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

This is an appeal against the decision of Blair J of 15 June 2009. Permission to appeal was given by Laws LJ who explained that in his view it raised a point of some general importance. Mr Eicke in his skeleton argument has raised a threshold point which arises because, as Mr Fordham who represents the appellant readily concedes, the appellant has no interest in the outcome of this appeal at all.

It is unnecessary to explain the detailed background. In short, the appellant sought the issue by the Secretary of State of a residence card. That request was refused and the appellant was subsequently removed to Iraq. One of the central questions raised by the appeal is whether the appeal to the AIT against the Secretary of State’s refusal had the effect of suspending his removal to Iraq.

The reason why this appeal is academic to the appellant is because he has recently married the EEA national with whom he claimed to have a sufficient relationship to justify the issue to him of a residence card. Mr Eicke has drawn our attention to the decision of R v Secretary of State for the Home Department, Ex parte Salem [1999] 1 AC 450 and the speech of Lord Slynn in which he said that appeals which are wholly academic between the parties “should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future” in any event.

Mr Fordham acknowledges, rightly, that this court has a discretion whether or not to hear the appeal, notwithstanding that it is wholly academic to the appellant. He submits that the discretion is large, although he accepts that he must show that there is a good reason in the public interest for this court to entertain the appeal. He submits that there are good reasons in the public interest for doing so.

For my part, I would accept that the legal issues that Mr Fordham raises are arguable. The reasons, however, why in my judgment it would be wrong for this court to entertain the appeal are, first, I am satisfied that there are not actually or potentially large numbers of similar cases, still less of cases that are such that, to use Lord Slynn’s language, the issue would most likely need to be resolved in the near future in any event.

There was an argument before us as to the extent to which the impact of the decision of Blair J is limited or rather wider. In my judgment Mr Eicke is right in submitting that its impact is relatively limited and that the category of cases affected by it is relatively small. The Secretary of State has been unable to provide this court with any numbers, but I accept the general statement made by Mr Eicke on the basis of his instructions. That factor alone would cause me to have very considerable reservations about entertaining this appeal. It is long established that the courts do not decide questions which are academic as between the parties to the lis.

But a second point also seems to me to be highly relevant. Mr Eicke has told us on instructions that Regulation 26 of the Immigration (European Economic Area) Regulations 2006, which are the relevant regulations for the purpose of this appeal, is to be amended; it is to be amended so as to provide that there should be no right of appeal at all in this category of case, i.e. the category of appeals against EEA decisions falling within (b) of the definition in Regulation 2(1). Apparently ministerial approval has been given. Mr Eicke is unable to say when the amendment will be introduced, and of course it is relevant to bear in mind that an election is impending. Nevertheless it seems to me that at the very least there is a very real prospect that Regulation 26 will be amended.

It seems to me that in these circumstances it would be wrong for the court to exercise a discretion, which it undoubtedly has, to hear this wholly academic appeal. That discretion should be sparingly exercised and only where good reason is demonstrated that it should be in the public interest for doing so. For the reasons that I have given, I am not persuaded that there is such a good reason, and I would refuse to hear this appeal and would therefore dismiss it.

I am most grateful to my Lord, Lord Justice Dyson, but I have respectfully come to a different conclusion. I would have been prepared to exercise my discretion to hear this appeal. I fully appreciate that on the authorities the exercise of discretion in these circumstances must be undertaken with considerable caution. However, in this case Laws LJ has indicated that the question whether an extant appeal in circumstances such as those of the present case, ie in the present circumstances the hypothetical circumstances of the present case, has substantive effect vis-à-vis removal ought to be decided by this court.

Second, as I see the arguments they are likely to involve questions of European Union law and they arise on an extremely complex Directive in which jurisprudence is developing fast both here and in Luxembourg.

Third, Mr Eicke has informed us that there is a prospect of an amendment, but there would be a long lead time needed for such an amendment. We have no evidence as to when the amendment would be prepared. For various reasons connected to the Parliamentary process, an amendment could be delayed and the Secretary of State has understandably given no undertaking about an amendment. I assume it would not in any event be retrospective. In my judgment we can only deal with the law as enacted by Parliament, which would in any event affect existing cases. By way of further reason, the argument to be heard on this appeal would have a direct bearing on the form such an amendment could take.

As to the numbers of persons involved, that is clearly a relevant consideration but we have no hard evidence about the numbers involved and Mr Eicke has properly accepted that the argument of the appellant involves a wider class than simply persons who are in precisely the same position as the appellant. We all know from common experience that a large number of EEA nationals from other member states seek to exercise their rights of residence in the United Kingdom so as to obtain employment. There must be a larger number of persons who might claim residence rights or rights within Regulation 2(b) as a matter of European Community law and thus form members of their class. So we are in a position where we do not know that the number is in fact minimal.

Fourthly, there is the question that of course the people who are affected by this point of law are people who may be the subject of removal directions served quickly and who may not be advised by persons who know that there is an arguable point and who know what Laws LJ said. In those sorts of circumstances, it seems to me desirable that this court should reach a view so that the law in this area is accessible and certain.

The last point I would make is that there is public funding for this appeal and that public funding was approved in the knowledge that in the particular circumstances of this case the matter was academic. The point has been put by Mr Fordham thus: that it is capable of being approved as a matter of public funding because the matter is already in this court, and if there is a further issue on this point it will have to come up through the High Court again thus involving extra costs, whereas the costs of today’s appeal have been fully incurred and approved.

In those circumstances, respectfully differing from my Lord, Lord Justice Dyson, I would permit this appeal to continue.

At least my Lord, Lord Justice Dyson, and my Lady, Lady Justice Arden, are at one that the discretion to allow a moot appeal to proceed should be exercised “sparingly” or “cautiously”. I conclude that no sufficient case to earn the exercise of such a discretion has been demonstrated. The appeal is dismissed, although we express no view at all on its merit.