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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> LR, R (On the Application Of) v Secretary of State for the Home Department [2025] EWCA Civ 373 (03 April 2025) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/373.html Cite as: [2025] EWCA Civ 373

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Mr Justice Sheldon and Upper Tribunal Judge Jackson
JR-2023-LON-001622

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 April 2025

This judgment was handed down remotely at 11.00 am on 3 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

Lady Justice Elisabeth Laing:

Introduction

1. The Appellant ('LR') is a national of Afghanistan. His brother was in the Afghan army, and now has indefinite leave to remain in the United Kingdom under the Afghan Relocations and Assistance Policy ('ARAP').
2. LR went from Afghanistan to study in Ukraine when he was 18 (in 2015). He was recognised by the UNHCR as a refugee in Ukraine in 2021. After invasion of Ukraine in 2022, he went to Poland and then to Germany. He was given a visa in Germany, which he was in the process of renewing at the time of the hearing to which I refer in paragraph 3, below.
3. LR applied from Germany for entry clearance to the United Kingdom under the Ukraine Family Scheme and a related scheme ('the UFS'). The UFS is set out in Appendix Ukraine Scheme to the Immigration Rules (HC 395 as amended) ('the Rules') and an associated document which gives guidance to caseworkers making decisions under that Appendix to the Rules. The Secretary of State refused LR's application on the ground that he is not a national of Ukraine ('the Decision'). LR's brother also applied to the Ministry of Defence for LR to be able to move to the United Kingdom as his 'additional family member' ('AFM') under ARAP.
4. LR applied for judicial review of the Decision to the Upper Tribunal (Immigration and Asylum Chamber) ('the UT'). The UT gave permission to LR to apply for judicial review after an oral renewal hearing. After a substantive hearing, the UT, in short, held that the rules of the UFS resulted in differential treatment on the grounds of nationality which had to be justified under article 14 of the European Convention on Human Rights ('the ECHR'). It held that that differential treatment was justified, for the reasons it gave in paragraphs 51-59 of its judgment.
5. The UT went on to consider whether or not the refusal of entry clearance to A was a breach of article 8 of the ECHR. In paragraphs 65-83 it gave its reasons for concluding that the refusal did not breach article 8. The UT decided that the relationship between LR and his adult brother did not amount to family life for the purposes of article 8.
6. LR appealed to this court on five grounds. Lewis LJ gave permission to appeal on four grounds, observing that those grounds argued that the approach and conclusions of the UT were wrong. He said that 'On balance' he was satisfied that there was 'a compelling reason for the appeal to be heard given the importance of the issues raised (the correct approach to justification where there is differential treatment based on grounds of nationality in the field of immigration) and the appeal is said to affect a large number of other applicants in the same position'. In the light of that view, he did not consider it 'necessary or helpful' to express a view on the merits of those grounds.
7. He refused permission to appeal on the further ground of appeal which challenged the UT's conclusion on article 8.
8. This appeal was listed for hearing on 19 and 20 March 2025. LR was represented by Mr Straw KC and Ms Knorr. The Secretary of State was represented by Mr Holborn and Ms Sullivan. On the first day of the hearing of this appeal, we learned that LR, who is now in the United Kingdom, came here 'without permission'. Shortly before the hearing resumed on the second day, we were told that the Secretary of State had granted him indefinite leave to remain ('ILR') as an AFM under ARAP, pursuant to a notification of eligibility from the Ministry of Defence given to his brother on 23 September 2024.
9. We adjourned the hearing for a short time to enable the parties (among other things) to investigate whether there are, now, any similar cases in the pipeline. We were told they only know about one other case. The facts of that case are broadly similar to the facts of this case. There is a procedural difference, which is that while the applicant in that case has applied for judicial review of the decision to refuse her application under the UFS, she has also appealed against it to the First-tier Tribunal (Immigration and Asylum Chamber) ('the F-tT') on the grounds that the decision in her case amounted to the refusal of a human rights claim. Our understanding is that the F-tT has yet to decide whether it has jurisdiction over that appeal, and that, in the meantime, the application for judicial review has been stayed.
10. When the hearing resumed, we asked the parties whether or not they considered that the appeal was now academic. They agreed that it was. They were right to do so. LR has secured more from his recent grant of ILR than he could have got even if this appeal had succeeded. We asked them for their views about whether we should, nevertheless, hear the appeal. Mr Straw was neutral. Mr Holborn asked us to decide the appeal, despite the fact that the Secretary of State had won in the UT. We decided to finish hearing the oral argument. We told the parties that we would reserve our judgments, and that we would consider first, whether, in the light of their agreement that the appeal is now academic, we should nevertheless decide it.

Should this court decide this academic appeal?

11. The court has an exceptional discretion to decide an academic appeal. The cases in which this court has exercised that discretion are usually cases in which the appeal raised an issue of wider public importance which has been raised, or is likely to be raised, in other cases, and which there is therefore a wider public interest in a decision on the point of law which is at issue (see, for example, R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450; and R (SB) v Kensington and Chelsea Royal Borough Council Practice Note [2023] EWCA Civ 924; [2024] 1 WLR 2613). Various factors are relevant to the exercise of this discretion. They include the extent to which the legal issue for decision depends on the facts of the current case, or can be generalised to other facts.
12. I consider, first, the broader issue of principle identified by Lewis LJ. There is a mass of primary legislation, secondary legislation, rules and guidance in the immigration field. If a similar point recurs, while, very broadly, the outlines of the legal framework will be the same, the precise context will be different. The context in which an apparently discriminatory provision has been introduced will very much influence whether or not that particular discriminatory provision is justified. A decision on that broader point in this case, therefore, is likely to be of limited help in any future case about a different provision which is said to be discriminatory.
13. The significance of the second issue identified by Lewis LJ depends on whether there are any other cases in the pipeline in which the UFS is challenged. Despite indications in our papers that, when this policy was being developed, there were dozens of people in LR's position, it now seems that there is only one case in which this issue is being litigated, and that, initially, at least, its forum is the F-tT. It is likely to be months before there is a decision about whether the F-tT has jurisdiction over that appeal. It would only be if the F-tT decides that it does not have jurisdiction that the stay on the application for judicial review in the UT will be lifted. If that point is reached, the UT, we consider, is likely to follow the decision of the UT in this case. If necessary, once the UT has decided that second application for judicial review (if it ever does so), this court can consider, again, whether or not to give permission to appeal. Moreover, there are unlikely to be further cases which raise the issue in this case, because the UFS was discontinued in 2024.
14. For those brief reasons, I consider that this is not a case in which this court should exercise the exceptional discretion to hear an academic appeal.

Lord Justice Edis

15. I agree.

Lord Justice Bean

16. I also agree.