the Administrative Court. I was minded to give some general guidance. I read out a draft statement which represented not only my views but those of the other nominated judges currently in London. It was in these terms:

"Before the coming into force of section 55 of the 2002 Act, asylum support cases accounted for a minute proportion of the work of the Administrative Court. That has now changed. About a quarter of all cases lodged in the Court this year have been asylum support cases. They account for approximately 800 cases in our current workload. Clearly they are having a significant impact on the ability of the Court to process cases in this and other areas. Since the decision of the Court of Appeal in Q in March, there has been some reduction in the number of arguable applications in relation to the "as soon as reasonably practicable" test, but neither Q nor the recent decision in T has reduced the number of arguable applications relying on Article 3. In T the Court of Appeal held that the threshold or boundary, "which is not a fixed or a bright line, lies somewhere between S and T ". It is the experience of the judges of the Administrative Court that, factually, the great majority of cases fall somewhere between S and T . S was a strong case described by the Court of Appeal as "inexorable". The facts of T were not typical of most applications.

"In a typical current case the claimant has been supported for a short period pending the determination of his application for support but, following an adverse decision under section 55(1), the support has been withdrawn. Within a very short time he is sleeping rough with no money except for the proceeds of begging and in many cases there are health complications of various degrees of seriousness. He has no realistic recourse to charity. In such circumstances the judges usually grant interim relief on the papers. If, instead, they adjourn the application into court, the Secretary of State is usually not represented. We are told that if we abridge time for the Acknowledgment of Service, this imposes intolerable burdens on the Treasury Solicitor. In any event, when Acknowledgments of Service are filed they often amount to little more than an assertion that the Article 3 threshold has not been crossed. Rarely are the claimant's factual assertions about his circumstances contradicted. In some cases a judge refuses to grant the application for interim relief or for permission because he considers it to be premature. In many such circumstances he suspects that a further application before very long would succeed.

"Where interim relief is granted, the Secretary of State never avails himself of the liberty to apply for variation or discharge. We suspect that very few of the cases in which permission is granted will ever result in substantive hearings. Often the asylum application will have been decided before they could take place.

"Against this background it seems to my colleagues and me that a vast amount of public money is being expended on litigation, much of which ought to be avoidable and which is clogging up the processes of the Administrative Court. Accordingly, we express the hope that legal advisers on both sides will do all that they can to resolve these disputes without resort to the Court. Those representing claimants should ensure that they do not set unrealistic deadlines when writing to the Secretary of State or the Treasury Solicitor and that their applications to the Court are not made prematurely. They should not be made out-of-hours save in cases of extreme emergency. When in receipt of an application or an intimation of one, the Secretary of State should consider it expeditiously and objectively, in accordance with the decisions of the Court of Appeal. These may seem statements of the obvious but they do not seem to be routinely observed at the moment. It may assist practitioners to know that at present (ie since T ) new applications are continuing to come in at about 60 per week, which is almost exactly the same as in the 7 weeks before T , and that the percentage which fail to attract interim relief is currently less than 10 per cent.

"It is the intention of the judges to try to avoid adjourning applications for interim relief and permission into open court. They will endeavour to deal with them on paper wherever possible. If the claimant is refused relief or permission on paper, it will be open to the Secretary of State to renew in open court. If interim relief is granted on paper, it will be open for the Secretary of State to apply for variation or discharge pursuant to the liberty to apply.

"When granting interim relief, judges will not now abridge time for the Acknowledgment of Service or otherwise order expedition unless persuaded to do so in a particular case. Whether or not an Acknowledgment of Service is filed, if permission is granted, the Treasury Solicitor should inform the Administrative Court Office within 14 days whether it is expected that a substantive hearing will be required. If it will not, the parties will be expected to submit a form of consent as soon as practicable. All this will apply whether the case is put under section 55(1) or by reference to section 55(5) and Article 3, or a combination of both."

3. That was the statement I made last week in draft form. I indicated that I would be more than happy to hear submissions in relation to it before putting it in a final form.

4. Counsel on both sides asked for time to consider the draft and to take instructions. Accordingly I adjourned the case until yesterday. In the meantime, four further cases were added to the list and I agreed to receive representations from Shelter as an interested party. One of last week's cases is no longer before me.

5. I have now received helpful written submissions and evidence from all counsel or those instructing them, and I have heard oral submissions. Everything that I have heard disposes me to the view that the draft statement was along the right lines, but I am now able to go further.

6. When the cases were called on yesterday, I sought to establish whether permission or interim relief was opposed in any of them. Counsel, instructed on behalf of the Secretary of State, made it clear that neither permission nor interim relief is opposed in any of the seven remaining cases. That seems to me to be realistic, and accordingly I grant permission and continue interim relief in each case. In those cases where there has not yet been an order for anonymity, I make such an order.

