Refining the Salem discretion in immigration litigation: Court of Appeal declines to decide an academic challenge to the Ukraine Family Scheme

Introduction

This commentary analyzes the Court of Appeal’s decision in LR, R (On the Application Of) v Secretary of State for the Home Department [2025] EWCA Civ 373. The case arose from a challenge to the Secretary of State’s refusal to grant entry clearance under the Ukraine Family Scheme (UFS) to LR, an Afghan national and recognized refugee in Ukraine who applied from Germany. The Upper Tribunal (Immigration and Asylum Chamber) (UT) rejected LR’s judicial review, holding that the nationality-based distinction in the UFS was justified under article 14 of the European Convention on Human Rights (ECHR) and that article 8 was not engaged on the facts in relation to LR’s adult sibling relationship.

On appeal, the Court of Appeal confronted a threshold question: should it determine the merits where the case became academic because LR had, in the meantime, entered the UK “without permission” and was granted indefinite leave to remain (ILR) under the Afghan Relocations and Assistance Policy (ARAP) as an additional family member (AFM)? The court declined to exercise its exceptional discretion to decide an academic appeal, emphasizing the context-specific nature of discrimination justification in immigration policy and the discontinuation of the UFS. The decision thus refines the application of the Salem discretion in the public law immigration context.

Summary of the Judgment

The Court of Appeal (Lady Justice Laing giving the judgment, with Lord Justice Edis and Lord Justice Bean agreeing) dismissed the appeal as academic. LR’s grant of ILR under ARAP provided him with more than any success in the UFS litigation could have achieved. Applying the well-established approach in R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450 and R (SB) v Kensington and Chelsea Royal Borough Council (Practice Note) [2023] EWCA Civ 924, the court declined to exercise its exceptional discretion to decide a moot point.

The court’s principal reasons were:

• The central legal issue—how to justify differential treatment on the basis of nationality in immigration policy under article 14 ECHR—is intensely context-sensitive; any general pronouncement would be of limited assistance in future disputes (para 12).
• There was no wider public interest warranting a decision: the UFS had been discontinued in 2024; only one other similar case was known to be “in the pipeline” and it was not yet clear whether it would proceed in the First-tier Tribunal (FTT) or the UT (para 13).
• Should any case reach the UT, the court considered that the UT would likely follow its earlier decision in LR’s case; if necessary, the Court of Appeal could reconsider permission to appeal then (para 13).

Accordingly, the court did not address the merits of the appeal, including the UT’s reasoning on article 14 justification and article 8 family life.

Analysis

Precedents Cited and Their Influence

The judgment centrally relies on two authorities that delineate the Court of Appeal’s discretion to decide academic appeals:

• R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450. The House of Lords held that appellate courts generally do not decide academic cases but retain a discretion to do so where a point of law is of general public importance and the court is satisfied that it is in the public interest to resolve it. The discretion is exceptional and fact-sensitive.
• R (SB) v Kensington and Chelsea Royal Borough Council (Practice Note) [2023] EWCA Civ 924; [2024] 1 WLR 2613. The Court of Appeal emphasized factors relevant to the Salem discretion: whether the issue is likely to recur; whether it is capable of determination in a generalizable way without the need for a detailed factual matrix; the number of pending or anticipated cases; and the utility of the judgment for the broader administration of justice.

In applying these authorities, the court was guided by the specific immigration context. Lady Justice Laing highlighted that immigration law is a dense matrix of primary legislation, rules, and policy guidance, such that justification for differential treatment often turns on precise context (para 12). This diminished the utility of a general judgment in a moot case.

Legal Reasoning

The court’s reasoning unfolded in two stages:

1. Academic nature of the appeal. It was common ground that the appeal was academic. LR had obtained ILR under ARAP, achieving a superior immigration position than any UFS determination could confer (para 10). There was therefore no “live” controversy.
2. Whether to exercise the Salem discretion. The court considered the two issues that had led Lewis LJ to grant permission:
   • The general article 14 question. The question of how to approach justification for nationality-based discrimination in immigration is not amenable to abstract resolution. Given “a mass of” measures in the immigration field, the justification for any one measure is highly dependent on the policy’s objectives, context, and design. As a result, a generic ruling would be of “limited help” (para 12).
   • Likelihood of recurrence and practical utility. There was little utility in adjudication because the UFS had been discontinued in 2024. Only one other case was known, and even in that case the procedural route was uncertain (possible FTT jurisdiction over a human rights appeal). If and when a similar judicial review were revived, the UT would likely follow its prior judgment; any further appeal could be considered in due course (para 13).
   Taking these considerations together, the court declined to exercise its discretion to decide a moot case (para 14).

What the Court Did Not Decide

It is important to note what remains unresolved by the Court of Appeal:

• The merits of LR’s article 14 ECHR challenge to the UFS, including the structured approach to justification in immigration settings.
• The UT’s conclusion on article 8 ECHR (family life with an adult sibling) was not reopened; permission to appeal on that ground had been refused.
• The question whether a refusal under the UFS amounts to refusal of a “human rights claim” appealable to the FTT (alluded to via a similar case) remains undecided by this court.

