ZZ v Secretary of State for the Home Department

An appeal which has become academic between the parties should ordinarily be dismissed. The court retains a narrow discretion to hear it, exercised with caution, even where it raises a point of public law or statutory construction of general importance. Relevant considerations include whether the outcome has practical consequences, whether similar cases are likely to arise, whether the issue is suitable for decision without a live dispute, and whether the governing legislation has changed. A costs issue alone provides a weaker reason to proceed. Where an appellant pursues an academic appeal, dismissal does not itself justify departing from the usual rule that costs follow the event. An independent cross-appeal, unnecessary to resist the main appeal, may attract no order for costs.

ZZ, a dual Algerian and French national with prior United Kingdom immigration status, was refused admission in 2006 on public-security grounds. SIAC dismissed his appeal in 2008. Following disclosure-related proceedings and remittal, SIAC allowed his appeal in 2015, relying on up-to-date evidence under section 85(4) of the Nationality, Immigration and Asylum Act 2002: [2015] UKSIAC SC_63_2007. The Secretary of State appealed on the proper construction of that provision. ZZ cross-appealed on procedural fairness and sought to renew a legal-professional-privilege ground. Before the Court of Appeal, ZZ had been re-admitted to the United Kingdom. The central issue was whether the appeal and cross-appeal should nevertheless be heard, and how costs should be allocated.

Disposition. The Court summarily dismissed the Secretary of State’s appeal as academic. ZZ’s cross-appeal was dismissed for the same reason, and no closed hearing was required.

1. The court followed the approach identified in Hamnett v Essex County Council [2017] EWCA Civ 6 and R v Home Secretary, Ex p Salem [1999] 1 AC 450. There is no inflexible rule against hearing an academic appeal, but the discretion to proceed is narrow and must be exercised with caution. General public importance is not by itself sufficient.
2. The appeal concerned the construction of section 85(4) of the Nationality, Immigration and Asylum Act 2002. The court declined to decide that issue. No other cases were likely to depend on it because the relevant legislation had since been amended. The outcome could have no practical effect on ZZ, who had already been re-admitted and was not presently intended to be removed. The question was not altogether straightforward and was better resolved in a non-academic case under the amended legislative framework.
3. The same considerations applied to the cross-appeal. The proposed closed hearing therefore did not take place.
4. As to costs, the usual rule applied to the main appeal. ZZ was entitled to recover his appeal costs because the Secretary of State had pursued the appeal and its academic character did not justify departing from that rule. The cross-appeal was substantively independent and was not necessary to resist the main appeal. There was therefore no order for costs on the cross-appeal.

1. Court of Appeal (Civil Division): The appeal and cross-appeal from SIAC were summarily dismissed as academic. ZZ recovered his costs of the appeal; there was no order for costs on the cross-appeal.
2. Special Immigration Appeals Commission: By its 2015 judgment, [2015] UKSIAC SC_63_2007, SIAC allowed ZZ’s appeal after considering up-to-date evidence concerning national security and his family-life rights.
3. Earlier proceedings: SIAC had dismissed ZZ’s appeal in 2008. Following disclosure-related proceedings, the CJEU gave judgment in Case C-300/11; [2013] QB 1136, and the Court of Appeal subsequently remitted the matter to SIAC in [2014] EWCA Civ 7; [2014] QB 820.