Ellis v Secretary of State for Justice: Re-Affirming the “Very Essence” Test for Prisoners’ Right to Education and Curbing Rolling Judicial Review

1. Introduction

In Ellis, R (On the Application Of) v Secretary of State for Justice ([2025] EWCA Civ 831) the Court of Appeal (Civil Division) considered whether restrictions placed on a long-term prisoner’s access to higher-education facilities amounted to a violation of Article 2 of Protocol 1 to the European Convention on Human Rights (A2P1 – the right to education). The claimant, Mr Ellis, had already succeeded below in challenging the withdrawal of his Chromebook but failed in his broader, “generalised” complaint that prison arrangements systemically impeded his studies. The appeal focused exclusively on that broader challenge and on the judge’s refusal to allow late amendments that would have converted the case into a “rolling” review of subsequent events.

The Court of Appeal (Bean LJ, with whom Nugee LJ and Cobb J agreed) dismissed the appeal, thereby:

Confirming that only interferences which “impair the very essence” of the right will breach A2P1, especially in the prison context.
Emphasising States’ wide margin of appreciation in regulating educational access for prisoners where security is engaged.
Re-asserting that judicial review must not be transformed into an on-going monitoring exercise; post-issue events should normally be pursued, if at all, in a fresh claim.

2. Summary of the Judgment

The appeal had two limbs:

Amendment / Rolling Review Issue – The Court upheld Foster J’s refusal to admit six months of post-issue evidence (and later events at a different prison). The Administrative Court is not a continuous regulator; Dolan and P v Essex were applied.
Substantive A2P1 Issue – The Court accepted that Mr Ellis faced “operational impediments” (delays, re-routing of materials, indirect internet access) but found these were incidental to a legitimate prison security regime and did not reach the high threshold of denying “effective access” to education. The Mehmet Arslan decision, heavily relied upon by the appellant, was distinguished.

Consequently, the Court dismissed the appeal and reaffirmed that minor or even serious inconveniences do not breach A2P1 unless they nullify the substance of the right.

3. Analysis

3.1 Precedents Cited and Their Influence

Belgian Linguistics Case (1968) – Provided the historic articulation that A2P1 guarantees access only to the system of education already established by the State, not a bespoke or superior education.
A v Lord Grey School [2006] 2 AC 363 – Lord Bingham’s “effective access” formulation was central; the Court of Appeal treated it as the domestic encapsulation of Strasbourg jurisprudence.
A v Essex CC [2011] 1 AC 280 – Illustrated that even 18 months of near-total educational deprivation for a severely disabled child did not meet the “very essence” threshold; cited by analogy.
Mehmet Arslan & Bingöl v Turkey (2019) – Lifers barred from all computer/internet access. Cited by the appellant; the Court distinguished it on the basis that the ban there was absolute and struck the core of ongoing university studies.
Kalda v Estonia (2016) & Jankovskis v Lithuania (2017) – Article 10 cases on internet access. The Court held that their proportionality analysis under Art 10 could not be transplanted wholesale to A2P1.
Velev v Bulgaria (2014) – Quoted for the principle that existing prison educational opportunities must not be subjected to “arbitrary and unreasonable” restrictions; the Court found the restrictions here were neither.

3.2 Legal Reasoning

Bean LJ’s reasoning proceeds in two main steps:

Characterisation of the right – A2P1 is “weak and deliberately so”. It guarantees only non-discriminatory and effective access to whatever educational system the State already provides. It does not:
- Require the State to fund or create higher-education courses of a prisoner’s choosing.
- Guarantee a frictionless logistical experience.
Threshold Test – Restrictions must impair the “very essence” of the right. That prerequisite was not met because:
- Mr Ellis ultimately obtained his MSc degree.
- He enjoyed structured support (distance-learning coordinator, printing service, virtual campus access, tutor phone/video calls, and later a restored Chromebook).
- Interruptions were temporary and largely attributable to routine security procedures or mis-addressed parcels.
- Security policies (PSI 25/2014) were neither arbitrary nor disproportionate; they were foreseeable and legitimate.

On the amendment issue, the Court applied R (Dolan) and Munby J’s dictum in P v Essex to reiterate that judicial review is designed to challenge decisions, not to supervise ongoing service-delivery. Allowing serial amendments prejudices procedural fairness and judicial economy.

3.3 Likely Impact of the Judgment

Clarifies the A2P1 Threshold for Prisoners – The ruling provides authoritative domestic confirmation that only measures nullifying the “very essence” of a prisoner’s access to education will breach A2P1. Lesser setbacks, even cumulatively, will not suffice.
Security Policies Upheld – Prison governors can rely on the decision as reassurance that calibrated IT restrictions are Convention-compliant so long as some reasonable educational pathway remains.
Rolling Judicial Review Discouraged – Claimants must plead discrete, time-bounded grounds; post-issue events are presumptively for separate claims. This may stem the tide of “ever-expanding” public law litigation.
Resource Allocation Arguments Marginalised – Attempts to re-characterise resource inadequacy as a human-rights violation face a steep uphill task unless the deprivation is near-total.
Guidance for Higher-Education Providers – Universities partnering with prisons should design courses that assume indirect or delayed internet access, aligning with the Court’s realistic approach.

4. Complex Concepts Simplified

A2P1 (Article 2, Protocol 1) – The ECHR provision that no one shall be denied the right to education. Unlike Articles 8-11, it does not list specific “legitimate aims” for restriction, but States may regulate access provided they do not destroy the core of the right.
“Very Essence” Test – A judicial shorthand for asking whether a restriction annihilates the substance of the right. Minor or temporary interferences generally fail this test.
Margin of Appreciation – The leeway Strasbourg affords States to balance Convention rights with domestic priorities (e.g., prison security). Wider in sensitive or resource-intensive fields.
Rolling Judicial Review – A litigation strategy where claimants continually add fresh complaints as circumstances evolve. The courts discourage it because it undermines finality and strains resources.
Virtual Campus (VC2) – A closed, prison-intranet platform providing controlled digital learning materials without open internet exposure.

5. Conclusion

Ellis v Secretary of State for Justice cements two pivotal propositions in English public law:

The State breaches A2P1 only when its actions (or inactions) render access to existing educational provision effectively non-existent; inconvenience or delay, even considerable, is insufficient.
The Administrative Court is not a roving inspectorate. Attempts to graft fresh factual developments onto extant claims will usually be rebuffed, forcing litigants to initiate new proceedings.

The decision thereby protects legitimate security imperatives within prisons while preserving the fundamental—yet circumscribed—right of inmates to pursue education. For practitioners, it offers a clear roadmap: focus on demonstrable deprivation of core educational access and avoid sprawling, time-fluid pleadings. For policymakers and prison governors, it validates structured, risk-based ICT controls so long as meaningful study routes remain open. Ultimately, the Court of Appeal has reinforced a pragmatic, proportionate balance between prisoner rehabilitation, public safety, and judicial efficiency.