Walker, R (On the Application Of) v Secretary of State for the Home Department And Anor

An appellate court should ordinarily decline to determine an appeal that has become academic where the respondent’s offer gives the claimant everything, or virtually everything, obtainable by success. The court may nevertheless hear the appeal where the offer is significantly disadvantageous, or where other pending cases demonstrate a point affecting a significant number of cases and the public interest requires determination. A proposed test case or case with wider ramifications should identify that purpose when proceedings begin. Practical prejudice from refusing to hear an academic appeal may be assessed by the likely treatment of the underlying issue in subsequent proceedings.

The claimant challenged decisions concerning an application for further immigration leave. The application was rejected as invalid because it lacked a required photograph, and a later application was refused. Beatson J rejected the judicial review claim on 29 June 2010. On appeal, the Secretary of State offered to make a further decision on the claimant’s Article 8 application and conceded that the decision would carry appeal rights. The central issue was whether the offer removed any practical purpose from the appeal or whether the appeal should nevertheless be heard in the public interest.

1. Disposition. Stanley Burnton LJ gave the leading judgment, with Rix and Patten LJJ agreeing. The court declined to determine the substance of the appeal because it had become academic.
2. Where a respondent’s offer substantially provides the relief that success on the appeal could achieve, the court should not hear the appeal unless the offer is significantly disadvantageous to the appellant or other pending cases establish a point affecting a significant number of cases such that there is a public interest in determination.
3. The Secretary of State’s offer provided a further decision on the Article 8 application with appeal rights. It therefore gave the claimant everything, or virtually everything, she could obtain by succeeding. Late evidence suggesting wider ramifications did not establish a sufficient public interest. A genuine test case should make its wider purpose clear when proceedings are commenced, rather than raising it at the last moment when settlement may conserve public funds.
4. The court also considered the claimant’s possible prejudice. If a later immigration decision-maker considered the application, the fact that it was out of time only because of the missing photograph should receive relatively slight weight. That observation did not determine the merits of the Article 8 claim. The court suggested that, where an offer affects the efficacy of an appeal, the parties should promptly notify the Appeal Court Office and seek a paper determination of whether further costs should be incurred and whether the appeal should proceed.

• High Court of Justice, Queen’s Bench Division, Administrative Court: Beatson J rejected the claimant’s judicial review claim on 29 June 2010, holding that the initial application was invalid without the required photograph.
• Court of Appeal (Civil Division): The court treated the appeal as academic following the Secretary of State’s offer and declined to determine its substance.