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RA & Anor, R (On the Application Of) v Secretary of State for Foreign, Commonwealth and Development Affairs
Factual and Procedural Background
These appeals arise from orders made in the context of two UK Government relocation policies for persons connected with UK operations in Afghanistan: the Afghan Relocations and Assistance Policy (ARAP) and the Afghanistan Response Route (ARR). A Ministry of Defence dataset containing personal information of ARAP applicants was compromised in a data breach. A super-injunction was obtained in September 2023 preventing disclosure of the breach and the injunction itself; it remained in force until July 2025. The breach and secret litigation led to extensive use of CLOSED procedures and Special Advocates in Administrative Court litigation. Three contested orders were made: two general directions imposed in two judicial review matters (referred to in the opinion as the ARAP-related cases) and a mandatory order made in proceedings listed "In the matter of the Secretary of State for Defence" concerning revision, use and dissemination of the ARR policy. The challenged orders required, among other things, senior civil‑servant witness statements to support any application to vary directions in ARAP-related CLOSED cases and imposed obligations on Ministers to revise and circulate the ARR policy to the Special Advocates' Support Office (SASO) and the court. The appellants are the relevant Secretaries of State; the Government Department primarily responsible for ARAP was the Ministry of Defence. Each appeal was allowed by the court below.
Legal Issues Presented
- Whether a judge presiding over particular Administrative Court proceedings had power to make general directions or mandatory orders that imposed obligations applicable to other, separate proceedings (including proceedings not yet commenced) or to non‑parties.
- Whether it was lawful or proportionate to require senior civil‑servant witness statements to support any application to vary directions in the class of ARAP-related CLOSED cases.
- Whether the court exceeded constitutional boundaries by making a mandatory order that effectively required Ministers to adopt specific policy changes and to circulate policies to SASO and the Judge in Charge of the Administrative Court.
- Whether the procedure by which the court made the orders (including lack of advance notice) was procedurally fair.
Arguments of the Parties
Appellants' Arguments
- The judge lacked jurisdiction to make orders binding in other proceedings, future proceedings or affecting non‑parties; his powers extended only to the cases before him.
- The direction requiring a witness statement from a senior official for any application to vary directions was excessively wide and onerous, burdensome in CLOSED proceedings, and unnecessary for short or uncontroversial extensions.
- The mandatory ARR policy order improperly intruded into executive policy‑making, bound persons not before the court, and required dissemination to SASO though SASO has no institutional role in receiving policy in the absence of specific CLOSED appointments.
- The appellants were not given adequate notice or opportunity to address the specific orders the judge intended to make, rendering the process unfair.
Other Parties' and Advocate's Arguments
- Court management powers (CPR and inherent jurisdiction) and the need to protect claimants in the exceptional closed‑procedure context justified stringent directions; the judge was concerned about repeated failures of candour by Department officials.
- It was open to the judge to adopt measures to ensure candid explanations in future applications and to protect the fairness of CLOSED proceedings; some respondents supported general directions.
- The Advocate to the Court submitted that the ARR order risked blurring the separation of powers, that SASO is an organ that supports individual Special Advocates rather than acting as a hub for policy dissemination, and that the appellants had not been afforded a fair opportunity to address the specific orders.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Case: Company A v Company D and others [2025] EWHC 1806 (Admin) | Context: the super‑injunction preventing disclosure of the data breach (factual background). | Used to explain why proceedings proceeded in CLOSED form and why strict safeguards were considered necessary. |
| Case: R (CX1 and MP1) v Secretary of State for Defence [2024] EWHC (Admin) 892 ("CX1") | Held that a policy excluding certain individuals at equivalent risk was unlawful; directed reconsideration of identifying highest risk group. | Foundational to the judge's concern that ARR policy had not been amended in line with CX1; used to justify orders regarding the ARR policy (later set aside). |
| Case: R (QP1) v Secretary of State for Defence [2024] EWHC 1905; [2025] EWCA Civ 825 | Application of revised approach to complex cases (affirmed on appeal). | Referenced as part of the development of the ARR approach to complex cases. |
| Case: Connelly v DPP [1964] AC 1254; [1964] 2 All ER 401; [1964] 2 WLR 1145 | Inherent jurisdiction: courts possess powers necessary to act effectively within their jurisdiction to enforce practice and prevent abuse of process. | Relied upon by appellants as authority for inherent powers; the court noted its limited relevance and observed that Connelly did not establish a power to make the type of prospective, cross‑case orders at issue. |
| Case: Raja v Van Hoogstraten (No 9); Tombstone v Raja and Another [2008] EWCA Civ 1444; [2009] 1 WLR 1143 | High Court has inherent power to supplement the CPR, but not to cut across the scheme of the Rules. | Referred to for the proposition that inherent powers have limits; the court found no precedent for orders that directly affect other judges' cases prospectively. |
