The Court of Appeal and another conceptual wrestling match

The Court of Appeal decision in R.(Guled) v Secretary of State for the Home Department [2019] EWCA Civ 92 was an immigration case which is of wider interest within the field of administrative law generally and, for the purposes of this Blog, planning and development. 

The point of interest relates to a short debate about the perceived difference between ‘nullity’ and ‘invalidity’.  An administrative action which is found to be unlawful can, sometimes, be characterised as being a ‘nullity’ (aka ‘void ab initio’ or just ‘void’) and the prevailing judicial wisdom is that an action which is a ‘nullity’ at law has no legal existence.  An action which is said to be ‘invalid’ has a legal existence unless and until it may be quashed by the courts.  There is, however, a major flaw in this seemingly simple distinction; namely, that the people may act upon, and change their positions, in reliance on something which a nullity in law. Thus, they may be prejudiced by adopting the not unreasonable presumption that the actions of an administrative body are lawful. Administrative lawyers have wrestled with this significant problem for many years and have manifestly failed to provide a credible solution.

The Court of Appeal considered the matter.  The salient points were (per Holroyde LJ) [1]:

44. I therefore turn to the issue of whether the public law error in the making of DO2 rendered that order a nullity, void ab initio, which accordingly did not invalidate Mr Guled’s existing LTR.  Lord Dyson’s words in Lumba expressed the Anisminic principle in broad terms, and relied upon Boddington.   However, as I have indicated in paragraphs 20-23 above, Lord Irvine’s broad statement of the Anisminic principle did not receive explicit support from the other Law Lords in Boddington.  Lords Browne-Wilkinson, Slynn and Steyn made observations which recognised that even an unlawful decision or act may in some circumstances have legal consequences.  Other judges, and academic writers, have similarly proposed that nullity in this context should be treated as relative rather than absolute.  That seems to me to be the correct approach, not least because I am uncomfortable with the use of the word “nullity” once it is recognised that the unlawful act may have legal consequences, at least for third parties, during the period before it is declared unlawful.  Mr Knafler, whilst of course relying on the words of Lord Dyson in Lumba and on Draga (see paragraphs 24 and 25 above), accepted that the application of the Anisminic principle is subject to a proviso where innocent third parties have acted in reliance on the validity of the relevant act or decision before it is declared to be unlawful.   I would therefore wish to focus upon the very unusual circumstances of the present case, and not seek to anticipate every situation in which the consequences of an unlawful deportation order may have to be considered. (emphasis added)

Some may see the addition of this “proviso” are being a solution to the problem of the innocent third party.  An alternative is that the adoption of the ‘relative invalidity’ approach is mere ad hockery and fails to address the real problem, which is that the court have painted themselves into a corner with their over-use of the notion of ‘nullity’.  One is left with the widely recognised dilemma that an action or instrument which the courts might later hold to be void may be relied upon by any number of people before it is declared a nullity.  Instead of going to the heart of the matter, and seeking to unravel the off camber wheels set in motion by cases such as Anisminic, academics come up with convoluted ad hoc responses and judges duck the issue. 

The adoption of this “proviso” unhelpful.  To put it bluntly, one cannot have it both ways. Either one adopts the simplistic ‘nullity’ approach or one does not. Either an action is void ab initio or it is not.  The notion of ‘relative validity’ not only does nothing to resolve this problem but makes it worse. For example, the innocent third party is protected in some way until the challenged to the disputed action is determined, but this notional protection appears to be limited to one off changes of position during this period. This leaves unclear the situation where the third party has set the wheels of an extended process in motion during the notional currency of the challenged action but is then left high and dry when that process has to be abandoned. If an appeal is triggered in reliance on that challenged action, then it will have to be discontinued once that action is determined to be a nullity. No doubt someone will provide another ad hoc answer, but it would be the application of one Band Aid over another. 

[1] Davies LJ and Richards LJ concurring.


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