Ex p Salem [1999] 1 AC 450

A Libyan asylum seeker challenged the cessation of his income support after the Home Office recorded his claim as determined. By the time of the House of Lords hearing, he had been granted refugee status, rendering the appeal academic. The House declined to hear it.

Facts

The appellant, a Libyan national, arrived in the United Kingdom on 17 April 1997 and claimed asylum. He was granted temporary admission and awarded income support and related benefits under Regulation 70 of the Income Support (General) Regulations 1987. On 7 May 1997, the Home Office internally recorded that asylum had been refused and the claim determined, without notifying the appellant. Following further representations, the memorandum was re-dated 10 July 1997. The Benefits Agency was informed that the claim had been recorded as determined under Regulation 70(3A)(b), and benefits ceased. Further representations and an interview followed, and on 15 May 1998 the Secretary of State formally refused asylum.

Tucker J refused leave to move for judicial review. The Court of Appeal, by a majority, dismissed the substantive application. Before the appeal was heard in the House of Lords, the appellant was granted refugee status on 12 December 1998 following an appeal to a special adjudicator. Under Regulation 21ZA, back-payment of benefits fell due. The parties agreed that the appellant’s claims for income support and housing benefit would be satisfied, his reputation was vindicated, and there would be no order as to costs save legal aid taxation. No live issue remained between the parties.

Issues

The principal issue before the House was whether their Lordships should continue to hear an appeal which had become academic as between the parties, but which the appellant contended raised a question of general public importance concerning when an asylum claim is ‘determined’ by the Secretary of State for the purposes of Regulation 70(3A)(b) of the 1987 Regulations.

Arguments

Mr Blake QC, for the appellant, submitted that although there was no longer a live issue between the parties, the appeal should proceed because it raised a question of general public importance regarding the point at which an asylum claim is to be regarded as determined, such that an applicant ceases to be an asylum seeker.

Mr Pannick QC, for the Secretary of State, submitted on instructions from the Home Office and the Department of Health and Social Security that the question had arisen in only a few cases, and that the unusual facts of the present case did not provide a suitable vehicle for determining the matter as a general principle.

Judgment

Lord Slynn of Hadley, with whom Lord Mackay, Lord Jauncey, Lord Steyn and Lord Clyde agreed, reviewed the authorities on academic appeals. He cited Viscount Simon LC in Sun Life Assurance Company of Canada v Jervis [1944] AC 111:

I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way . . . I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.

He also cited Lord Bridge of Harwich in Ainsbury v Millington [1987] 1 WLR 379:

It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.

Lord Slynn observed that these cases concerned private law disputes. He noted that in public law cases, such as R v Board of Visitors of Dartmoor Prison, Ex parte Smith [1987] QB 106 and R v Secretary of State for the Home Department, Ex parte Abdi [1996] 1 WLR 298, the courts had heard appeals despite the absence of a continuing direct interest of the parties.

Lord Slynn accepted that in a cause involving a public authority on a question of public law, the House has a discretion to hear an appeal even where there is no longer a lis directly affecting the rights and obligations of the parties inter se. He held that Sun Life and Ainsbury v Millington must be read as limited to disputes concerning private law rights.

However, the discretion must be exercised with caution. Academic appeals should not be heard unless there is a good reason in the public interest, for example (but only by way of example) where 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.

Lord Slynn concluded that this was not such a case. First, although a question of statutory construction arose, the facts were not straightforward and in other cases the question of when a determination is made might depend on the precise factual context. The issues in the case itself were expressed to arise on its particular facts. Second, counsel for the Secretary of State informed the House that the question had arisen in only a few cases. The appeal had not been brought as a test case, and the unusual facts did not provide a good basis for resolving a general principle. Pursuant to the 1998 White Paper, the procedures might in any event be reconsidered.

The appeal was dismissed, with no order as to costs save legal aid taxation of the appellant’s costs.

Implications

The decision establishes that the House of Lords (and by extension appellate courts generally) retains a discretion to hear an academic appeal in public law cases involving a public authority, even where no live issue remains between the parties. This marks a qualification to the general rule derived from Sun Life and Ainsbury v Millington, which is now confined to private law disputes.

The discretion is to be exercised with caution. An academic public law appeal should not normally be heard unless there is a good reason in the public interest. Lord Slynn gave, by way of example only, the situation where a discrete point of statutory construction arises that does not depend on detailed facts, and where many similar cases exist or are anticipated. Where the issue is fact-sensitive, or where only a small number of comparable cases are known, the discretion is unlikely to be exercised in favour of hearing the appeal.

The case is frequently cited as the leading authority on when courts should entertain academic appeals in public law, and it is routinely invoked by parties seeking to persuade appellate courts either to hear or to decline academic matters. It matters to public authorities, practitioners in judicial review, and litigants whose cases are overtaken by events, as it sets out the framework within which appellate courts determine whether continued adjudication is justified.

Verdict: Appeal dismissed, with no order as to costs save legal aid taxation of the appellant’s costs. The House declined to exercise its discretion to hear the appeal, which had become academic following the grant of refugee status to the appellant.

Source: Ex p Salem [1999] 1 AC 450