Integrated School Transformation: Article 92(6) “Reasonable Numbers” as a Mandatory Gatekeeper Despite Article 64(1) Support Duties

Case:
JR335 (A Minor) & Anor, Application for Judicial Review
Citation:
[2026] NICA 29
Court:
Court of Appeal in Northern Ireland
Date:
9 June 2026
Judge giving judgment:
Colton LJ (for Treacy LJ, Colton LJ and Scoffield J)

1. Introduction

This appeal concerned two pupils (each acting by a parent as next friend) who sought leave to judicially review the Minister and Department of Education’s refusal to approve development proposals for the transformation of two controlled schools to controlled integrated status under the Education Reform (Northern Ireland) Order 1989 (“the 1989 Order”). The Education Authority (“EA”) was an interested party.

The schools had secured the statutory parental ballot support and, in each case, departmental officials recommended approval. Nonetheless, the Minister refused both proposals on 7 January 2025, concluding that the statutory condition in Article 92(6) (likelihood of providing integrated education) could not be met because the schools had historically enrolled only 2–3% Catholic pupils and had not produced sufficient evidence that this would change post-transformation.

The core legal issue was the relationship between:

  • Article 64(1) of the 1989 Order (as amended by the Integrated Education Act (Northern Ireland) 2022) imposing an enhanced duty to “encourage, facilitate and support” integrated education; and
  • Article 92(6) of the 1989 Order, prohibiting approval unless it appears to the Department that the school “would be likely to provide integrated education”, which (by section 1(1) of the 2022 Act) includes “reasonable numbers of both Protestant and Roman Catholic” pupils.

2. Summary of the Judgment

  • The Court of Appeal dismissed both appeals and refused leave to apply for judicial review.
  • It held that Article 92(6) is a mandatory statutory “gatekeeper”: if the Minister is not satisfied that the transformed school would be likely to provide integrated education (including reasonable numbers of Protestant and Catholic pupils), he is obliged to refuse (or defer pending further evidence).
  • The enhanced Article 64(1) duty to support integrated education does not dilute Article 92(6), though it informs a flexible, non-rigid approach to “reasonable numbers”.
  • The Minister’s decisions were rational, adequately reasoned, and based on relevant material; no Wednesbury unreasonableness or public law error was arguable.
  • The Court diverged from the High Court on one point of principle: “unmet demand” for integrated education is not confined to demand from the under-represented “minority” religious community; a majority desire for integrated education (including among those identifying as neither Protestant nor Catholic) can constitute unmet demand.

3. Analysis

3.1 The statutory architecture and the “tension” the Court identified

The Court accepted that the post-2022 legislative landscape provides strong support for integrated education (including the amended duty in Article 64(1) and the detailed meaning of “support” in section 5 of the 2022 Act), reinforced in policy documents and in political commitments (including the Belfast (Good Friday) Agreement 1998).

However, it described an inherent tension:

  • Article 64(1) “pushes” towards approving transformation where there is parental support and/or evidenced demand; but
  • Article 92(6) “pulls” the other way where the Minister is not satisfied that reasonable numbers of both communities are likely to attend post-transformation.

Crucially, the Court treated the tension as a matter of legislative design rather than judicial choice: both provisions were amended by the 2022 Act, yet the legislature left Article 92(6) intact in its mandatory form. The Court therefore framed its role as applying the statutory scheme “as a cohesive whole”.

3.2 New/clarified principles from the Court’s reasoning

(a) Article 92(6) is a hard-edged constraint, not a factor to be balanced away

The Court endorsed the High Court’s interpretation that Article 92(6) is not something to be “balanced against” other merits. It is a statutory precondition: unless satisfied, the Minister is disempowered from approving transformation.

(b) “Reasonable numbers” is a matter of ministerial judgment, but must be evidence-based

The Court accepted the absence of a statutory definition and the need for flexibility. It also accepted that transformation can, in some cases, improve balance. But it rejected any approach that would allow approval on a “hope for the best” basis: the Minister may require evidence of practical steps and realistic prospects of increased minority-community enrolment.

(c) “Unmet demand” is broader than minority-community demand (Court’s divergence from the High Court)

The Court distinguished two separate inquiries:

  • Unmet demand (a policy/guidance criterion relevant to Article 64(1) support functions) can be evidenced by a majority parental desire for integrated education, even if that desire is predominantly from the religious “majority” in the area, and even if many families identify as “other/no religion”.
  • Article 92(6) likelihood remains focused on whether integrated education (including reasonable numbers of Protestant and Catholic pupils) is likely to be delivered after transformation—meaning, in practice on these facts, whether Catholic enrolment is likely to rise sufficiently.

This clarification matters because it prevents “unmet demand” being conceptually narrowed to demand from the currently under-represented community, while preserving Article 92(6) as a separate statutory hurdle.

3.3 Application to the two proposals: why the refusals survived review

(a) DP728 (Rathmore Primary School)

The Minister accepted sustainability and acknowledged Article 64(1), but concluded the school’s 2–3% Catholic enrolment could not be “reasonable numbers” given local demographics, and that the proposal lacked sufficient evidence of practical measures to increase Catholic enrolment.

