LR, R (on the application of) v Secretary of State for the Home Department

An appellate court has an exceptional discretion to decide an academic appeal. The discretion is generally exercised where the issue is of wider public importance and is likely to arise in other cases.

Relevant considerations include whether the issue depends heavily on the facts, whether it can be generalised, whether other live cases would benefit from a ruling, and whether the issue is likely to recur. Where the relevant immigration scheme has been discontinued and there is no sufficiently developed related litigation, the public interest may not justify deciding the appeal.

LR, an Afghan national and recognised refugee, applied from Germany for entry clearance under the Ukraine Family Scheme, set out in Appendix Ukraine Scheme to the Immigration Rules. The Secretary of State refused the application because LR was not a Ukrainian national.

On judicial review, the Upper Tribunal held that the scheme involved differential treatment on grounds of nationality which required justification under article 14 of the ECHR, but that the treatment was justified. It also held that refusal of entry clearance did not breach article 8 because the relationship between LR and his adult brother did not constitute family life.

LR appealed on four grounds concerning the approach to justification. During the appeal, he entered the United Kingdom and was granted indefinite leave to remain as an additional family member under ARAP. The parties agreed that the appeal had become academic. The central issue was whether the Court of Appeal should nevertheless determine it.

1. The Court of Appeal declined to exercise its exceptional discretion to determine the appeal after it had become academic. The merits of the challenge to the Ukraine Family Scheme were therefore not decided.

2. The court has an exceptional discretion to decide an academic appeal. It is ordinarily exercised where the appeal raises an issue of wider public importance which has arisen, or is likely to arise, in other cases, and where there is a wider public interest in deciding the point of law. The court may also consider how far the issue depends on the facts of the particular case and whether it can be generalised.

3. The broader issue identified on permission, concerning justification for nationality-based differential treatment in immigration law, was unlikely to produce substantial guidance for different cases. Immigration legislation, rules and guidance operate in varying contexts, and the precise context in which an allegedly discriminatory provision was introduced is highly relevant to justification.

4. There was no sufficient prospect of practical utility in deciding this appeal. The Ukraine Family Scheme had been discontinued. Although the papers had suggested that many people might be affected, the parties knew of only one other broadly similar case. That case was being pursued before the First-tier Tribunal and its judicial review proceedings had been stayed pending a decision on jurisdiction. If necessary, the issue could return to the Court of Appeal after further proceedings.

5. LR’s grant of indefinite leave to remain as an additional family member under ARAP gave him more than he could have obtained even if the appeal had succeeded. The court therefore concluded that it should not hear the academic appeal. Bean LJ and Edis LJ agreed with Lady Justice Laing’s reasons. The authorities concerning academic appeals included R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450 and R (SB) v Kensington and Chelsea Royal Borough Council Practice Note [2023] EWCA Civ 924; [2024] 1 WLR 2613.

• Court of Appeal (Civil Division): The appeal became academic after LR received indefinite leave to remain under ARAP. The court declined to exercise its exceptional discretion to determine the appeal.
• Upper Tribunal (Immigration and Asylum Chamber): On judicial review, the tribunal held that nationality-based differential treatment under the Ukraine Family Scheme was justified under article 14 of the ECHR and that refusal of entry clearance did not breach article 8. The citation of that judgment was not stated.