Medical Justice, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

The applications arise from a judicial review claim brought by the Plaintiff challenging part of the Secretary of State's policy on the removal of persons from the United Kingdom. The policy in question is Section 3 of the document titled "Judicial Review and Injunctions," part of the UK Border Agency's Enforcement Instructions, referred to as the Section 3 policy. This policy identifies circumstances allowing removal with less than the usual 72 hours' notice, including medically documented risks of suicide or self-harm, best interests of unaccompanied children, protection of other persons, avoidance of disruptive behaviour, and cases with the consent of the person to be removed. The policy includes safeguards such as notifying legal representatives promptly and scheduling removals during working hours where possible.

The Plaintiff contends that the Section 3 policy is unlawful and that no removal should occur with less than 72 hours' notice. The claim was filed on 6 April 2010 and permission for judicial review was granted by a Deputy High Court Judge on 13 April 2010, who also refused interim relief but imposed a protective costs order limiting the Plaintiff's liability to £5,000. The Secretary of State was ordered to serve detailed grounds and evidence by 6 May, later extended to 14 May. Interim relief was renewed and refused on paper, with a direction for an oral hearing. The Secretary of State lodged detailed grounds and witness evidence from a senior official of the UK Border Agency.

Legal Issues Presented

1. Whether the Section 3 policy permitting removal with less than 72 hours' notice is lawful.
2. Whether interim relief should be granted to restrain the Secretary of State from implementing the Section 3 policy during the judicial review proceedings.
3. Whether and on what terms the protective costs order should be varied to impose reciprocal cost limits on the Secretary of State.

Arguments of the Parties

Appellant's Arguments

• The Section 3 policy is unlawful because it permits removal with less than the statutory 72 hours' notice.
• There is a real prospect of success at trial due to the policy's impact on access to justice, as some individuals are removed before judicial review applications can be lodged.
• Evidence from legal practitioners shows cases where early removal prevented adequate preparation or consideration of new evidence.
• The policy's impact assessment acknowledges that timely judicial review applications may be impossible under the policy.
• The protective costs order is necessary to enable access to justice, and imposing a reciprocal cap on the Secretary of State's costs would impede this access.
• The Secretary of State has resisted suspending the policy despite repeated requests, making the interim hearing and costs incurred unnecessary.

Respondent's Arguments

• The Section 3 policy does not deny access to courts and applies only in limited, exceptional circumstances justified by policy reasons.
• The safeguards in the policy ensure compatibility with the right of access to justice.
• Cases such as one where a judge granted interim relief after a late-night arrest demonstrate that access to justice remains available.
• The balance of convenience favors dismissal of interim relief because the policy is an option of last resort and the individuals affected have already had their substantive claims considered.
• Granting interim relief would prevent the Secretary of State from exercising statutory powers to maintain immigration control, contrary to the public interest.
• The Secretary of State seeks a reciprocal protective costs order, limiting its liability for the Plaintiff's costs to a modest amount, consistent with established legal principles.
• The Secretary of State contends that the Plaintiff's solicitors are experienced public interest practitioners aware of protective costs order parameters.
• The usual rule on costs of interim relief applies: costs are in the case if interim relief is granted, otherwise the defendant recovers costs.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the principles governing interim relief in judicial review, emphasizing the need for the Plaintiff to demonstrate a real prospect of success. The Plaintiff's detailed grounds and evidence, along with prior judicial comments on the policy's operation, satisfied this threshold. The court acknowledged the public interest in allowing the Secretary of State to implement policies but noted that this interest is balanced by the need to protect individuals' rights and access to justice.

The court weighed three key factors: the risk of individuals losing the opportunity to challenge their removal, the minimal impact interim relief would have on the Secretary of State's policy given the limited use of Section 3, and the fact that the policy is administrative rather than statutory, and was promulgated without satisfactory consultation. These considerations led to the conclusion that the balance of convenience favored granting interim relief.

Regarding the protective costs order, the court reviewed relevant authorities establishing that such orders should cap recoverable costs to modest amounts, permitting competent but discounted legal representation in public interest cases. The court found that the Secretary of State's delay in addressing the protective costs order justified imposing a reciprocal cap on the Secretary of State's liability for the Plaintiff's costs. The cap must reflect the claimant's modest costs and the success fee, and if parties cannot agree on amounts, the matter will be referred to a costs judge.

The court clarified that the interim relief applies only to the challenged parts of Section 3 policy and confirmed that costs of the hearing would be costs in the case, rejecting the Plaintiff's submission that the hearing costs were unnecessary. The court emphasized that the usual principles on costs in interim relief applications apply.

Holding and Implications

The court granted interim relief restraining the Secretary of State from implementing the challenged parts of the Section 3 policy pending the substantive hearing of the judicial review claim.

Additionally, the court ordered a reciprocal protective costs cap limiting the Secretary of State's liability for the Plaintiff's recoverable costs to a modest amount, reflecting public interest litigation principles and the claimant's incurred costs including success fees. The parties were encouraged to agree the precise amount, with unresolved disputes to be referred to a costs judge.

The decision temporarily restrains the Secretary of State's enforcement policy in limited circumstances, ensuring individuals affected have a fair opportunity to challenge removal decisions. No new legal precedent was established beyond the application of established principles on interim relief and protective costs orders.