7. I can now turn to the question of general guidance. The evidence and submissions I have received have enabled me to form a clearer picture of the causes of the problem and the ways in which it may be resolved. The material supplied by the claimants' representatives is detailed and quantitative. It is factual, to a large extent incontrovertible and not at all strident.

8. Dealing first with section 55(1), I remain of the view that there has been some improvement in the Secretary of State's procedures and decision making since Q , but there are still a significant number of cases in which the claimant has at least an arguable case to the effect that the guidance in Q has not been followed. The unappealed part of my decision in S , D and T , specifically the case of D , is an illustration. In that case, there was a voluminous amount of evidence produced by the claimants which addressed and answered some of the generic propositions often advanced before and since I handed down my judgment on 31st July. The Secretary of State did not provide contradictory evidence. It would be enormously wasteful if applicants for asylum support had to produce that sort of evidence in every case, or in relation to every application. Unfortunately the Secretary of State's officials do not always seem to be having regard to it when processing subsequent applications.

9. The answer is simple. It resides in the proper instruction of officials so that they do not resort to generic stereotyping regardless of the accepted evidence to the contrary. The point of test cases is to provide clarification and guidance for those who operate the system at the grass roots. It is a waste of time and ultimately very expensive if the clarification and guidance are ignored. It is the responsibility of the Secretary of State to ensure that it is not. In this context, I welcome the development which is now resulting in the automatic provision of copies of interview records at the conclusion of interviews.

10. I now turn to section 55(5) and Article 3. The most recent and authoritative guidance is that of the Court of Appeal in T . I explained in the draft statement that when called upon to apply Q and T on applications for interim relief, the nominated judges are granting it in over 90 per cent of cases. In those cases of initial refusal, there is sometimes a grant on oral renewal, sometimes supported by further evidence. Where interim relief is granted, permission will usually follow. Today's cases are a good example.

11. Now that I have read the material submitted for yesterday's hearing, I am satisfied that the main reason why the vast majority of applications are being made and are succeeding is that quite simply there is not in place an adequate and efficient decision making procedure for the processing of representations and particularly further representations which are made by reference to Article 3. I do not doubt that the Secretary of State wants there to be such a procedure. However, what is in place falls miles short of achieving the targets that were set by the Secretary of State himself. Although the stated intention was to make a decision on the same or following day after receipt of further representations, the reality is that a claimant's solicitors often find it difficult to get any meaningful response from the Home Office unless and until they obtain an order for interim relief, after which they rarely meet significant resistance from the Secretary of State as to the future of their claims. This is what is so wasteful in terms of litigation costs and court time.

12. I remain of the view that, on a conventional basis, some of the applications are made following the imposition of what are, on the face of it, unreasonably short time limits. However, the empirical evidence now establishes that longer time limits would not have attracted a timeous response. I now accept that the time limits, particularly those referring to the same day and the following day, in fact emanated from the Home Office in June rather than originating from the claimants' solicitors themselves.

13. It is axiomatic that anyone who is deserving of interim relief is suffering or is about to suffer real hardship. If they are so deserving, they are entitled to expect that the Court will act quickly. However, in most cases, the circumstances do not justify an application to the out-of-hours judge. In most cases, the hardship which has been endured for days or hours can be endured until the following day without serious further risk. No doubt there are some truly exceptional cases which merit the most urgent and immediate attention. However, I repeat, out-of-hours applications should only be made in such truly exceptional cases. I well understand that committed legal advisers are anxious to get a result for their clients at the earliest opportunity, but I remain of the view that, notwithstanding the impassioned submissions, there are many cases presented late in the day which could reasonably wait until the next morning.

14. In view of the very high success rate of obtaining interim relief, it is reasonable to expect the Secretary of State in many cases (1) to be less precipitous in procuring the eviction of applicants from emergency accommodation, and (2) to provide emergency accommodation without the need for an injunction when he receives further representations and/or an indication of an application for judicial review. It is said on his behalf that he has no power to provide emergency accommodation without an order of the Court in those circumstances. I do not accept that. Indeed, he is already doing so pending determination of the initial application in many cases, and his published policy refers to provision, albeit normally only for one day, where there is a clear indication that a breach of Convention rights would be likely if emergency accommodation were to be denied. In addition, I am told that in many cases he continues to provide emergency accommodation for seven days or more after the communication of an adverse decision. I have no doubt that he has the power to do so.

