[2025] EWCA Civ 1134

Whether the decision is remade, or proceeds as an analysis of the judge’s approach, Mr Brown for the SSHD makes several points as to why interim relief should not have been granted in this case.

Firstly, the arrangements for accommodation of asylum seekers are a matter of national debate as the intensive media scrutiny of the events in Epping and this injunction demonstrate. The SSHD has already stated that she does not consider the use of hotels, including the Hotel in this case, to be the most appropriate way to discharge the statutory duty, including because of the cost to the taxpayer, and that the aim is to cease all such use. However, the ceasing of such use requires a structured response by the SSHD who is charged by Parliament with the accommodation of asylum seekers via a nationwide programme.

Secondly:

“It is an inescapable fact, and evidenced in Ms Jones’ witness statement, that the available asylum estate is subject to incredibly high levels of demand. This injunction essentially incentivises other authorities who wish to remove asylum accommodation to move urgently to court before capacity elsewhere in the system becomes exhausted. That creates a chaotic and disorderly approach which is anathema to the concept of holding the ring and to the SSHD’s Parliament-designated role as the expert decision-maker on the operation and management of the asylum accommodation estate.”

He adds:

“The granting of an interim injunction in the present case runs the risk of acting as an impetus for further protests, some of which may be disorderly, around other asylum accommodation. This is on the basis that the protests in Epping appear to be a material factor behind the decision now to bring this claim and not to take planning enforcement action as would normally be expected. It is unclear whether Epping has considered applying for injunctive relief against those responsible for any unlawful conduct arising from the protests. The judge had no regard to alternative mitigation of the unrest.”

Mr Brown argues that a structured response by the Home Office will further the public interest far more than closure of in-use sites as a result of a series of ad hoc interim applications, each of which may (or may not) have some individual merit, but which ignore the obvious consequence that closure of one site means that capacity then needs to be identified elsewhere in system. The cumulative impact of such ad hoc applications is a material consideration within the balance of convenience in this case.

While recognising the seriousness of the allegations made against three residents at the Hotel as at the date of the hearing before Eyre J, the fact of criminal wrongdoing (and local concerns arising from criminal wrongdoing) is not a sufficient reason to require the immediate closure of asylum accommodation infrastructure housing many other individuals, including where there will be direct impacts on other areas of the accommodation estate as a result. The offences are being properly investigated and are subject to the criminal justice system. Protests appear to be appropriately managed by the responsible authorities.

Mr Brown further argues that the court in the context of interim relief should generally seek to hold the ring by preserving the status quo. That is well recognised as being the course least likely to result in injustice. The status quo at the time of the application was that the Hotel was operational and part of the structure for accommodating (potentially) destitute asylum seekers, which is currently under significant pressure. The court applied the opposite approach (i.e. imposing change at short notice) causing major disruption to the SSHD and the asylum seekers being accommodated at the Hotel.

Beyond recognising the impact on asylum seeker residents who are registered at local GP surgeries in Epping, the judge had no regard to the obvious practical problems of relocating a sizeable number of people in a short period of time, including where they would go and how that would interact with the demand for asylum accommodation caused by new asylum seekers continuing to arrive in the country as well as the impact on other areas of the accommodation estate.

The written skeleton argument filed on behalf of the SSHD included a submission that “the relevant public interests in play are not equal” and that one aspect of this is that the SSHD’s statutory duty is a manifestation of the UK’s obligations under Article 3 ECHR, which establishes non-derogable fundamental human rights. Mr Brown did not refer to this point in oral argument and we think he was right not to do so. Any argument in this context about a hierarchy of rights is in our view unattractive.

Mr Brown further argued that the judge was wrong to have embarked on an examination of the strength or otherwise of the parties’ respective cases on the issue of whether planning permission was required. Mr Green objected to this point being raised in oral argument when it had not been made in either the Grounds of Appeal or the skeleton arguments. We upheld the objection.