Hussain -v- Secretary of State for the Home Department (application for judicial review)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity OrderJudgment

Case Number: CO/613/2023

In the High Court of Justice
Kings’s Bench Division
Administrative Court

16 February 2023

Before:
The Honourable Mrs Justice Lang DBE

In the matter of an application for judicial review
THE KING
on the application of

Between:
Sabir Hussain
-v-
Secretary Of State for the Home Department

Order

On the Claimant’s application for urgent consideration, interim relief, directions and anonymity;

Following consideration of the documents lodged by the Claimant and the Defendant;

Order by the Honourable Mrs Justice Lang DBE

  1. Pursuant to CPR r.39.2, in any report of these proceedings, there shall be no publication of the names of the Claimant’s children. In the proceedings, the Claimant’s children shall be anonymised and referred to as “1” (the oldest child), “2” (the middle child) and “3” (the youngest child). Liberty to renew the application for anonymity at the interim relief hearing, if so advised.
  2. A hearing is to be listed on 22 February 2023, to commence at 2.00 pm, with a time estimate of 2½ hours.
  3. The Defendant shall file and serve an Acknowledgment of Service and Summary Grounds of Resistance, together with any evidence upon which she wishes to rely, by 4.00 pm on 20 February 2023.
  4. When judgment is handed down in the conjoined claims of HZ & Ors v Secretary of State for the Home Department CO/3495/2022, CO/3481/2022, CO/3493/2022, both parties have permission to file and serve submissions on the effect of the judgment on this claim, if so advised.
  5. Liberty to apply to vary or discharge this order on 2 days notice to the other party.
  6. Costs reserved.

Reasons

The Claimant and his family (his wife and three children) were evacuated from Afghanistan in 2021 and resettled in the UK. The Claimant is a British citizen.

The Claimant challenges the Defendant’s decision to relocate him and his family from a hotel in London to a hotel in Leeds, because of the disruption and harm that will be caused to the educational needs of the children and the health needs of the parents.

The two older children are settled in their London school. Child 1 is due to sit his GCSE exams in June/July 2023. Child 2 is in the first year of his GCSE syllabus.

The Claimant’s wife is being treated for severe depression and chronic pain at Chelsea and Westminster Hospital. The Claimant is scheduled to have surgery at the same hospital to treat severe haemorrhoids on 24 February 2023. He has waited 10 months for the operation, and if he has to cancel it, there will be another long wait in Leeds.

The Defendant has longstanding plans to cease use of the London hotel in which the Claimant is currently living, at the end of February 2023. The Defendant has decided to move occupants out of London to reduce costs and ease pressure on accommodation in London. The Claimant has not been able to meet the conditions for securing alternative accommodation.

The Claimant applies for interim relief requiring the Defendant to continue to accommodate the Claimant and his family within reasonable travelling distance of the children’s school, until further order.

In the light of the Claimant’s application for interim relief, the Defendant has agreed to defer the move to Leeds from 17 February 2023 to 24 February 2023. The parties have agreed to a hearing of the application for interim relief on 22 February 2023. I have increased the time estimate to 2½ hours.

I note that the Defendant anticipates similar claims from other hotel occupants. The current time estimate for 22 February 2023 will have to be extended to a full day’s hearing if the Court has to consider multiple claims, because each claim is likely to be highly fact-sensitive.

The principles governing the grant of interim relief in judicial review proceedings are those contained in American Cyanamid Company v Ethicon Ltd [1975] AC 396, modified as appropriate to public law cases.

First, the Claimant must demonstrate that there is a serious question to be tried. In judicial review claims, this involves considering whether there is a real prospect of the claim succeeding at the substantive hearing: see R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin), per Cranston J. at [6], and The Administrative Court Judicial Review Guide 2022, paragraph 16.6.1.

Secondly, the Court should consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. This involves balancing the harm to the claimant that would be caused if interim relief is not granted, and the claim later succeeds, against the harm that would be caused to the defendant, any third party and the public interest if interim relief is granted, and the claim subsequently fails.

In order for the Court to determine whether or not these two criteria are met, it is essential for the Defendant to file and serve an Acknowledgment of Service and Summary Grounds of Resistance, addressing the merits of the claim as well as a response to the application for interim relief, prior to the inter partes hearing. This is standard practice and in my view, counsel for the Defendant is mistaken in submitting that there is no need to file the Acknowledgment of Service prior to the inter partes hearing.

Anonymity

Any departure from the principle of open justice has to be justified, and on the information provided to me, an anonymity order is only justified to protect the privacy of the Claimant’s children. The children are not parties but will be referred to in evidence, so I have anonymised their names. I do not consider that the disclosure of the Claimant’s name is likely to lead to the children’s privacy being invaded. If the Claimant considers that this order is insufficient, he has liberty to renew the application for anonymity at the hearing.

Mrs Justice Lang
Dated: 16 February 2023