LR, R (on the application of) v Coventry City Council

This is an application for permission to appeal (with the appeal to follow should permission be granted) against a judgment of His Honour Judge Tindal (“the Judge”), sitting as a High Court Judge in the Administrative Court.

The parties were informed at the conclusion of the hearing before us on 23 October 2025 that permission to appeal would be refused. This judgment gives my reasons for joining in that decision.

The appellant, LR, is now aged 16. She was born in Nigeria but came to the United Kingdom with her parents and younger brother in 2012. Her parents had visitor visas but these expired without any application being made for renewal. LR’s parents nevertheless remained in the United Kingdom, becoming “overstayers”.

In 2023, by which time LR’s parents had had another son, LR’s mother left LR’s father following domestic abuse. The respondent, Coventry City Council (“the Council”), provided LR, her mother and her brothers with emergency accommodation in a hotel from which they subsequently moved to a shared house. The Council also gave the family financial support.

However, the Council proceeded on the basis that, lacking leave to remain, the family was ineligible for support under the mainstream welfare benefits system. In that connection, paragraph 1 of schedule 3 to the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) provides that a person to whom the paragraph applies shall not be eligible for a range of benefits, including under section 17 of the Children Act 1989 (“CA 1989”). By paragraph 3 of schedule 3 to NIAA 2002, however, paragraph 1 “does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of … a person’s Convention rights”.

In November 2023, LR’s mother applied for leave to remain under the Immigration Rules and Article 8 of the European Convention on Human Rights (“the ECHR”). At the time of the hearing before the Judge, that application had not yet been determined.

By mid-2024, the Council was paying the family £196.72 a week pursuant to an assessment dated 24 April 2024. On 16 July 2024, LR issued a judicial review claim challenging that assessment. The remedies sought were specified in the claim form as:

“i)

A Declaration – declaring that the current provision of financial assistance to [LR] and her family is unlawful by being contrary to s. 17 [of CA 1989] and Article 8 ECHR.

ii)

A Declaration – declaring that [the Council’s] published policy/practice in relation to provision of financial assistance under s. 17 CA 1989 is unlawful to the extent that it is fixed on provision being no more than financial provision currently provided under the Asylum Support Regulations 2000 (as amended).

iii)

Damages for breach of ECHR rights.

iv)

Costs”

The matter came before the Judge on 21 November 2024. Giving judgment on 7 January 2025, the Judge rejected contentions that the family should be paid more pursuant to section 17 of CA 1989 or Article 8 of the ECHR. He concluded, however, that the challenged assessment should be quashed on other grounds. The order dated 4 February 2025 giving effect to his judgment thus provided for the claim for judicial review of the assessment to be allowed and declared that the assessment was “unlawful and quashed for the reasons stated in the judgment”.

On 3 April 2025, the Council completed a reassessment as required by the Judge’s order. It was concluded that the financial support which the family received should not be changed.

By then, LR had issued an appellant’s notice. In section 9 of this, headed “What are you asking the Appeal Court to do?”, LR explained that she was asking for the Judge’s order to be varied to include the following:

“The Claimant’s challenge to the Defendant’s assessment under Grounds 1A and 1B is granted in addition to her claim being granted under Grounds 2 and 3.”

Three grounds of appeal were advanced. Ground 1 was to the effect that the Judge had misinterpreted paragraph 3 of schedule 3 to NIAA 2002. LR contended that the Judge had “wrongly concluded that this provision permitted the public authority … to restrict provision of support to [LR’s] mother and the family because she was an overstayer under immigration law”. Grounds 2 and 3 related to the impact of Article 8 of the ECHR. LR argued that the Judge had erred in concluding that Article 8 was not engaged on the facts (Ground 2) and that the Judge had misdirected himself in failing to find that Article 8 had been breached (Ground 3).

LR’s skeleton argument for the appeal developed these points. It maintained that the Judge’s erroneous interpretation of paragraph 3 of schedule 3 to NIAA 2002 “has a material impact not only on [LR’s] case but perhaps more importantly on all other future cases concerning migrant families including an overstayer parent with children”. As regards Article 8 of the ECHR, it was similarly said that the Judge’s errors “have a material impact not only on [LR’s] but also other future cases concerning migrant families including an overstayer with children”.

On 29 July 2025, Snowden LJ directed that LR’s application for permission to appeal should be listed to be heard on a “rolled-up” basis with the appeal to follow if permission was granted. However, on 12 August 2025 the Home Secretary determined that the family should be granted leave to remain in the United Kingdom. On 15 August 2025, the Council informed the Court that, the family having been granted leave to remain, “[t]hey are currently in the process of applying for the appropriate benefits and secure housing” and that the Council would “continue to provide support to the family until these arrangements are in place”.

In the circumstances, this appeal has become academic as between the parties. No one in the family is now an “overstayer”. The family is therefore no longer subject to the restriction imposed by paragraph 1 of schedule 3 to NIAA 2002 and no longer needs the variation to the Judge’s order claimed in the appellant’s notice to obtain assistance unfettered by that provision.

As I have mentioned, the relief identified in the claim form included “Damages for breach of ECHR rights”. However, neither in section 9 nor elsewhere in the appellant’s notice is there any mention of damages being sought. Further, LR’s skeleton argument for the appeal does not contend for damages. It is noteworthy, too, that LR has not challenged the further assessment which was carried out in compliance with the Judge’s order.

Guidance as to the position that an appellate Court should take in relation to an issue which has become academic is to be found in R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450 (“Salem”). In that case, Lord Slynn, with whom Lords Mackay, Jauncey, Steyn and Clyde agreed, said at 456-457:

“My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington … must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are 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 Salem, the House of Lords concluded that the appeal before it should not be proceeded with, the “unusual facts” of the case not seeming to provide a good basis for the matter to be raised as a general principle: see per Lord Slynn at 457.

The cases in which Lord Slynn’s observations have been applied include R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605, [2021] 1 WLR 2326 (“Dolan”). In that case, the Court of Appeal (Lord Burnett CJ, King LJ and Singh LJ) concluded that it should grant permission to claim judicial review in respect of a “discrete point of statutory construction” because “it would serve the public interest if this court itself were to decide that issue now rather than leave it, for example, to be raised potentially by way of defence in criminal proceedings in the magistrates’ court and no doubt on appeal from there to the higher courts”: see paragraph 41. In contrast, the Court considered that “the other aspects of the claim are academic and there is no good reason in the public interest for them to be considered”: paragraph 42.

In the present case, we took the view that we should not exercise our discretion to hear what had become an academic appeal. As was accepted by Mr Ranjiv Khubber, who appeared for LR with Ms Serena K Sekhon, the arguments relating to the application of Article 8 raised by Grounds 2 and 3 are too fact-specific for it to be appropriate for us to address them when the appeal has become academic.

In contrast, Ground 1 does not depend on the particular facts. As, however, Lord Slynn explained in Salem, the discretion to hear disputes which are academic between the parties is to be exercised “with caution”. Further, it is not evident that the issue raised by Ground 1 “will most likely need to be resolved in the near future” if not determined now (to use the words of Lord Slynn). In all the circumstances, it appeared to me that, should the issue need to be considered by this Court, that would be better done in a case where it is of significance to the parties.

I agree.

I also agree.