Essex County Council v KA

An appellate court should not determine an appeal where the issue is academic on the facts before it and the proposed ruling would be advisory or declaratory, based on hypothetical facts. The court should not undertake a fact-finding exercise that was unnecessary below where the appellant accepts that doing so would be inappropriate. Updated administrative guidance and changed circumstances may further remove any practical need for determination. The appeal should then be dismissed without deciding the wider issues.

Essex County Council appealed from a judgment of the Queen’s Bench Division, Administrative Court, concerning the respondent’s entitlement to support under section 17 and wider issues addressed by UKBA guidance. By the time of the appeal, a human rights appeal against removal directions was due to be heard by the First-tier Tribunal. The central question was whether the Court of Appeal should determine the Council’s wider concerns despite the changed circumstances and the academic nature of the issues.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. Lord Justice Sullivan gave the judgment, with Lady Justice Black and Lord Justice Floyd agreeing.
2. Academic issue. The part of the judgment challenged by the Council was academic on the facts before the judge and had become even more academic on the facts before the Court of Appeal. The pending human rights appeal against the removal directions meant that the case was squarely within the grounds for entitlement to support under section 17.
3. Wider issues and fact-finding. The Council’s wider concerns were largely addressed by UKBA guidance that had emerged during the hearing below. In light of that guidance, the parameters of any appellate ruling were unclear. Any ruling would very likely have been advisory or declaratory and based on hypothetical facts, unless the court undertook a fact-finding exercise which had not been necessary below. The Council accepted that such an exercise would be inappropriate.
4. Order. In those circumstances, it was inappropriate to allow the appeal. The court therefore dismissed it without determining the wider hypothetical issues.

• Court of Appeal (Civil Division): Appeal dismissed as entirely academic: [2013] EWCA Civ 1261.
• Queen’s Bench Division, Administrative Court: Appeal brought from a judgment of Mr Robin Purchas QC. No citation for that judgment was stated in the judgment under review.