[2025] EWCA Civ 1134

We are in little doubt that the Council should have notified the SSHD of its intention to issue injunction proceedings prior to doing so, and given her the chance to consider the same in accordance with the Practice Direction: Pre-Action Conduct and Protocol paragraphs 3 and 6. It did not. Had it done so, the parties would have had the chance to decide “how to proceed” (para.3(b)) and consider what steps could or should be taken to achieve efficient and timely case management (para.3(e)). That said, once the Home Office was aware of the existence of the injunction proceedings, it should have taken prompt and effective steps to seek party status and/or intervene. It did not. Mr Brown on behalf of the SSHD accepts that more should have been done and quickly to achieve effective intervention in the litigation. We recognise that the judge was placed in a difficult position when presented with the application by the SSHD to intervene to make representations in a case following the hearing, and in the adjourned period while he was considering and drafting his reserved judgment. This was of course, as Mr Brown again accepted, most unsatisfactory.

However, in our judgment, the judge erred in refusing the SSHD intervener status in several respects, both in his evaluation of the “gateway” and in any event in the exercise of his discretion.

First, the judge failed to give CPR rule 19.2(2) the “wide interpretation” it required (Pablo Star, see above) which led to his erroneous finding that the SSHD’s application did not satisfy its terms. His finding that he could “resolve all matters of dispute in the proceedings” without the engagement of the SSHD as a party (see [60] above) failed to have any or any adequate regard to the range of “issues” which would be likely to arise if the injunction were granted which directly impacted on the SSHD; these included but were not limited to the significant practical challenge of relocating a large number of asylum seekers in a short space of time, in respect of which the SSHD uniquely had a statutory responsibility.

In his reserved judgment, he described the pressure on the SSHD in finding accommodation for asylum seekers:

“[56] … there is a real need which the Secretary of State for the Home Department has a statutory duty to meet. The use of the Bell to accommodate asylum seekers provides assistance in meeting that need and that is a factor of considerable weight.” (emphasis added by underlining)

The judge’s recognition of the SSHD’s duty in this respect, and in particular his acknowledgment that the Hotel played an important part in meeting that duty (“a factor of considerable weight”), throws into serious doubt his finding in the party-status judgment that there is no “issue which means it would be desirable to add the SSHD” ([15] of the party-status judgment quoted above). It was clear that the SSHD had “legitimate” (Betta Oceanway) grounds for asserting that her “rights” (though, on these facts, more accurately her duties), “may be affected by the decision” in the case, and the judge was wrong to reject them.

Secondly, the judge addressed the public interest arguments in play, identifying the public interest in the SSHD’s duty to accommodate asylum seekers, and the public interest in the “enforcement of planning control”. He indicated that the only issue was the “weight” to be attached to the public interest in housing asylum seekers “as against other matters”. In the substantive judgment, he said at [114]:

“The most important factor against the grant of interim relief is the importance of the public interest in the accommodation of destitute asylum seekers. As noted above that is a public interest recognised by the imposition of a statutory duty on the Home Secretary and the use of the Bell to accommodate asylum seekers is an element in the performance of that duty.” (emphasis added by underlining)

The judge’s apparent attachment of “considerable weight” to the SSHD’s statutory duty ([56] of the reserved judgment), and his acknowledgement of the importance of the public interest in the accommodation of destitute asylum seekers ([114] of the reserved judgment) render even more puzzling his decision then to refuse the SSHD party status. The SSHD sought to facilitate the provision of evidence and argument to expand on and illuminate these points.

In excluding the SSHD from this process, the judge denied himself the opportunity to take a wider look at the range of public interest arguments which could or would have been likely to be advanced to inform the “balance of convenience” test. Those arguments ranged more widely than merely “the accommodation of destitute asylum seekers” which the judge himself had identified (see extract above). The judge did not for example consider the public interest in the UK’s compliance with international humanitarian and legal obligations towards asylum seekers; nor did he specifically consider the public interest (coinciding with the statutory obligation on the SSHD) to avoid destitution among asylum seekers; issues of public safety would inescapably be caught by the wider public interest analysis, as would the impact on the local community; security of the asylum estate nationally and locally is a matter of current intense public interest, as is local and national policing; transparency and accountability of operational and strategic decision-making about where and how asylum seekers are housed is a matter of public interest, as are economic considerations both local and national. These were obviously matters in respect of which the SSHD had a pivotal constitutional role and which she could therefore materially contribute to the judicial decision-making through evidence and legal argument. The weight to be attached to, and the range of, public interest arguments rendered it more than merely “desirable” in our judgment that the SSHD be enabled to participate in the court process to enable the judge to determine the application from the most informed perspective.

