MA, R (on the application of) v Secretary of State for Defence

An academic appeal should proceed only in the exceptional case where it raises an issue of wider application. It is unnecessary to hear an appeal merely to correct case-specific errors or to repeat guidance already given by the Court of Appeal in [2024] EWCA Civ 278.

For Category 4 of ARAP 3.6, Conditions 1 and 2 are separate and cumulative. Condition 1 concerns the applicant’s relationship with a UK Government department. Condition 2 concerns the contribution made to UK military or national security objectives. On judicial review, the usual remedy for an unlawful eligibility decision is quashing and remittal. Substitution is confined to the rare case where only one lawful outcome is possible.

Two joined applications for permission to appeal arose from judicial review claims concerning Category 4 eligibility under the Afghan Relocation and Assistance Policy. In MA, Swift J quashed the Ministry of Defence decision and substituted a finding of eligibility: [2024] EWHC 332 (Admin). In MP1, Julian Knowles J found failures to consider relevant evidence and give adequate reasons, also treating Conditions 1 and 2 as conflated, and quashed and substituted the decision: [2024] EWHC 410 (Admin).

In May 2024 the respondents were granted leave outside the Immigration Rules, making the proposed appeals academic. The Secretaries of State nevertheless argued that the cases raised issues of wider importance. The central question was whether the court should exercise its exceptional jurisdiction to permit academic appeals to proceed.

Applications for permission to appeal refused. The court declined to exercise its exceptional jurisdiction to hear the joined applications, although it would have granted permission if the appeals had remained live.

1. The interpretation of Conditions 1 and 2 of ARAP 3.6 had already been definitively determined in R (on the application of LND1 and others) v Secretary of State for the Home Department and another, [2024] EWCA Civ 278. Conditions 1 and 2 are separate requirements. Condition 1 concerns the relationship or proximity between the applicant’s work and a UK Government department. Condition 2 concerns the contribution made to the United Kingdom’s military or national security objectives. Lower courts, tribunals and decision-makers were bound to follow and apply that interpretation.
2. The complaints that the judges had misapplied the policy to the evidence, failed to consider relevant evidence, gave inadequate reasons or wrongly concluded that only one outcome was possible were substantially case-specific. The guidance in [2024] EWCA Civ 278 already addressed the treatment of pro-forma reasons and the need for adequate reasons.
3. The court endorsed the principle that a reviewing judge should ordinarily quash an unlawful decision and remit it for reconsideration. Substitution is appropriate only in the rare case where only one lawful outcome is possible. Even where an applicant has a strong case, eligibility under Conditions 1 and 2 remains an evaluation for the decision-maker.
4. The court rejected any suggestion that being an Afghan judge, without more, satisfied ARAP. Eligibility required a case-specific evaluation of the individual evidence and roles, consistent with the observations in R (JZ) v Secretary of State for the Home Department, [2022] EWHC 2156 (Admin). A possible issue concerning the interpretation of Condition 1(iii) and the approach in R (CXI) v Secretary of State for the Home Department, [2023] EWHC 284 (Admin), had not been made a ground of appeal or argued. The later decision in CX1, [2024] EWHC 94 (Admin), appeared to endorse that approach, subject to the facts. Any tension would be resolved by the Court of Appeal’s later binding interpretation.

• Court of Appeal (Civil Division): The joined applications for permission to appeal were refused because the proposed appeals were academic and raised no unresolved issue of wider application.
• High Court, Administrative Court: Swift J allowed MA’s judicial review claim, quashed the decision and substituted his own conclusion: [2024] EWHC 332 (Admin).
• High Court, Administrative Court: Julian Knowles J allowed the MP1 claim, quashed the decision and substituted his own conclusion: [2024] EWHC 410 (Admin).