CA-2025-001983 - [2025] EWCA Civ 1311

It is convenient to take the third and fourth issues together. Ms Ammori needs, and is now (belatedly) applying for, an extension of time for making an application pursuant to CPR 3.1(2)(a). This is not a case where Ms Ammori has to apply for relief from sanctions under CPR 3.9. Nonetheless, the Court is required to approach applications for extensions of time in such circumstances in the same way and with same rigorous approach: see per Moore-Bick LJ, with whom the other members of the Court agreed, in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472 at [34] and [36] and see the observations of Carr LJ (as she then was) in R (Good Law Project Ltd) v Secretary of State for Health and Social Care [2022] EWCA Civ 355; [2022] 1 WLR 2339 at [78]. Consequently, the Court will need to have regard to the seriousness and significance of the failure to apply within time, the reasons for the failure to do so and all the circumstances of the case.

First, the failure here is a serious one. The purpose of CPR 54 (dealing with judicial review claims) and CPR 52.8 is to ensure that such claims are brought promptly. CPR 54.5 provides that a claim must be brought promptly and in any event not later than three months after the grounds of claim first arose. It is well established that there is a need for prompt action in such cases. Decisions in public law affect not only the claimant and the public body concerned, but often affect third parties and the wider public interest. CPR 52.8 reflects that underlying policy. It seeks to ensure that any challenge to the refusal of leave to apply for judicial review is itself made promptly. That is to ensure that the claimant, the public body, third parties and the wider public know if there is to be a challenge and on what grounds. The requirement that any application for permission be brought within seven days of the decision of the judge reflects that underlying policy. Here, the application should have been made within seven days of the 30 July 2027. It was not in fact made for over a month.

Fortunately, however, the consequences of the delay on this occasion have been minimised for reasons unconnected with Ms Ammori. As it happens, Underhill LJ granted permission on the appeal on the preliminary issue and the appeal was listed to be heard on 25 September 2025. Lewis LJ ordered that Ms Ammori’s application for permission be adjourned to an oral hearing and to be heard with the appeal listed for 25 September 2025 if possible. The Court was in fact able on 25 September both to hear submissions on the appeal and the application for permission to appeal. It was also able to fix a timetable for the application for an extension of time which has enabled judgment to be given in this case swiftly. As a result, any decision of this Court to grant permission in relation to one or more of the grounds of claim should not affect the substantive hearing of the claim in the High Court which is listed for late November. We would hope, and expect, that that hearing would be able to deal with any ground of claim for which we grant permission. Different considerations may well arise if the consequences of the grant of a late application were to result in the adjournment of the substantive hearing of a claim for judicial review.

Secondly, this is not a case where the representatives failed to act in accordance with clear rules or case law. They believed, albeit mistakenly, that an application for permission could be made once the Secretary of State had applied for permission to appeal on the preliminary issue. The relevant provisions of the CPR are not clear and there is, so far as we are aware, no pre-existing case law on the issue that arose. The position in future cases will, of course, be different as it is now clear from this judgment that any application for permission to appeal against a decision refusing permission to apply for judicial review, or refusing permission for certain grounds of claim, must be the subject of an application made in accordance with CPR 52.8.

Thirdly, there are particular circumstances of this case which make it desirable that all arguable grounds of claim are considered and dealt with together as soon as reasonably possible. The issue is one that has been the subject of much public interest. Furthermore, we are told that a large number of persons have been arrested for showing support for Palestine Action. There is much to be said for ensuring an authoritative judgment of the High Court on whether or not the order adding Palestine Action to the list of proscribed organisations is lawful. It is sensible for all arguable grounds to be considered as soon as possible.

For those reasons we grant Ms Ammori’s application for an extension of time to appeal.

We consider next whether to grant permission on any of the four grounds, i.e. grounds 1, 5, 6 and 7. We emphasise that we are not deciding whether any of the grounds would succeed or fail when considered at the hearing. At this stage we are simply considering whether to grant permission on a particular ground. If so, that ground would then need to be the subject of legal argument and consideration of the evidence at a full hearing of the claim in order to determine whether or not the ground was in fact made out.

We deal first with grounds 5 and 6, where Mr Husain made oral submissions on behalf of Ms Ammori. Ground 5 is that the Secretary of State failed to have regard to relevant considerations. Mr Husain made it clear, orally, that Ms Ammori is only seeking to rely on the eight considerations set out in paragraph 82 of the amended statements of facts and grounds and not on other aspects of ground 5 as set out in the pleadings. He submitted that this ground involved consideration of domestic public law principles and could not, or not simply, be subsumed into the assessment of whether the Order was a proportionate interference with a Convention right granted by Article 9 or 10.

We agree. There is a separate domestic law issue as to whether any or all of the matters identified in paragraph 82 of the amended statement of facts and grounds are relevant considerations in the sense that that term is used in public law. That is, there is question of whether it is a mandatory consideration such that it would be unlawful for the Secretary of State not to have regard to it in the way described by the Supreme Court in R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] PTSR 190 at [116] to [121] and see also Keep Chiswell Green v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 958 at [82]. That will require legal argument and possibly consideration of evidence.

