The question in respect to an application seeking interim relief (of which an injunction forms one such relief) is a complicated one.
The reason for this is because whether or not interim relief is required will depend on the circumstances the individual finds himself in. Traditionally, the necessity for interim relief is required in a narrow window and often an application, appeal or Judicial Review application will suffice to stop enforcement action from the Home Office. Enforcement can only take place if there are no ‘barriers to removal’ and applications, appeals and Judicial Review applications are such barriers to removal (other than in very case specific examples).
This article is addressing interim relief specifically.
In immigration, the main need for interim relief is normally associated with removals/deportations that are ‘chartered’. This means that the Home Office have arranged a specific flight for individuals of the same nationality to return on one flight. This is oppose to normal commercial flights that some are returned on. You can identity a chartered flight because of the initials ‘PVT’ (or private) on the flight details.
Due to changes in immigration laws introduced in 2014, removals can sometimes be served upon an Applicant at short notice. It can follow the refusal of an application where there is only an out of country or when an individual has been detained and has no pending applications with the Home Office. Applications for interim relief can be made in one of two ways.
Firstly, if an individual can submit an application for Judicial Review by 4:30pm, the Upper Tribunal (or the High Court) can review applications for interim relief on the same day – this is known as in-hours.
However, this is not always possible given the abrupt nature of removals. Therefore, there may be occasions where an application can only be made out-of-hours. Simplistically put, an individual or their legal representatives will need to contact the Court Clerk for the Queens’ Bench Division to seek permission to file an application for interim relief. If permission is granted, an application form, grounds setting out the reasons why interim relief is required and supporting documents will need to be filed with the Court Clerk as soon as possible. Grounds can rely on a number of reasons such as human rights, international protection or European law.
Once the application is submitted, the legal representative or a barrister (if one can be found on short notice) will then give submissions on the telephone before the Duty Judge as to why interim relief should be ordered. Please note that the standard of proof or legal threshold to justify interim relief is of the balance of convenience.
The Duty Judge will then make a decision on whether interim relief is to be granted. If the decision is negative, then application before the Court of Appeal can be made but practically speaking there is often insufficient time to do so.
Where the interim relief application has been granted, the Court Clerk will email over to the legal representative and Home Office a copy of the Order to make sure removal has been deferred. However, your legal representative should also be seeking confirmation that the Home Office have received the Order and the terms will be adhered to. The Judge will then normally ask that the legal representative give an undertaking (a formal promise of which a breach has serious implications) as to when a Judicial Review application is to be submitted – some Judges are known to expect such an application to be filed the following working day.
In any event, you will need to go to the Royal Courts of Justice to pay for the out-of-hours application, to pay for the Order to be sealed (signed and stamped) by the Judge and then filed with the Upper Tribunal or High Court (depending on who has jurisdiction over the Judicial Review claim).
You will see that there are complicated, and time sensitive issues involved with seeking interim relief -particularly when done out-of-hours and you should seek legal representation immediately should you require assistance.
How we can help
Our immigration lawyers are experts in dealing with emergency injunctions. We will help you to decide what your options are and once you understand your options, will offer you a tailor-made service for the process. Contact us on 020 3540 7770 or e-mail us at firstname.lastname@example.org