Al-Haq, R (on the application of) v Secretary Of State for Business and Trade

Permission to appeal should be refused where the proposed grounds cannot affect an adverse factual finding that independently determines the case. An application to reopen under CPR 52.30 requires real injustice, exceptional circumstances and no alternative effective remedy. A policy referring to international obligations does not necessarily create a domestic foothold for interpreting unincorporated treaties where the decision-maker has acted outside the policy framework. Customary international law requires the necessary state practice and no positive constitutional reason against reception into the common law. Academic interest is not a compelling reason to hear an appeal lacking a real prospect of success.

Al-Haq, a Palestinian human rights organisation, challenged the Secretary of State’s decision to suspend export licences for military and dual-use equipment that might be used in Israeli military operations in Gaza, while excluding F-35 components supplied to the Global Spares Pool from the suspension.

The Divisional Court refused permission to apply for judicial review and held that the challenge was not arguable: [2025] EWHC 1615 (Admin). The applicant sought permission to appeal on grounds concerning the Strategic Export Licensing Criteria, customary international law and justiciability. It also sought to reopen Andrews LJ’s refusal of permission on a further ground under CPR 52.30. The central questions were whether the proposed appeal had a real prospect of success, whether there was another compelling reason to hear it, and whether the earlier permission decision should be reopened.

1. The application to reopen was refused. Under CPR 52.30(1), reopening requires real injustice, exceptional circumstances making reopening appropriate, and no alternative effective remedy. Following Municipio De Mariana v BHP Group plc, the relevant question was whether Andrews LJ had grappled with the proposed ground and, if so, whether there had been an exceptional mistake. Andrews LJ had addressed the complaints that the decision-making process was irrational and procedurally unfair. The applicant had not shown that the integrity of the proceedings was critically undermined.
2. Permission to appeal was refused on grounds 1, 2 and 5. The Divisional Court’s finding that the Secretary of State had made the F-35 Carve Out as a specific decision outside the SELC policy framework was a finding of fact supported by the documents. The Court of Appeal found no basis to revisit it. Consequently, arguments about a domestic foothold for interpreting unincorporated treaties, the tenability of the Government’s view of international law, and foreign act of state could not affect the result.
3. As to customary international law, the Divisional Court was entitled to apply the two-part Benkharbouche test. The asserted rule had to reflect widespread, representative and consistent state practice accepted as legally obligatory, and there had to be no positive constitutional reason against reception into the common law. The evidence did not establish the requisite practice where one state had assessed that another was not committed to complying with international humanitarian law. There was also a positive constitutional reason against reception if the asserted obligations would prevent the executive from balancing national security and international peace and security against its assessment concerning compliance with international humanitarian law.
4. There was no other compelling reason to hear the appeal. Even if the Court of Appeal might have framed the justiciability issues differently, the appeal had no real prospect of success because the factual finding about departure from SELC remained decisive. Academic interest and the importance of the legal issues were insufficient. The application for a Costs Capping Order therefore did not arise. Dingemans LJ gave the judgment; Whipple LJ and King LJ agreed.

• Court of Appeal (Civil Division) — Permission to appeal on grounds 1, 2 and 5 was refused. The application to reopen the refusal of permission on ground 3 was refused. The application for a Costs Capping Order did not arise.
• Divisional Court — Permission to apply for judicial review was refused: [2025] EWHC 1615 (Admin).
• Administrative Court — Chamberlain J directed a rolled-up hearing and refused permission to challenge the Government’s methodology for assessing the risk of infringement of international humanitarian law and other international obligations: [2025] EWHC 173 (Admin).