Impact and Significance

Although the court refrained from making substantive law on discrimination and immigration policy, the judgment is significant in three respects:

1. Refined application of the Salem discretion in immigration cases. The court underscores that where a challenged policy has been discontinued and there is no evident pipeline of cases, the public interest in a general ruling on a fact-sensitive discrimination issue will be weak. The court is reluctant to issue near–advisory opinions, especially where article 14 justification turns on the distinctive aims and architecture of a specific scheme.
2. Signal on litigation strategy and “test cases.” For claimants and NGOs seeking authoritative guidance on equality issues in immigration rules, identifying a live, recurrent issue—and assembling evidence of a substantial pipeline—will be critical. Parallel routes to status (as here, ARAP) may moot proceedings, reducing the likelihood of appellate clarification of general legal principles.
3. Preservation of the UT’s status quo on the UFS. Because the Court of Appeal did not disturb the UT’s judgment, the UT’s reasoning—finding the nationality-based distinction in the UFS justified under article 14, and rejecting article 8 in the adult sibling context—remains the operative tribunal authority, albeit now of limited practical relevance given the discontinuation of the UFS in 2024.

Complex Concepts Simplified

• Academic appeal (mootness): An appeal is academic if, by the time it is heard, the court’s decision would have no practical effect on the parties’ rights or obligations—for example, because the claimant has already obtained the status sought through another route. Courts generally do not decide such appeals unless there is a compelling public interest in resolving a point of law that will recur.
• Salem discretion: Derived from ex p Salem, this is the court’s exceptional power to decide an academic appeal where the issue is of general public importance, likely to recur, and suitable for determination without a case-specific factual matrix. It is applied sparingly.
• Article 14 ECHR (non-discrimination): Prohibits discrimination in the enjoyment of ECHR rights on grounds such as nationality. It typically requires:
  1. a relevant Convention right falls within the ambit;
  2. the claimant is treated differently from others in an analogous situation;
  3. the difference is based on a protected ground (such as nationality); and
  4. if so, the state must justify the differential treatment by showing a legitimate aim and proportionality (often analyzed through whether the measure is rationally connected to the aim, necessary, and strikes a fair balance).
  In immigration, justification is often closely tied to operational and policy context.
• Article 8 ECHR (right to respect for private and family life): Protects family life but whether “family life” exists between adult siblings depends on evidence of dependency beyond normal emotional ties. The UT held LR’s sibling relationship did not reach that threshold on the facts (permission to appeal on this point was refused).
• Ukraine Family Scheme (UFS): A time-limited immigration route in Appendix Ukraine Scheme to the Immigration Rules, designed to facilitate the entry of specified family members of Ukrainian nationals (among others) displaced by the conflict. It was discontinued in 2024.
• ARAP and Additional Family Member (AFM): The Afghan Relocations and Assistance Policy provides relocation/leave to those who assisted the UK in Afghanistan and certain family members. An AFM is a broader family connection recognized in specific circumstances. LR ultimately obtained ILR as an AFM via ARAP.
• UT and FTT; jurisdictional route: The First-tier Tribunal (Immigration and Asylum Chamber) ordinarily hears statutory appeals, including some human rights appeals. Judicial review of immigration decisions lies to the UT. A live question (not decided here) is whether a UFS refusal can found a statutory human rights appeal to the FTT or must proceed via judicial review.

Contextual Observations

• Why context matters in article 14 challenges to immigration schemes: Immigration schemes are designed around particular crises, objectives, and resource constraints. Justifications for nationality-based criteria (e.g., administrability, targeted humanitarian relief, international comity) may be persuasive in one scheme but not in another, depending on design and evidence. The court’s reluctance to lay down general article 14 principles in a vacuum underlines that proportionality analyses hinge on detailed policy context and evidence.
• Discontinued policies and judicial economy: Where a scheme has ended, the utility of appellate guidance is diminished. Even if the underlying legal issue is important, courts will usually prefer to wait for a live case under a current policy.
• Practical guidance for litigants: Parties who seek clarification of broader legal principles should:
  • ensure the case remains live and not mooted by alternative grants of leave;
  • demonstrate the existence of a cohort of similar cases, or the ongoing operation of the policy;
  • identify a question capable of general resolution without detailed factual inquiry; and
  • be prepared to marshal evidence on the policy’s aims and operational constraints to support or contest justification.

Conclusion

The Court of Appeal’s decision in LR serves as a careful reaffirmation—and a refinement—of the Salem discretion in the immigration context. Where a claimant’s case has become academic and the impugned policy has been discontinued, the court will be slow to deliver general guidance on complex discrimination issues that are highly context-sensitive. Despite the apparent importance of the question—how to justify nationality-based distinctions in emergency immigration schemes—there was no live controversy, minimal pipeline relevance, and limited general utility.

The decision leaves intact the UT’s conclusions on the UFS but, more importantly, signals that appellate courts will avoid issuing advisory pronouncements on abstract proportionality frameworks in immigration equality claims. Future litigants seeking to test such principles must bring live, recurrent disputes, supported by a factual record capable of sustaining a substantive proportionality analysis. The judgment thus maintains doctrinal discipline around mootness while acknowledging the unique, fact-driven terrain of immigration law.