| Case: Serious Fraud Office v Litigation Capital Ltd [2020] EWHC 1280 (Comm) | Obiter: High Court may make notification and barring orders affecting non‑parties in particular contexts. | Noted by the court as an example of orders affecting non‑parties, but distinguished from the present orders which were broader and prospective. |
| Case: Home Office v Tariq [2011] UKSC 35; [2011] IRLR 843; [2012] 1 AC 452; [2012] 1 All ER 58 | Description of the role and structure of Special Advocates and SASO. | Relied on by the Advocate to the Court to argue SASO's limited institutional role; the court accepted concerns about treating SASO as a general hub for policy dissemination. |
| Case: Society of Lloyd's v Jaffray [2002] EWCA Civ 1101 | Example of group litigation orders and case‑management across related claims. | Used to illustrate that group litigation frameworks exist for multi‑case management, unlike the orders made here. |
| Case: Serious Fraud Office & Ors v Litigation Capital Ltd & Ors [2021] EWHC 1272 (Comm) | Example of complex case management and orders in multi‑party litigation. | Referenced as illustration; court distinguished those frameworks from the present ad hoc, prospective orders. |
| Case: Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47; [2024] AC 983; [2024] 2 WLR 45; [2024] 2 All ER 431 | Examples where orders can bind newcomers/non‑parties (traveller injunctions) in appropriate contexts. | Noted that there are circumstances in which orders can affect non‑parties, but no precedent supports the general prospective orders made here. |
| Case: R (Imam) v London Borough of Croydon [2023] UKSC 45; [2025] AC 335; [2023] 3 WLR 1178; [2024] 2 All ER 93 | Guidance on choice of remedies in public law: contrast between quashing and mandatory orders and respect for separation of powers. | Applied as a principle: mandatory orders have greater impact on executive functions and require careful consideration; helped to justify setting aside the mandatory ARR order. |
| Case: R v Secretary of State for the Environment, Ex p Nottinghamshire County Council [1986] AC 240; [1986] 2 WLR 1; [1986] 1 All ER 199 | Constitutional reminder of limits on judicial power in judicial review. | Quoted to underscore the need for the judiciary to observe constitutional limits when exercising judicial review remedies. |
| Case: R (ECPAT UK) v Kent County Council [2023] EWHC 2199 (Admin) | Describes the ordinary position that a court generally decides relief once and is then functus officio. | Referred to in discussing limits on extending proceedings as a vehicle for broader orders. |
Court's Reasoning and Analysis
The court began by emphasising the exceptional factual matrix: a damaging data breach, a long‑running super‑injunction and the resulting extensive use of CLOSED procedures with Special Advocates. Those features explained the judge's strong concern about repeated failures of candour by Ministry officials and his wish to ensure candid explanations in future applications to vary directions.
On legal principle the court reviewed the scope of CPR case‑management powers and the inherent jurisdiction. It noted that, although courts may make orders affecting non‑parties in certain frameworks and may produce guidance or practice directions, there is no established power for a judge in one case to make prospective orders intended to have direct legal effect in other cases before other judges or in proceedings not yet commenced. The court emphasised the constitutional separation of powers and the special caution required before granting mandatory relief that effectively dictates executive policy (citing the Imam guidance on remedies).
Applying these principles, the court concluded that the general direction requiring senior‑official witness statements across the defined class of ARAP cases exceeded the judge's case‑management powers because it purported to operate beyond the cases before him and to bind other proceedings and non‑parties. The court allowed the appeals on that ground (Ground 1) and set the general directions aside. It observed that, even if such cross‑case measures could in theory be made, a narrower approach (a discrete order publicised to responsible Ministers and other judges) would have been preferable.
As to the ARR mandatory order, the court held that requiring Ministers to prepare, adopt and operate specific policy wording and to circulate internal policy to SASO and the Judge in Charge crossed the constitutional boundary between judiciary and executive. The court found procedural unfairness in the lack of advance notice of the orders and accepted the submissions concerning SASO's institutional role. The appeal against the ARR order succeeded on Grounds 2, 4, 5 and 8 and that order was set aside.
Holding and Implications
Holding: The court allowed each appeal and set aside the challenged orders. The core rulings were:
- ALLOWED — The general direction imposed in the ARAP‑related cases (requiring senior civil‑servant witness statements to support any application to vary directions across the defined class of cases) was beyond the judge's proper case‑management powers and is set aside.
- ALLOWED — The mandatory ARR order requiring Ministers to amend, adopt and circulate policy text and to serve it on SASO and the Judge in Charge exceeded judicial competence, encroached on executive functions and was procedurally unfair; that order is set aside.
Implications: The direct effects are that the specific general directions and the ARR mandatory order are quashed and are no longer operative. The court emphasised constitutional limits on judges making orders that amount to dictating executive policy and noted alternative, narrower measures that could achieve the judge's legitimate objectives (for example, discrete orders or communicating closed judicial concerns directly to responsible Ministers and other judges). The opinion does not purport to establish a broad new precedent permitting cross‑case prospective orders; instead it reinforces the limits on such judicial intervention.
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