A (Iraq), R (on the application of) v Secretary of State for the Home Department

A court has discretion to hear an appeal that has become wholly academic, but that discretion must be exercised sparingly and cautiously. The party seeking to proceed must show a good reason in the public interest. Relevant considerations include whether the issue affects a large or potentially large number of similar cases and is likely to require resolution in the near future. A real prospect of legislative amendment may reduce the need for immediate determination. Where the affected class is relatively small and amendment is realistically contemplated, the public-interest threshold may not be met. The court may then dismiss the appeal without expressing a view on its merits.

The appellant sought a residence card from the Secretary of State. His request was refused and he was removed to Iraq. He had appealed to the AIT, raising whether that appeal suspended his removal. By the time of the appeal, his marriage to the EEA national concerned meant that the issue was academic to him.

The appeal was brought against the decision of Blair J dated 15 June 2009. The central question was whether the Court of Appeal should exercise its discretion to hear the academic appeal, having regard to the potential number of affected cases and a proposed amendment to the Immigration (European Economic Area) Regulations 2006.

Appeal dismissed by the majority. Lord Justice Dyson gave the principal reasons. Lord Justice Thorpe agreed that no sufficient case had been shown for hearing the moot appeal. Lady Justice Arden dissented on that issue. The Court expressed no view on the merits of the underlying appeal.

1. The court had a discretion to hear an appeal that was wholly academic between the parties. Following the approach identified in R v Secretary of State for the Home Department, Ex parte Salem, that discretion had to be exercised sparingly and only where a good reason in the public interest was demonstrated.
2. Lord Justice Dyson was not satisfied that there were actually or potentially large numbers of similar cases, or that the issue was likely to require resolution in the near future. The impact of Blair J’s decision appeared relatively limited and the affected category was relatively small.
3. The court also took account of the real prospect that Regulation 26 of the Immigration (European Economic Area) Regulations 2006 would be amended to remove the right of appeal in the relevant category of EEA decision. That prospect further weakened the public-interest case for determining an academic issue.
4. Lady Justice Arden would have permitted the appeal to continue. She relied on the general importance identified by Laws LJ, the complexity and rapid development of European Union law, uncertainty about the number of affected persons, the possible delay and non-retrospective effect of any amendment, the risk that affected persons might not receive appropriate advice, and the availability of public funding. Those considerations did not command the majority.
5. Lord Justice Thorpe concluded that no sufficient case had been demonstrated to justify the cautious exercise of the discretion. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division) — dismissed the wholly academic appeal and expressed no view on its merits.
2. High Court of Justice, Queen’s Bench Division, Administrative Court — Blair J gave the decision dated 15 June 2009, from which the appeal was brought.