Public Law Solicitors

by Nicola Burgess

Interim relief allows an applicant to seek a preliminary order in ongoing litigation. It is very often used to preserve the status quo. In an application for Judicial Review challenging unlawful detention of an immigration detainee it would be used to seek the Claimant’s release. It will be granted where it can be shown that the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought, see the House of Lords decision in the case of American Cyanamid v Ethicon Limited [1975] AC 396. This question arises where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both. Where the matter concerns the deprivation of liberty, damages alone will never be an adequate remedy. The case of R (ex p Mosanto) v MAFF [1999] 2 WLR 599 established that the test must be applied within the context of public law questions to which the Judicial Review proceedings gave rise; which is to bring swift release against the abuse of executive power. Where a person’s liberty is at stake and the prospect of removal is not likely within a reasonable period swift release from detention is required, only such an order for release and not a payment of damages will provide an adequate remedy. It is therefore not rare for the Court to grant interim relief in such cases, see AM v SSHD [2007] EWHC 867 and H v SSHD [2010] EWHC 2414 (Admin). Indeed Article 5 (4) ECHR requires a speedy challenge to the lawfulness of detention and so in such cases where interim relief is denied the court very well may find itself in breach.

The High Court also has inherent jurisdiction to grant bail. Very often the court and indeed the Secretary of State conflates the issue of interim relief and bail. There is an important distinction between bail and interim relief, in that an application for bail proceeds on the assumption that detention is lawful (see e.g. R (Konan) v SSHD [2004] EWHC 22 Admin), whereas an application for interim relief can have regard to the lawfulness or otherwise of detention. Whether the Claimant is ultimately granted release by way of an order for interim relief or granted bail then the outcome will be the same yet there remains an important legal distinction. Best practice therefore seems to suggest that even where interim relief is refused bail should still be pursued. This gives the client the benefit of a High Court Judge’s view on detention as opposed to an Immigration Judge and effectively utilizes often hard fought for court time.