[2024] UKUT 00281 (IAC)

Mr Skinner argued that the Respondent had met the test in Section 31(2A). Whilst TTT had been the most recent authority, the Court in that case had recited only part of the relevant case law. The cases of R (Cava Bien Ltd) v Milton Keynes Council [2021] EWHC 3003 (Admin) (at §52) and R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 (at §272) had noted three differences between the test under Section 31(2A) and the previous materiality test under common law.

First, under statute, the matter was not simply one of discretion but was a statutory duty on the Court to refuse an application for judicial review, provided the statutory criteria were satisfied. This was subject to a discretion, vested in the Court to grant a remedy on grounds of exceptional public interest.

Second, the outcome would not inevitably have to have been the same, but it would suffice if it were highly likely.

Third, it did not have to be shown that the outcome would have been exactly the same provided it was highly likely the outcome would not have been substantially different for the Applicant. This was very much a lower test than the one in ASO (Iraq) v SSHD [2023] EWCA Civ 1282 at §43 for statutory appeals, namely that any rational Tribunal must have come to the same conclusion.