SK -v- Secretary of State for the Home Department (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: CO/2539/2023

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

10 July 2023

Before:

The Honourable Mrs Justice Hill DBE

Between:

The King on the application of
SK

-v-

Secretary of State for the Home Department

Order

On consideration of the documents lodged by the Claimant including an application for anonymity
ORDER by the Honourable Mrs Justice Hill DBE

  1. Until further order and with liberty to any person to apply in writing on notice to the parties to vary or discharge this paragraph of this order: (a) pursuant to CPR 39.2(4), the anonymity of the Claimant and his children is protected and the Claimant shall be referred to as “SK”; (b) pursuant to CPR5.4C, no person may obtain a copy of any document from the Court records without permission of the Court unless the Claimant’s solicitors have first had the opportunity to remove details which could lead to his identification.
  2. Any person has liberty on 3 days’ written notice to the parties to apply to vary or discharge the anonymity order set out above.

Reasons

  1. The Claimant has sought anonymity for himself and for his children. He has (or arguably has) a pending undetermined claim under Article 3 ECHR and has previously been granted leave to remain in light of Article 3 ECHR. His children have (or arguably have) pending undetermined claims for asylum. They warrant the protection of the presumption of anonymity in cases involving asylum seekers, see, by analogy: Practice Note (Court of Appeal: Asylum and Immigration Cases) [2006] 1 WLR 2461) and paragraph 339I of the Immigration Rules, which transposes the requirements of Article 22 of Asylum Procedures Directive 2005/85.
  2. Having considered the Article 8 rights of the Claimant and his children and the Article 10 right to freedom of expression, as well as the open justice principle, I am satisfied that (i) non-disclosure of the identity of the Claimant and his children is strictly necessary in order to secure the proper administration of justice and protect the interests of the Claimant and his children; and (ii) there is insufficient countervailing public interest in disclosure of their identities to justify interfering with their Article 8 rights.

On consideration of the documents lodged by the Claimant including applications for urgent consideration and interim relief
ORDER by the Honourable Mrs Justice Hill DBE
This is a mandatory injunction. Breach of paragraph 1 this order may give rise to contempt proceedings. Even if an application has been made under paragraph 2 to vary or discharge, the order at paragraph 1 must be complied with unless or until such an order is made.

  1. Pending consideration of permission to claim judicial review or further order the Defendant is directed to provide support to the Claimant and his dependants under section 95 of the Immigration and Asylum Act 1999 within 7 days of the date of this order.
  2. The Defendant may apply to set aside paragraph 1 of this order on 2 days’ notice to the Claimant’s solicitors.
  3. Any application made under paragraph 2 is to be referred to a judge for consideration immediately after issue.
  4. Anonymity has been provided for by way of separate order of the same date which will be published in the usual way.
  5. No decision has been made as to whether the claim has been filed out of time and if so whether time should be extended.
  6. Costs reserved.

Reasons

  1. Urgent interim relief is considered appropriate for the following reasons:
    (i) On 17 May 2023 the Asylum Support Tribunal (“AST”) determined that the Claimant is entitled to Asylum Support under section 95 of the Immigration and Asylum Act 1999. The Defendant has accepted this decision but asserted on 23 June 2023 in response to the pre-action protocol letter that the reason for not yet providing such support was that “a Section 95 application has [not yet] been raised”. This is, on the basis of the material provided to the court, manifestly wrong on the facts: the Claimant applied for section 95 support on 5 May and 7
    November 2022, and the AST found as such at [7] of its decision. In any event this does not provide a justification for refusing to comply with the AST’s decision. On that basis the Claimant has strong prospects of success.
    (ii) The Claimant currently receives no cash support from the Defendant, only provision in kind. The provision of Asylum Support includes the provision of £9.10 cash per person per week, which in the Claimant’s case would be £45.50 per week. While the Claimant receives occasional cash as charity, the lack of the weekly cash payments to which he is entitled means that he has been unable to buy school uniforms or give his children any pocket money when attending school. The sums at stake are very small for the Respondent but large for the Claimant and his children.
    (iii) The Defendant has been on notice of the need to provide section 95 support to the Claimant since the decision of the AST on 17 May 2023. A pre-action protocol letter was sent by the Claimant’s solicitor on 26 May 2023, highlighting the failure to provide the support, and seeking a response by 9 June 2023. The Defendant did not reply until 23 June 2023 and the reasons provided therein for failing to provide the support are not, on the face of it, persuasive: see sub-paragraph (i) above. It is therefore considered that the Defendant has had an adequate opportunity to respond to the issue. In any event the Defendant has liberty to apply to vary or set aside this order on 2 days’ notice.
  2. The issue of whether the claim has been filed out of time and if so, whether time should be extended, should be considered by the judge considering permission, once the Defendant’s views on this issue are known. The timing issue is not considered so problematic for the Claimant that interim relief should be refused.