Case No: C4 / 2010 / 1805 
Neutral Citation Number: [2011] EWCA Civ 1821
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BEATSON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 13th May 2011

Before:

LORD JUSTICE RIX
LORD JUSTICE STANLEY BURNTON
and
LORD JUSTICE PATTEN
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Between:

	The QUEEN on the Application of Walker	
Appellant	
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Secretary of State for the Home 
Department and Anr	

Respondent	

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Mr R De Mello appeared on behalf of the Appellant.

Mr David Blundell (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment

Lord Justice Stanley Burnton:

1.	This is a hearing of the appeal of the claimant, a Jamaican  national, against the judgment of Beatson J dated 29 June 2010 in which he rejected her claim for judicial review of decisions of the Secretary of State.  A preliminary point arises for decision, namely whether, in the light of the offer made by the Secretary of State to the appellant, the court should treat this appeal as academic and refuse to determine the substance of the appeal.  

2.	The appellant is a Jamaican national.  She was 19 years of age at the time of the hearing before Beatson J and is now 19 or 20.  She came to this country in 2001.  In June 2005 she was given three years’ discretionary leave until she reached the age of 18.  Leave was given to her to live with her aunt.  She subsequently gave birth to a child and indeed has given birth to a second child.

3.	Just two days before her 18th birthday, that is to say, when her leave was about to expire, solicitors on her behalf made an application to the Secretary of State for an extension of leave.  The principal ground -- perhaps the only ground, really -- of her application was that she should be allowed to remain in this country in view of her Article 8 rights which would be unlawfully interfered with if she were required to leave with her children.  

4.	The solicitors used a form which is one of the prescribed forms but it lacked one of the documents which, according to the form, was to be enclosed; namely a photograph.  In due course, on the basis that the form did not comply with the requirements, the Secretary of State rejected the application as invalid.  It was however resubmitted with a photograph.  The Secretary of State refused her application.  Proceedings were begun on the basis that the Secretary of State wrongly treated her application as invalid.  He should have treated it as valid in which case the decision on the application would have been subject to appeal rights.  On 27 April of this year the Secretary of State, having regard to the generous comments made by the judge giving judgment, made an offer to make a further decision on the Article 8 application of the appellant and conceded that the decision be subject to appeal rights as an immigration decision.  That offer gave everything or virtually everything to the appellant that she could obtain if she were to succeed in this appeal since Beatson J held that the Secretary of State had rightly rejected the application as initially formulated without the photograph as being invalid in a clear judgment on the basis of the submissions made by counsel on both sides.  

5.	It is difficult to see that the appellant does have any interest in the continuation of this appeal.  Speaking for myself, I am not clear that she understands the full benefit of the offer made by the Secretary of State or the sanctions including costs sanctions that could be imposed if this litigation were to continue.  In cases such as this in my judgment the court should not hear an appeal unless the offer made by the Secretary of State is significantly disadvantageous or there are other cases pending which show that there is a point to be determined which will affect a significant number of other cases and therefore there is a public interest in the court deciding the point notwithstanding that there is an (inaudible) decision at first instance.  

6.	This is a case in which both sides are publicly funded, and there is a public interest in public funds being used only in disputes where there is a real issue between the parties.  Of course there are cases in which there is a public interest in the case which on the face of it involves a single claimant being decided because of its impact on others and for that purpose the appellant's solicitors have filed very late evidence suggesting that that is so.  Speaking for myself, having made inquiries of the Court of Appeal office and inquiries having been made of the Administrative Court office, I am not satisfied that this is a case which does need deciding by this court for that purpose.  As I said during the course of argument it seems that when a case is truly a test case or a case which has wider ramifications than those concerning the immediate parties, that should be made clear when the litigation is commenced and should not be raised at the last minute when it is possible for a case to be settled, particularly an appeal with a saving to public funds.

7.	In those circumstances I see no reason why this court should hear the appeal. It is said that there is a possibility of some significant prejudice on the part of the claimant if the appeal is not heard if she were to succeed in that she may be treated as an overstayer but, as I said during the course of argument, if the Secretary of State decides against her and this matter comes before an immigration judge, I have no  doubt that an immigration judge would give the fact that her application was made out of time only by reason of a failure to enclose a photograph the relatively slight weight that it deserves.  That is not to say however that the Article 8 claim is a meritorious claim, just that the defect in her application is not one which should be given significant weight in my judgment.

8.	What happened in this case regrettably is that the offer made on 27 April did not come to the attention of any judge until relatively recently.  In the normal course such an offer will be brought before either one of the supervising judges of cases in this category or to the presiding judge who is due to hear the case.  I would suggest without criticising either of the parties that it would be far better when such an offer is made or a question arises as to whether an appeal remains effective for there to be a letter to the Appeal Court Office making the point that that question has been raised and asking for the matter to go before a judge, and I would like to think that the parties in those circumstances would agree to a judge deciding or this court deciding on the papers about the need for any further costs being incurred whether or not the appeal should go forward.

9.	However, for the reasons I have given it seems to me that we should not decide this appeal, now academic.

Lord Justice Rix: 

10.	I agree.

Lord Justice Patten: 

11.	I also agree. 

Order: The Appeal has become academic