Similarly, ground 6 is an allegation that the Secretary of State failed to follow her published policy which prescribes that certain factors may be taken into account. Whether the Secretary of State has complied with her policy is not simply a question of proportionality which can be considered when considering the allegations of breach of Convention rights. It concerns principles of domestic public law and will require consideration of legal argument and evidence.

For those reasons we would grant permission to apply for judicial review (instead of granting permission to appeal) on grounds 5, limited to the matters raised in paragraph 82 of the amended statement of facts and grounds, and ground 6.

We deal next with grounds 1 and 7 where Ms Ní Ghrálaigh KC made oral submissions on behalf of Ms Ammori. Ground 1 is an allegation that the power to add Palestine Action to the list of proscribed organisations was used for an improper purpose. In oral submissions, Ms Ghrálaigh submitted that the power could only be used where the conduct of the organisation attained a high level of severity.

A power will be used for an improper purpose where it is used for a purpose not authorised by the statute which conferred it. The power here was used for the purpose set out by the statute. Section 3 of the Act provides that the Secretary of State may exercise her powers in connection with an organisation concerned with terrorism as defined in section 3(5) and section 1 of the Act. That will include, but is not limited to, action which involves serious damage to property. The judge was correct to hold that was what the Secretary of State had done. She had not sought to use her power for a purpose which was not one of the purposes of the Act. The contrary was not arguable. We agree. We refuse permission to appeal in relation to ground 1.

Ground 7 concerns a claim that the Secretary of State breached section 149 of the Equality Act 2010 (“the 2010 Act”). That section requires a public authority to have due regard to the need, amongst other things, to foster good relations between those who share a protected characteristic and those who do not (section 149(1)(c)). Ms Ní Ghrálaigh also submitted that the advancement of equality of opportunity between those who shared a relevant protected characteristics and those who did not could conceivably arise in this case.

Protected characteristics are defined in section 4 of the 2010 Act. They include, but are not limited to, race and religion or belief. Ms Ní Ghrálaigh submitted that the Secretary of State had failed to have due regard to members of the Palestinian community in Britain, and explained in oral argument that this community engaged the protected characteristic of race, which includes nationality and ethnic origin. She drew attention to the witness statements of Dr Shalan, who described amongst other things, her perception of the effect of the proscription of Palestine Action on the Palestine community in Britain, and Ms Dabbagh who describes the impact on her, and others, on Palestinians in Britain. Further, Ms Ní Ghrálaigh reminded us that not all persons of Palestinian origin are Muslim. Some are Christians, of other faiths or of no faith. The fact that the Secretary of State may have considered the position of Muslims in Britain did not, therefore, constitute consideration of all Palestinians.

The principles governing section 149 of the 2010 Act are well-established. They have been expressed in different ways in different cases. For present purposes, it is sufficient to note that, in broad terms, the duty under section 149 is a duty to have due regard to the specified matters not a duty to achieve a specific result. The duty is one of substance, not form, and the real issue is whether the relevant public authority has, in substance, had regard to the relevant matters, taking into account the nature of the decision and the public authority's reasoning (see, e.g., R (Baker) v Secretary of State for Communities and Local Government and another (Equality and Human Rights Commission intervening) [2008] EWCA Civ 141[2009] PTSR 809 at [36]–[37], and R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345;[2014] Eq LR 60, at [25]). As Lord Neuberger of Abbotsbury PSC observed at [74] of his judgment in Hotak v Southwark London Borough Council (Equality and Human Rights Commission intervening) [2015] UKSC 30; [2015] PTSR 1189 "the weight and extent of the duty are highly fact-sensitive and dependent on individual judgment". Further, it may be obvious from the subject matter of the decision that the decision-maker has had due regard to the relevant equality considerations.

The Judge correctly found that this ground was not arguable once regard was had to the material before the Secretary of State. As he noted at [92], the submissions made to the Secretary of State before she took the decision referred to the risk of effects on specific community groups, particularly those aligned with the pro-Palestinian case and British Muslim communities, including the risk that it would be seen as evidence of a disproportionate application of terrorism powers against the Muslim community. Similarly, the community impact assessment referred to the effects on the Muslim community and other communities. It noted the likely effects on British Muslims and their strong alignment with Palestine Action’s objectives. It noted that Muslim-majority diasporas communities would hold strongly negative views on proscription and that one group asserted that “many Arab Christians in the UK are likely to share this opposition”. It is clear that the Secretary of State did have regard to the effects of proscription. Furthermore, it is in any event obvious from the subject matter of the decision that the Secretary of State must have been weighing the impacts of proscription against its perceived benefits. The decision would proscribe an organisation, Palestine Action, whose purpose was said to be to prevent violations of international law against the Palestinian people. It is obvious that if she proscribes an organisation with that aim, it is likely to affect people who include Palestinians. This ground is unarguable.