[2024] UKUT 395 (AAC)

Mr Banks argued that even if the exception in Article 11(6)(a) wasn’t satisfied, the exception in Article 11(6)(b) was made out because “sporting activity” includes rugby union, and rugby union is approved by the Defence Council, and Article 11(6)(b) does not require the sporting event to be “recognised”.

While “sporting activity” is defined in the AFCS Order, rather unhelpfully it is given an inclusive, rather than an exclusive, definition: it states that it “includes an adventurous course or an adventurous expedition approved by the Defence Council”, but it doesn’t say what is excluded.

While Article 11(6)(a) refers to “sport or sporting activity”, it is clear from the words that follow (“as being a sport which enhances the fitness, initiative and endurance of members of the forces…”) that something being a “sporting activity” does not necessarily exclude it from being “sport”.

However, for Article 11(6)(b) to apply, the sporting activity must be “undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces”.

While a one-off civilian charity rugby match may provide some benefit in terms of maintaining physical fitness, such a benefit is merely incidental: its purpose is to raise funds for charity and to raise the charity’s profile, rather than to meet or maintain physical standards required of members of the forces.

For all these reasons I am satisfied that the Tribunal erred materially in law in its approach to, and interpretation of, Article 11(6) of the AFCS Order.

On its proper interpretation, the exclusion in Article 11(5) applies to the claimant’s circumstances and neither exception in Article 11(6) applies. This is, therefore, a case in which consideration of Article 11 is “the end of the case”, as Judge Rowland put it in SM v SSD.

It is not necessary for me to decide the matters raised by Ground 2 of the Secretary of State’s grounds of appeal.