Public Law Update, Part 1: Amenability, Article…

In a recent Landmark Chambers webinar, Fiona Scolding KC, Miranda Butler and Charles Bishop reviewed significant developments in public law procedure and practice in the previous months. This blog builds on the content of that webinar with the aim of providing practitioners with an update on recent case law and its implications.

Amenability to judicial review

In R (Shashikanth) v NHS Litigation Authority & NHS Commissioning Board [2024] EWCA Civ 1477, the appellant GP held two contracts with the local clinical commissioning group (CCG) which the CCG terminated for an alleged breach. Pursuant to regulation 82 of the National Health Service (General Medical Services Contracts) Regulations 2015, the Secretary of State referred the dispute to an adjudicator appointed by the Secretary of State. The adjudicator held that the CCG had been entitled to terminate the contracts. The appellant then sought judicial review of the adjudicator’s decision. The High Court refused the application, holding that the decision of the adjudicator was not amenable to judicial review.

On the GP’s appeal, the Court of Appeal overturned the High Court’s decision and held that the adjudicator’s decision was amenable to judicial review on the basis that the adjudicator was a body exercising a public function. Such decisions would always be fact-specific: R v Take-over Panel, ex parte Datafin Plc [1987] 1 QB 825. In the present case, the following factors were persuasive:

The Secretary of State’s power to appoint adjudicators to determine such disputes was statutory and regulated by statutory provisions. The starting point was that the power was a public function amenable to judicial review [§ 47].
Although the ultimate question to be determined by the adjudicator in this process is the scope of private law rights, this did not in itself indicate that the function being performed was not public [§ 48].
The adjudicator under the statutory framework is charged with a role akin to that of the courts, whose decisions are amenable in principle to judicial review [§ 48]. This was supported by the Court’s analysis of the statutory framework as a whole [§ 49].

The interaction between private law rights and judicial review was summarised as follows at § 50:

“The courts, on judicial review, may have to determine if the Secretary of State, or adjudicator, has erred in law by misinterpreting the general medical services contract. The fact that the contract gives rise to private law contractual rights does not alter the nature of the function that the Secretary of State, or adjudicator, is performing which is to determine the proper meaning of the arrangements governing the relationship between the contractor and the clinical commissioning group.”

There was thus nothing in the nature of the adjudicator’s decision or function that would rebut the presumption that their decision was amenable to judicial review.

‘No Recourse to Public Funds’ and Article 3

SAG and ors v Secretary of State for the Home Department [2024] EWHC 2984 (Admin) concerned the Secretary of State’s decision to impose a ‘no recourse to public funds’ (NRPF) condition on the leave to remain of three separate families. Each of those families applied for the lifting of the NRPF condition, and the Secretary of State required the claimants to provide evidence of their financial and accommodation situations. When that information was not immediately forthcoming, the Secretary of State refused the applications. The claimants challenged these decisions on the basis that they were left in destitution or at imminent risk of destitution, which they argued breached the positive ‘systems’ duty within Article 3 of the European Convention of Human Rights (ECHR).

The High Court held that the Secretary of State was “not entitled to adopt a “who blinks first” or “wait and see” approach, that is to refuse to remove an NRPF condition unless or until the applicant is rendered street homeless” [§ 77]. This was because Article 3 obligations applied equally to those at imminent risk of destitution, and where the failure to lift an NRPF condition resulted in the claimant being rendered destitution, there would be a breach of Article 3.

On the other hand, the Court held at § 78-79:

“…the Secretary of State is entitled to seek evidence in support of the application to determine whether the applicant really is at imminent risk of destitution. The mere fact that a third-party says that they are unwilling to continue to provide support does not necessarily mean that there is a risk they will withdraw support in the absence of an alternative source of support. It is for the Secretary of State to determine whether there is an imminent risk of destitution, based on all the evidence (including any evidence provided in response to requests for further information). The court will only intervene if the Secretary of State’s decision is irrational or otherwise unlawful.

79. There is not therefore anything unlawful or irrational or irrelevant in asking for further evidence from the third-party supporter, albeit they cannot be forced to provide evidence. If they choose not to provide evidence then a decision must be made on such evidence as is available, as the guidance makes clear.”

On the facts of the case, there had been a breach of Article 3. The Secretary of State’s own evidence was that the average time taken to decide applications to lift NRPF conditions was then weeks. This was “far too long to wait” [§ 99] where there was an immediate risk of the applicants being destitute, and demonstrated that the Secretary of State had failed to put in place “a sufficient system that reduces the risk [of destitution] as far as practically and proportionately possible” [§ 102].

High Court or Upper Tribunal?

In R (ABW) v Secretary of State for the Home Department [2024] EWHC 3205 (Admin), the High Court considered the novel question of whether challenges to Public Order Disqualification Decisions under section 63 of the Nationality and Borders Act 2022 (NABA) should be brought in the Administrative Division of the High Court or the Upper Tribunal (Immigration and Asylum Chamber).

This question is addressed in the Lady Justice’s Direction on Transfer of Judicial Review (“the Direction”), which states that a challenge to a decision made under the Immigration Acts or to any instrument relating to leave to remain in or enter the UK should be brought in the Upper Tribunal. ‘Immigration Acts’ is defined broadly and includes NABA. However, section 63 NABA – the source of the decision under challenge – confers on the Secretary of State the power to exclude a person from receiving support under the National Referral Mechanism for victims of trafficking on the grounds that they pose a threat to public order. It was not a decision concerning leave to remain or enter.

The High Court (Dove J) took a purposive approach to interpreting the Direction, concluding that the decision under challenge did not have to be brought in the Upper Tribunal. The relevant question was the specialist expertise of that tribunal, namely, leave to remain or enter the UK. Instead of treating all challenges brought under the Immigration Acts as immigration decisions, the proper approach was to look at the substance of the decision and consider whether it properly fell within the scope of the Direction.

A matter of urgency

R (Ebou Jasseh) v Secretary of State for the Home Department [2025] EWHC 47 (Admin) concerned a serious foreign national offender who had made successive attempts in late 2024 to prevent his deportation. These failed and removal directions were set on 9 January 2025. Very shortly beforehand, the claimant applied for interim relief. On 7 January 2025, the Government Legal Department wrote the Administrative Court by way of an e-mail headed ‘Strictly confidential’ regarding the claimant’s case and filing multiple bundles of evidence that they wished the Court to consider. The claimant was not copied in this e-mail. The e-mail also contained details of the departure time of the charter flight on which the claimant would be removed.

Chamberlain J was critical of the defendant’s approach and reminded the parties of the importance of compliance with CPR 39.8(1). This provides that any communication between a party to the proceedings and the Court must be disclosed to the other party or their representatives, except where limited exceptions apply. The rule was “plainly contravened” by the defendant in the present case. Significantly, the Court clarified that any future communications sent in breach of CPR 39.8(1) should be returned to the sender by the Administrative Court Office and referred to a judge to consider whether sanctions should be imposed, or other directions given.

This article is written by Miranda Butler.

You can watch the full webinar recording here.