Case No: CO/2262/2022
In the High Court of Justice
Queen’s Bench Division
24 June 2022
The Honourable Mr Justice Fordham
The Queen on the application of
Secretary of State for the Home Department
On an application by Form N463
Following consideration of the documents lodged by the Claimant
ORDER by the Honourable Mr Justice Fordham
1. Until further Order of this Court, and with liberty to any person to apply to set aside this Order, the Claimant’s identity shall be anonymised and not reported.
2. The application for an Order requiring a response from the Defendant is dismissed.
1. This is a paper determination but it constitutes a judicial act and I think it appropriate that it should be released as a short judgment. This is a claim by Form N463 which has come before me today as the Immediates Judge. The papers were filed at 12:14 today, Friday 24 June 2022. They tell the Court that they were served on the Home Secretary this morning.
2. The Court is being asked, within 72 hours (that is by 12:14 on Monday) to make an Order: (1) requiring the Home Secretary to file and serve a written response to the application for interim relief by 4pm on Friday 1 July 2022 “confirming that” (a) the Claimant’s Schedule 10 accommodation request will be determined by Tuesday 5 July 2022 (b) suitable accommodation to be approved by the National Probation Service will be sourced by Wednesday 6 July 2022 and (c) the Claimant has been transferred from the prison estate to an immigration removal centre; and (2) if the Home Secretary “does not confirm” any or all of those matters, the application for interim relief is to be determined on the papers on the first available date after 4pm on 1 July 2022.
3. There is also an application for anonymity. I am going to grant the order for anonymity, on a protective basis. I do so today, purely because this case has come before me today for urgent consideration and I need to make a Court Order. That Order either needs to anonymise the Claimant or name him. The fact that I may consider – as I do – that this Court should not have been being asked to make a Court Order today does not alter the fact that I need now to make one. I make clear that my Order for anonymity is made on the basis that I am satisfied that it is necessary to do so on a precautionary basis and in the short term, to protect the legitimate interests of a claimant said to have serious mental health conditions. I order anonymity until further order, and any person can apply to set it aside or discharge it. Moreover, the question of anonymity can be considered, in light of any observations made by either of the parties or any other person, by a judge who is in a position to deal with this case subsequently.
4. There is an immediate problem, in my judgment, with the nature of the interim order which is sought, with such urgency, today. If the Court were to make an Order in the terms sought, the Court would be telling the Home Secretary, not only that she must file and serve a written response by a particular deadline, but also that the content of that response that she is required to file and serve is required to “confirm that” certain matters are being done or will be done. In other words, it would be a mandatory order requiring action. That is how it is expressed. It is how it reads and would read. On reflection, I think it is likely that that is not what was intended. The Claimant’s representatives must I think have intended to say was that the Secretary of State should file and serve a response “confirming whether” things were being done and to be done; not “confirming that” they were. I will proceed on the basis that this is what was really meant.
5. Any “immediates” judge needs to understand the urgency. And urgency needs to be seen in context. Here, the situation which is relied on as giving rise to the urgency concerns immigration detention and a psychiatric reports and vulnerability, risk to mental health and risks of self-harm and suicide. However, once I look below the surface of this case I can see a timeline which puts into context the extreme urgency which is now sought to be insisted on, from the Court and from the Home Secretary. This is how the sequence appears to be. (1) The Claimant has been in immigration detention since 17 February 2022, after serving the latest in a line of criminal custodial sentences. (2) An application for Schedule 10 accommodation is said to have been made on 8 April 2022. (3) The psychiatric assessment is said to have been undertaken on 18 April 2022. (4) The psychiatrist took until 25 May 2022 (a month and a week) to write the psychiatric report. (5) The letter before claim enclosing that report was sent 4 days later on 29 May 2022. (6) The Home Secretary was given a deadline of 6 June 2022. There was no response. (7) Legal aid was granted two days later on 8 June 2022. (8) Counsel was instructed 6 days later on 14 June 2022. (9) Counsel was unable to draft the urgent grounds for a further 10 days, until today, 24 June 2022. So, it is in that context that this Court is then asked on 24 June 2022 to deal within 72 hours (including over a weekend) with an application to make directions, without any response from the Home Secretary who had been served only this morning, requiring a response by next Friday (assuming that the Claimant’s representatives do not – in fact – intend the Court to mandate what that response should be). I cannot agree, viewed in the context, that this was an appropriate course. I am not prepared to make any Order today, in these circumstances. The Home Secretary and her lawyers should have a fair opportunity to make a response before a Judge considers what is next for this case.
6. As things stand – with no further Order – the Home Secretary would have 21 days (15 July 2022) to provide an informed response by way of an acknowledgement of service with summary grounds, dealing with the application for interim relief and the application for permission for judicial review. This can be put alongside the other stages in the time frame to which I have referred. The Claimant’s representatives have used a fast-track pass (Form N463), seeking to interpose an immediate High Court judge to consider these papers and to make directions, accelerating the timetable for the Home Secretary’s response.
7. Matters relating to immigration detention and mental health concerns are, for plain and obvious reasons, matters of anxious concern to Courts and tribunals. I have nothing but respect for those hard-pressed practitioners who work at the coal face, for whomever, in such anxious cases. I can also see that earlier opportunities to respond are said to have been missed. But, in my judgment, this Court should not have been put in the position on Friday afternoon of having to make an immediate order, without any time at all for the Home Secretary’s lawyers to make her voice heard, even on the question of what would be a sensible and appropriate time frame for a response.
8. If the Claimant’s representatives truly consider that the circumstances are truly so pressing that they cannot await a response on 15 July 2022 and informed consideration promptly thereafter by a High Court judge, in light of the timetable overall to which I have referred, then they will have to now engage with the Home Secretary’s legal representatives as to whether a truncated timetable for a response can be agreed and, having allowed some real opportunity, they will have to then issue a fresh Form N463, identifying what it is in the circumstances that justify the court stepping in, and with clarity as to the response which they are seeking.
9. For these reasons, leaving aside anonymity, the application by Form N463 is refused. I am satisfied that it is not necessary or appropriate that I should take any other step. But it may be that these observations will be of assistance, in the context of future cases.