AA, R (on the application of) v Sodexo Ltd & Anor

A public law claim is academic where its outcome no longer directly affects the parties’ rights and obligations. The court should not determine an academic or hypothetical issue unless exceptional circumstances provide a good public-interest reason to do so. Relevant considerations may include whether similar cases exist or are anticipated and whether the issue is insufficiently fact-sensitive. Those considerations are not exhaustive. A claim may continue where confusion in administrative practice affects the liberty and treatment of a recurring class of vulnerable people, even if the individual claimant’s decisions have been withdrawn.

AA, a young Portuguese national serving a sentence in a private prison with her baby, challenged decisions treating her as ineligible or unsuitable for release on home detention curfew. The challenge concerned whether a combined stage 1 deportation letter amounted to notification of a decision to make a deportation order for the purposes of the Criminal Justice Act 2003.

After the claim was issued, the Secretary of State withdrew the stage 1 and stage 2 deportation decisions, the EUSS decision and the related HDC position. The court therefore considered whether the claim had become academic and, if so, whether there was a sufficient public-interest reason for it to continue. It also considered whether the claim against Sodexo should remain stayed because the pleaded challenge to the prison director’s decision was fact-sensitive.

1. The claim against the Secretary of State was academic. The decisions challenged by AA had been withdrawn, and there was no extant decision for the court to quash. A claim is academic where its outcome does not directly affect the rights and obligations of the parties, as explained in R (L) v Devon County Council [2021] EWCA Civ 358.
2. Academic public law issues should ordinarily not be determined. The discretion to hear them must be exercised cautiously. Exceptional circumstances and a good reason in the public interest are required, as stated in R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450 and R (Heathrow Hub Limited) v Secretary of State for Transport [2020] EWCA Civ 213.
3. The criteria identified in R (Zoolife) v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin), namely the existence or anticipation of similar cases and the absence of fact-sensitive issues, were relevant but not determinative. The first consideration was substantially met, but the second was not.
4. Nevertheless, exceptional circumstances existed. The evidence showed recurring confusion about the effect of combined stage 1 letters on HDC eligibility, affecting predominantly young and vulnerable foreign national prisoners. The confusion led to inconsistent decision-making by the Secretary of State and prison governors, and had consequences for access to liberty and resettlement. It was therefore in the public interest for the claim against the Secretary of State to continue, although expedition was no longer required.
5. The claim against Sodexo was stayed. AA’s pleaded case concerned the prison director’s decision in her individual circumstances and was fact-sensitive. The second Zoolife criterion was not satisfied in relation to that claim.