15. I say nothing today about an argument that he also has a legal duty to do so in some circumstances. The power, it seems to me, derives from section 55(5) (a) itself, which does not presuppose a proven breach of the Convention right but the taking of the steps to the extent necessary to avoid one.

16. With all this in mind, I therefore give the following guidance:

17. (1) In an area in which such a large number of claimants are being granted interim relief because they have at least an arguable case, it is incumbent on the Secretary of State to establish an adequate and efficient decision making procedure which applies the law as set out by the Court of Appeal, which does so within a timescale appropriate to self-evidently urgent issues and which does not give rise to the need for so many applications to this Court.

18. (2) The aim should be to produce decisions on further representations within the sort of timescale suggested by the Secretary of State's own policy promulgated in June, which on the evidence is simply not working at the moment. It is said that the number of cases was underestimated, and that resources were provided on the basis of that underestimate. If that is so, it can be corrected.

19. (3) Upon receipt of an indication of an immediate application for judicial review, the Secretary of State should consider and normally agree to grant or continue interim support without the need for a court order, pending consideration of permission or further order. If upon consideration he takes the view that the claimants' case is unarguable, he should say so within 24 hours, in which case it will be necessary for the claimant to apply to the Court for interim relief and for the matter to be determined.

20. (4) For their part, claimants' legal advisers should make their representations to the Secretary of State and to this Court in as detailed a manner as possible. To this end, the Court will soon approve and require the use of a pro forma modelled on the one helpfully drafted by counsel and produced in the course of this hearing.

21. (5) Claimants' legal advisers should not make applications to the out-of-hours judge save in the most exceptional circumstances, having regard to the observations made earlier in this judgment.

22. (6) The Court will not normally abridge time for an Acknowledgment of Service in this field.

23. (7) Within 14 days after a grant of permission, the Secretary of State should inform the claimant's solicitors and the Administrative Court Office if it is anticipated that there will be a substantive hearing. If it is not, the Court will normally expect a draft consent order to be lodged. If a substantive hearing is anticipated, the Court will do its best to accommodate reasonable requests for expedition.

24. Finally, I should say some things to put all this into context. First, the underlying problem is related to the length of time that it takes to determine the asylum application itself. Obviously, the longer it takes to reach a decision initially or on an appeal to the adjudicator, the more likely it will become that destitution will arise and intensify.

25. Secondly, all this litigation could have been avoided if the legislation had not restricted applicants for asylum support from access to asylum support adjudicators, who are far better equipped to produce fast and inexpensive decisions in this area than is the Administrative Court. I agree with the point made by claimants' counsel to the effect that because of the deficiencies in the Secretary of State's decision making procedure and the exclusion of these cases from the asylum support adjudicators, the Administrative Court is being put in the position of having to act as a first-call dispute resolution forum in an area where there are established alternatives which are better equipped for the task.

26. Thirdly, some of the media reports of last week's hearing suggested or implied that I was being critical of claimants' legal advisers' use of public funding. I was not. Although there have been occasions when I have been so critical in the past, in a different context and in relation to other legal advisers, that criticism would be wholly unjustified in this case. I do think that any cost benefit analysis of the section 55 litigation would produce the conclusion that it was largely avoidable and therefore a regrettable use of scarce resources. I do not consider that the blame for that lies with the claimants' legal advisers. They have acted with dedication and compassion for clients who present in dire circumstances. Throughout, since Q , they have made it clear that they regret that there has not been a different and better way of dealing with an acute problem. I am also satisfied that the Treasury Solicitors are doing all they reasonably can in difficult circumstances. This is not a problem created by lawyers on either side.

27. Fourthly, it is apparent from the material before me that so stretched are the resources of the relatively small number of lawyers who are willing and able to provide expert advice in this field that many potential claimants are unable to pursue applications. There is nothing I can do about that, but it is appropriate to observe that the cases which are coming into court in almost unmanageable numbers are the tip of an iceberg. The solicitors acting in this case are having to turn away far more clients than they are able to take on.

28. I shall order that the transcript of what I have said be expedited, copies will be sent to all solicitors and chambers known to be active in this field, it will be posted on the website. Let us all hope that the problems can be greatly reduced.

29. So far as the underlying applications are concerned in which permission and interim relief have been granted, costs will be reserved in each and every one of those, and I hope and expect that if and when a costs judge has to assess claimants' costs, they will reflect the fact that counsel who attended on behalf of the claimants last week, yesterday and today did so at the court's request, they were very helpful, and although not everything that was said was directly related to the case of the particular client whose interests they were instructed to pursue, their contribution to these hearings has been extremely helpful on a point of public concern and I hope will have had the result of saving public funds in the long run rather than adding to them.

30. Thank you all very much.