R (ota Detention Action & anr) v Secretary of State for the Home Department (25 March 2020): Divisional Court refuses injunction for release of immigration detainees

The Divisional Court (President of the QBD and Swift J.) yesterday rejected an application for an interim mandatory injunction requiring the Home Secretary to take further action to release persons being held in immigration detention. The Claimants relied on two judicial review grounds, arguing firstly that the Government was breaching Articles 2 and 3 ECHR by failing to take sufficient action to safeguard detainees from COVID-19, and secondly that detention was no longer lawful because of the difficulty of enforcing removal during the current emergency. Having considered a number of expert scientific reports, as well as evidence from the Home Office as to the action it was taking, the Court held that neither ground was arguable, and that in any event the balance of convenience did not support the making of an order. It concluded that the Home Office had already put in place a system for reviewing detention on a case by case basis, with those at highest risk from COVID-19 being considered first. A substantial number of releases had already taken place and the Home Office was taking sensible precautionary measures to protect the health of those remaining in detention.

The Court also gave more general guidance about the approach to be adopted in the current emergency, where the Government response has responded at pace, and decisions are being made daily and hourly. The Courts will always stand ready to make a decision on urgent cases, but applicants must bring cases sensible and proportionally. The Court observed that this is always the case, but made clear that in the current circumstances, it is particularly important that this rule is adhered to.

Lisa Giovannetti QC represented the Home Secretary at the hearing, which was conducted with the Judges robed and sitting in open court, and counsel appearing remotely by video link from their homes. An extempore judgment was delivered.