Thirdly, and aligned with the second point, the SSHD was in a strong position to provide evidence relevant to the “dispute” and “issues” before the court at the interim and at the final hearing. The judge recognised the evidential lacuna: “it may be that the SSHD has evidence which would assist in making an assessment of the weight to be given in this case” (see again [15] from the party-status judgment). This would, in our judgment and in contrast to the position taken by the judge, have provided ground on its own for joinder of the SSHD.

The judge was wrong to suggest that the SSHD could or would simply feed Somani with the relevant evidence at the final hearing; Somani and the SSHD held aligned but altogether different interests. Only the SSHD could speak authoritatively to the hardship which would be caused to the asylum seekers currently at the hotel in the event of temporary closure and the impact on them of rushed relocation. In undertaking the balance of convenience, the judge had no information about where the 138 asylum seekers currently housed at the Hotel would in fact go in the interim period prior to the final hearing. The fact that the SSHD had not been a party to a number of the previously decided injunction cases (see for instance Ipswich) and had apparently provided evidence by witness statements to the defendants in each case, was not in itself a reason for her not to be joined into this litigation. This was all the more so since (a) there is no indication from the earlier judgments that she had ever previously sought to be so joined and (b) in this case the Council had not joined (as claimants in other cases had) the service provider (CTM in this case) as a defendant to its application. The provision of key evidence by someone outside of the litigation to someone within the litigation hardly meets the expectation of a “right to be heard” (Pablo Star / Blenheim).

Moreover, Somani had specifically asserted in its written evidence that it had taken advice from the SSHD, sometime before 15 May 2025, that it would not be necessary to submit a temporary application for “change of use”; it is surprising that this in itself did not pique judicial interest into the role of the SSHD in the central dispute about planning control, and accordingly the “desirability” of joining her into the litigation.

Fourthly, and quite apart from these factors, it appears that the judge primarily applied a test of “necessity” rather than “desirability” when considering the SSHD’s application. He explicitly asserted that “the joinder of the SSHD is not necessary” (see [60] above), and that “the Court can resolve all matters of dispute in the proceedings” without the involvement of the SSHD. The judge’s use of the word “necessary” was, in our judgment, not accidental, and did not directly refer to the submissions of Mr Brown. He plainly had in mind that necessity may be relevant given that he explicitly and separately went on in the next sentence to discuss the “desirability” of joinder. The judge’s reference to “necessity” reveals an unsound judicial approach to the determination of the criteria in the gateway which unwittingly caused him to set the bar for joinder too high.

Fifthly, and finally, thejudge was clear that even if he had been satisfied that the SSHD could pass through the relevant gateway, he would have exercised his discretion against joining her as a party. In this regard, he was, we accept, entitled to be concerned about the delay which may be caused to the determination of the interim injunction application (“loss of further court time”). But delay was only one factor and was not a particularly significant one given that counsel had agreed that submissions could be marshalled and filed in double-quick time. No mention was made in [17] of the party-status judgment (see [62] above) of the powerful public interest arguments discussed above, nor of the duty on the SSHD to comply with her statutory obligations. These would, in our view, have been highly relevant to the exercise of discretion. We reject Mr Green’s suggestion that the short “delay” likely to be caused by the determination of the application by the filing of further evidence took this case outside of the ordinary circumstances contemplated by Males LJ in Betta Oceanway (at [41], see above); we are clearly of the view that this is a case in which the exercise of discretion would have followed the finding of “desirability”.

For these reasons, we grant permission to the SSHD to intervene in this appeal; permission to appeal on the joinder issue; and allow the appeal on ground one. The SSHD may accordingly be added as a party to the High Court proceedings from this point onwards. The fact that the SSHD was wrongly denied party status, and the “right to be heard” (Pablo Star / Blenheim), on this application in itself tends to undermine, at least to some degree, the judge’s ultimate reasoning and decision. Against this backdrop, we turn to the applications for permission to appeal against the interim injunction.