The Court noted the officials’ critique that the proposal contained broad intentions rather than demonstrable steps (e.g. limited community engagement evidence, no expression of interest forms, little evidence of interim action during the proposal period). On that basis, the Minister’s forward-looking assessment (“likely” to provide integrated education) was within his lawful evaluative judgment.

(b) DP727 (Bangor Academy and Sixth Form College)

Again, the school was sustainable and oversubscribed, but Catholic enrolment remained 2–3%. The Minister did not accept that oversubscription implied likely increased Catholic attendance, particularly given alternative provision (Catholic maintained and other integrated options) and the proposal’s lack of specificity on how the disparity would be tackled.

The Court held it was not arguable that the Minister ignored the oversubscription evidence; rather, he weighed it and reached a rational conclusion.

3.4 Other grounds

Article 92(8): power to seek a further proposal

Article 92(8) provides a discretion to direct the EA to submit a further proposal. The Court agreed with the High Court that it creates no duty to do so. Schools may submit fresh proposals, and the Minister’s reasoning identified what needed strengthening.

Duties of inquiry

The Court upheld the High Court’s conclusion that the inquiry undertaken was sufficient and that the “high hurdle” of irrationality was not met.

Reasons

The Court agreed that adequate reasons were given, applying South Bucks District Council v Porter (No 2) [2004] UKHL 33. The Minister’s written decisions clearly identified the statutory tests and why the evidence did not satisfy Article 92(6).

4. Precedents Cited

4.1 JR264 [2023] NIKB 68

The High Court relied on Scoffield J’s statement in JR264 [2023] NIKB 68 emphasising the supervisory nature of judicial review: courts do not re-weigh factors, dictate depth of inquiry, or substitute merits judgments, unless the decision is unlawful or Wednesbury unreasonable. The Court of Appeal expressly agreed this reflected the proper approach, shaping its restraint in reviewing the Minister’s evaluative judgments under Article 92(6).

4.2 R (Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (Admin)

Cited (via the High Court’s discussion) on the limited circumstances in which public law imposes a duty to inquire further. The Court of Appeal endorsed the conclusion that extensive material had been assembled and considered; any contention that the Minister should have conducted further inquiries did not meet the irrationality threshold.

4.3 South Bucks District Council v Porter (No 2) [2004] UKHL 33

Applied to reject the reasons challenge: reasons need address the main issues and be intelligible to those familiar with the dispute. The Minister’s decisions, read with the departmental submissions, made clear why Article 92(6) was not satisfied.

5. Complex Concepts Simplified

  • Judicial review is not an appeal on the merits: the court checks legality, not whether it would have made the same decision.
  • Wednesbury unreasonableness: a very high threshold; the decision must be so unreasonable that no lawful decision-maker could have made it.
  • “Unmet demand” vs Article 92(6):
    • Unmet demand can be shown by parental/community desire for integrated education (not limited to the under-represented tradition).
    • Article 92(6) is different: it is a statutory condition that the school is likely to deliver integrated education, including reasonable numbers of Protestant and Catholic pupils.
  • “Reasonable numbers”: not fixed by statute; it is an evaluative judgment for the Minister, but must be grounded in evidence, demographics, and credible steps to change enrolment patterns.

6. Impact

  • For transformation proposals: ballot success and general integrated-education demand may be necessary but are not sufficient. Proposers should anticipate an evidence-heavy, forward-looking assessment focused on how reasonable numbers (especially minority tradition enrolment) will likely be achieved.
  • For the Department’s decision-making: the judgment endorses a flexible approach to “reasonable numbers” while confirming that Article 92(6) remains determinative. Decisions should clearly articulate (i) why current numbers are not “reasonable”, and (ii) why future change is or is not likely on the evidence.
  • For policy development: the Court noted (without deciding legality) a post-decision departmental position paper/statement proposing general expectations (e.g. initial minority-intake percentages, with exceptions). The Court’s analysis suggests such policy may assist transparency, but cannot override Article 92(6)’s statutory nature and case-by-case judgment.
  • For future litigation: challengers will struggle where the Minister has (a) identified the correct statutory tests, (b) engaged with the evidence, and (c) given coherent reasons. More promising challenges may arise where the Minister applies an unlawfully rigid numeric threshold, ignores relevant evidence of likely demographic change, or misconstrues the statutory definition of integrated education.

7. Conclusion

JR335 (A Minor) & Anor, Application for Judicial Review [2026] NICA 29 confirms that, notwithstanding strong statutory and policy encouragement for integrated education, Article 92(6) of the 1989 Order operates as a mandatory constraint: transformation cannot be approved unless the Minister is satisfied—on an evidence-based, forward-looking assessment—that the school is likely to deliver integrated education, including reasonable numbers of both Protestant and Roman Catholic pupils.

The Court’s key refinement is to separate unmet demand from the Article 92(6) likelihood test: demand for integrated education may be broad-based and not confined to the under-represented community, but approval still turns on whether the statutory definition—particularly the reasonable numbers element—is likely to be realised.