RA & Anor (R, on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs

Civil Procedure Rules 1998 case-management powers concern the individual case before the court. They do not ordinarily authorise a judge in one case to make orders intended to operate directly in other existing or future cases, outside a specific procedural framework. Judicial review may identify and quash an unlawful policy, but the court must not formulate policy or make the executive adopt its policy. Mandatory relief requires regard to the authority’s statutory functions, the public interest and the separation of powers. An unusual order must also be procedurally fair, with advance notice and an opportunity to address its proposed terms.

Three appeals arose from orders made by Swift J in the context of the Afghan Relocations and Assistance Policy and the Afghanistan Response Route. In MZZ and RA and AA, repeated delays and failures of candour in closed proceedings led the judge to impose general directions requiring senior witness evidence for applications to extend time in a wider class of cases, including future cases.

The third appeal concerned a court-initiated closed hearing relating to the ARR policy. The judge ordered the Secretaries of State to amend and operate the policy, and to provide revised or new policies to the Special Advocates’ Support Office and the Judge in Charge of the Administrative Court. The appeals raised questions about jurisdiction, case-management powers, the separation of powers, the role of special advocates and procedural fairness.

Each appeal was allowed and the challenged orders were set aside.

1. Case-management jurisdiction. The powers in Part 1 of the Civil Procedure Rules 1998 concern management of the case before the court. They do not confer a general power to make orders intended to have direct effect in other cases, cases before other judges or claims not yet issued. Specific frameworks, such as group litigation orders, do not establish a general jurisdiction of that kind.
2. Constitutional limits. The court may determine that an administrative policy is unlawful and grant relief requiring lawful reconsideration. It does not formulate policy. A mandatory order requiring a minister to adopt a policy makes the court the primary actor and transgresses the boundary between the judiciary and executive, particularly where a national policy is involved. The discretion to grant mandatory relief must also take account of the impact on the public authority’s statutory functions, the public interest and the separation of powers, as explained in R (Imam) (Respondent) v London Borough of Croydon [2023] UKSC 45. The constitutional limits of judicial review were also reaffirmed by R v Secretary of State for the Environment, Ex p Nottinghamshire County Council [1986] AC 240.
3. Application to the first two appeals. The general directions exceeded the proper use of case-management powers. The challenge to their breadth was unnecessary to the decision, although the exceptional circumstances would have justified considerable latitude if such directions had been within jurisdiction.
4. ARR order. The mandatory policy direction, the requirements to circulate material to SASO and the lack of advance notice of the proposed orders rendered the process unfair and unlawful.

A possible alternative would have been a discrete order in the existing cases, coupled with a closed judgment drawing the court’s concerns to the attention of responsible ministers and other judges.

1. Court of Appeal (Civil Division): By [2026] EWCA Civ 3, all three appeals were allowed and the orders were set aside.
2. High Court, King’s Bench Division: Swift J made the general directions in MZZ and RA and AA, and later made the mandatory ARR policy order in proceedings styled In the matter of the Secretary of State for Defence.