Fajr Ellis, R (on the application of) v Secretary of State for Justice

Article 2 of Protocol No. 1 guarantees effective and non-discriminatory access to an established system of education. It does not require education of a particular kind, level or quality. For serving prisoners, restrictions breach the right only where they impair its very essence and deprive it of effectiveness. Restrictions must be foreseeable, pursue a legitimate aim and bear a reasonable relationship of proportionality to that aim, subject to the State’s margin of appreciation. The Convention does not require detailed proportionality justification for every operational inconvenience. Practical difficulties, delays and indirect communications did not cross the threshold here. Judicial review should not become a rolling process reviewing later events as they arise.

The appellant, a serving life prisoner, pursued a research-based MSc while in custody. He challenged restrictions affecting access to books, online resources, printing, correspondence, IT facilities and academic support under Article 2 of Protocol No. 1. Foster J dismissed the generalised access challenge but upheld a separate challenge concerning withdrawal of the appellant’s Chromebook. The appellant appealed only against dismissal of the generalised challenge and also challenged refusal to add later events, including events at another prison. The central issues were the threshold for unlawful interference with access to education in prison and whether the judicial review should extend beyond the claim’s issue date.

1. Outcome. Bean LJ, with Nugee LJ and Cobb J agreeing, dismissed the appeal.
2. Amendment and rolling judicial review. The judge was entitled to draw the line at the date of issue of the claim. The claim raised points of principle and did not seek domestic-law damages. Later events, particularly those occurring at a different prison and requiring detailed day-to-day evidence, should not be introduced into the existing claim. The court approved the need to avoid a rolling judicial review, applying the approach in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 and the distinction between monitoring public authorities and challenging discrete decisions identified in R (P) v Essex County Council [2004] EWHC 2027 (Admin).
3. Scope of the right. The negative formulation of Article 2 of Protocol No. 1 does not require a State to establish or subsidise education of a particular type or level. The guarantee concerns fair and effective access to the established system of education, as explained in the Belgian Linguistics case (1968) 1 EHRR 252 and A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363. The right is not absolute, and restrictions must not impair its essence or effectiveness. Where educational facilities exist for prisoners, access should not be subject to arbitrary and unreasonable restrictions, but the State retains a margin of appreciation.
4. Prison restrictions. Mehmet Arslan and Orhan Bingol v Turkey (18 June 2019) was confined to a restriction on all access to a computer and the internet where that access was vital to continuing higher education. It did not impose an obligation to justify in detail every interference with prison education. The Article 10 authorities Kalda v Estonia (2016) 42 BHRC 145 and Jankovskis v Lithuania [2017] ECHR 21575/08 concerned different rights and total bans on access to specified websites, and offered little guidance on ordinary practical difficulties under Article 2 of Protocol No. 1. The approach was consistent with Catan v Moldova and Russia (2013) 57 EHRR 4 and the conclusions in R (ALR) v Chancellor of the Exchequer and others [2025] EWHC 1467 (Admin).
5. Application. The available support, printing arrangements, supervised IT access, communications and other workarounds meant that the appellant retained effective access to education. Operational impediments, management difficulties and security procedures did not impair the very essence of that right. The High Court’s dismissal of the generalised challenge disclosed no error of law.

1. Court of Appeal (Civil Division): The appeal against dismissal of the generalised Article 2 of Protocol No. 1 challenge was dismissed. The refusal to add later events was upheld.
2. High Court of Justice, King’s Bench Division, Administrative Court: Foster J dismissed the generalised access challenge in [2023] EWHC 2230 (ADMIN), upheld the separate challenge concerning withdrawal of the Chromebook, and dismissed the student-loan regulations challenge. No permission to appeal was sought on the student-loan issue.