A public authority has made an unlawful decision and you want to challenge it.
However, getting your case before a court or tribunal takes time, usually months, and you might be negatively affected by the decision before the full hearing takes place. Even worse, you might be suffering the effects of the decision already. If this is the case, an application for interim relief could be necessary.
Our Joseph O’Connor considers how applications are made, and what you will need to show in order to make a successful application. As ever, this is not intended as legal advice, and you should get in touch if you need assistance with your particular case.
What is interim relief?
Interim relief is obtained where a court makes an order that provides protection to the interests of one or more of the parties to litigation, which takes effect until the full hearing takes place.
The order will require one or more of the parties to the litigation to do, or not do, some specific thing which negatively affects the other side. As suggested by the name, it provides relief from some actual or threatened harm, on an interim (or temporary) basis.
In the immigration context, this will usually mean an individual asking a court to order the Home Office to do, or not do, something, as a part of their wider judicial review claim.
Why might I apply for interim relief?
Bringing a judicial review against a public body can often take months, but you could be adversely impacted by a decision of a public body from the moment the decision is made. See our detailed explainer for more information on the judicial review process.
For example, if a local authority is threatening to remove you from your home, an interim relief order might prevent this from happening until you have had a chance to present your case to the court.
In the immigration field, the Home Office may have made a decision which has the effect of preventing you from legally continuing in employment: it is possible to apply for interim relief to protect that right, meaning you can continue to work, until your full legal challenge to the decision can be heard.
You may also find that interim relief allows you to continue to benefit from other rights associated with your status, such as an ability to claim benefits or access the NHS, if the Home Office has attempted to remove these rights.
Another example is where the Home Office is taking steps remove you from the UK. In that situation, interim relief may prevent removal until you have had the chance to put your case about why you should be able to remain in the UK.
If you have been wrongly removed from the UK, you may be able apply for an order that the Home Office return you so you can be in the UK while your legal challenge to removal takes place. This is a further example of interim relief.
In essence, if you need to stop the effects of an unlawful decision now rather than later, you should consider making an application for interim relief.
What do I need to show to get interim relief?
To be successful in obtaining interim relief, you need to convince a judge that:
- Your case has a reasonable chance of being successful at a full hearing;
- Damages would not be an appropriate remedy; and
- The disruption and difficulty that you would face from the effects of the unlawful decision outweigh the negative effects to the public authority or wider society of the decision being temporarily suspended. Judges refer to this as assessing the “balance of convenience”.
Reasonable chance of success
When this aspect of the application is considered, the court will look at the underlying judicial review claim, and consider its prospects of success.
If you are successful in obtaining permission to pursue your application for judicial review then it is more likely that you will manage to get past this hurdle.
If your case has no realistic prospect of success then it is unlikely that you will receive interim relief.
Damages not appropriate
In most public law cases, damages will not be an appropriate remedy because what is sought by the claim is some specific result, such as (using the examples above) a right to work, or an order directing the Home Office to remake a decision, rather than damages.
For this reason, it is often relatively straightforward to pass this hurdle in public law cases. For example, if the Home Office are trying to remove you before you have had a chance to present your claim, damages are no help to you.
If your local authority is refusing to accommodate you or provide a child in need with an essential service, you are seeking the provision of support rather than damages.
It is worth bearing in mind that damages may not be an appropriate remedy even if the main effect of an unlawful decision is that it hurts your bottom line.
As a demonstration, if you are denied a right to work, you may be able to recover damages for lost earnings at the full hearing, but that won’t help you pay your rent or your mortgage right now.
Balance of convenience test
When assessing the balance of convenience, there are no set rules about how judges will decide such cases, but there are some common factors which guide decisions.
The key idea is that the judge is weighing up whether granting interim relief or refusing interim relief causes the least unfairness overall.
A judge will usually consider:
- The strength of your case;
- The harm to you if interim relief is not granted; and
- The harm the decision maker and wider public may experience if interim relief is granted.
When considering the strength of your case, the judge will look over the evidence before them at that stage.
This includes the information provided as part of your permission application and any evidence provided by the decision maker. A judge is not going to want to prejudice the Home Office or another public body if they believe your case will ultimately fail.
When considering the harm to you, any serious detriment which you are experiencing or about to experience as a result of the decision of the public body is relevant.
Examples might include the threat of homelessness, being unable to pay your mortgage or rent, worsening health problems, being removed from the UK, or there being a risk of your human rights being breached.
When assessing the harm to the decision maker and the public, a judge is likely to consider any costs incurred by the decision making body, such as the cost to a local authority of accommodating you.
However, they will also consider whether granting interim relief undermines the ability of the Home Office or local authority to perform their public functions and whether it prevents the public body from enforcing any rules or policies which are on the face of it lawfully made.
If you are complaining of the effects of a specific decision which only affects you, such as a decision on an immigration application, it is probably going to be easier to obtain interim relief.
If you are challenging a wide ranging policy that affects a large group of people, obtaining interim relief is more likely to be an uphill struggle unless the harms experienced by you and others are particularly serious.
How to apply for interim relief?
You apply for interim relief at the same time as applying for permission to bring a judicial review to the Administrative Court or the Upper Tribunal (which location will depend on the nature of the decision under challenge).
There are specific forms you need to complete in addition to the usual forms used when applying for permission. These are the N463 form if you are applying to the Administrative Court and the T483 form if you are applying to the Upper Tribunal.
In addition to completing the correct form, you will also need to provide written reasons why you need interim relief. You should also provide a draft order which sets out the interim relief you want.
In some cases, you might be granted interim relief on the basis of your written papers alone, but usually the court or tribunal will arrange a short hearing so that both parties have an opportunity to present their arguments as to why interim relief should, or should not, be granted.
What happens if my application is successful?
If you are successful in convincing the court that interim relief is required, the judge will then make an order granting you relief.
The judge may adopt your draft order or they may draft their own order which requires the Home Office or other public body to do or not do something, usually by or until a specific date.
The exact content of the order will depend on the relief sought. For example:
- The order may suspend the effect of a decision of the Home Office revoking your right to work meaning your right to work is reinstated;
- If you are resisting removal, you may receive an order which prevents you from being removed from the UK until you have had an opportunity to submit an application for leave to remain; or
- If you are seeking accommodation, you may receive an order requiring that you be accommodated within the next 24 hours and then up until the point of your full hearing.
Usually a judge will order that any decision on costs (i.e. who should pay for the work in preparing the interim relief application) be delayed until the full hearing is concluded.
What happens if my application is unsuccessful?
If your interim relief application is unsuccessful then it may indicate trouble ahead for your underlying judicial review. Whether or not this is the case will depend on the reasons why the application was refused.
If a judge is not convinced that you have a strong case, then this is highly likely to be damaging for the chances of your underlying application.
However, if a judge accepts that you do have a strong case but states that on balance the problems or harms you will experience are not sufficiently serious to justify granting an interim order, then your full judicial review may still have a good chance of being successful. This may happen if, for example, you are able to secure alternative accommodation.
If you are unsuccessful in obtaining an interim order, you may find that your costs for working on the application are not recoverable from the other side or even that a judge orders that you have pay for the costs incurred by the other side in defending your interim relief application. See our separate post on costs for more on this.
This is one reason among many why it is important to ensure that your application and your evidence is as strong as possible before you apply for permission to bring a judicial review, or apply for interim relief.