P E v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Where a public-law dispute has become academic, the court should exercise its discretion to hear it with caution. A substantive hearing will ordinarily require an exceptional public interest, including comparable cases that exist or are anticipated and an issue that can be resolved without a detailed, fact-sensitive inquiry.

A court should not determine academic challenges merely to assist policy development. The absence of a live controversy, the lack of demonstrated comparator cases, and the fact-sensitive character of human-rights challenges justified dismissal of the application.

The applicant had been granted leave to remain subject to a no-recourse-to-public-funds condition. She sought judicial review of the original imposition of that condition and of a later refusal to remove it. Her challenges concerned policies governing removal of such conditions and relied on section 55 of the Borders, Citizenship and Immigration Act 2009 and articles 8 and 14 ECHR.

Before the substantive hearing, the Secretary of State agreed to remove the condition. The parties therefore had no live dispute. The preliminary issue was whether the Upper Tribunal should nevertheless determine the legality of the relevant policies.

1. Application dismissed. The Secretary of State had removed the no-recourse-to-public-funds condition, thereby giving the applicant the remedy sought. Determining the remaining challenges would therefore have been academic.

2. Applying R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450 and R (Zoolife etc) v Secretary of State for the Environment [2007] EWHC 2995 (Admin), the Tribunal held that an academic public-law dispute should be heard only cautiously and where a sufficient public interest justifies it. Relevant considerations include whether similar cases exist or are anticipated, and whether the issue can be determined without a detailed fact-sensitive inquiry.

3. Those conditions were not met. The earlier 2013 policy had materially changed shortly after the impugned decision. There was no evidence of a significant body of challenges to the January 2014 policy. The evidence concerning delayed decisions did not establish comparable challenges to that policy, and did not show that the Secretary of State had acted to prevent litigation of the issues.

4. The October 2013 policy had already been held unlawful in Fakih [2014] UKUT 513. There was little purpose in deciding further grounds against that policy where nothing turned on them. The court's function was to determine the legality of formulated policies when properly called upon to do so, not to advise the State during policy review.

5. The proposed article 8 and article 14 challenges were intensely fact sensitive. The Tribunal also expressed the preliminary view that NS [2014] EWHC 1971 (Admin) disposed of the section 55 ground. The parties were not prepared for a substantive hearing, and a further hearing merely to give obiter views would waste judicial time and public money.

Upper Tribunal (Immigration and Asylum Chamber): Judicial-review application dismissed after the Secretary of State removed the no-recourse-to-public-funds condition, rendering the dispute academic.