Refusal of Section 4 support under Regulation 3(2)(e) on the grounds that an application to the European Court of Human Rights (ECtHR) was insufficient to engage Regulation 3(2)(e). The Principal Judge’s decision in 26857 is relied upon by the respondent. Held: (i) the absence of ECtHR interim order under Rule 39 was not fatal to eligibility for Section 4 support (ii) as the Home Office had not issued removal directions, it was unclear how ECtHR might issue Rule 39 interim order as removal directions are within the gift of the Home Office and interim orders under Rule 39 can only be triggered by removal directions (iii) the Principal Judge in 26681 and 26857 had found that it was not essential that an ECtHR interim order had been issued for Regulation 3(2)(e) to be engaged as it was not a prerequisite that removal directions had been set (iv) the appellant had exhausted his domestic remedies and the case of Birmingham City Council v Amalea Clue and SSHD and Shelter  EWCA Civ 460 applied (v) it was open to the respondent to show that the appellant’s application to the ECtHR was entirely without merit or hopeless or abusive and to expedite matters at the ECtHR if appropriate.
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Published 8 February 2017