Association of Muslim Schools cannot appeal Al-Hijrah judgment, court rules

The Association of Muslim Schools is not allowed to appeal to the Supreme Court against a ruling that one of its members broke the law by segregating boys and girls.

The Court of Appeal decided that the AMS cannot be named as an “interested party” in the case of Al-Hijrah school in Birmingham, which judges ruled last month had broken equalities law.

The ruling is widely expected to become a test case for other mixed-sex schools that segregate, and Ofsted will use it to inform future inspections.

Neither Al-Hijrah school nor Birmingham City Council sought permission to appeal the ruling in October, but the AMS did, warning that it could cause a conflict between its legal and religious responsibilities.

However, the Court of Appeal has refused to let it be named as a respondent, interested party or intervenor in the case, which would have allowed it to seek permission to appeal to the Supreme Court.

Ruling puts schools at ‘immediate’ risk of challenge

The AMS has 10 Muslim schools in its membership that formally segregate boys and girls in a mixed-sex setting, and believes there may be more Muslim schools as well as those of other faiths that do similar.

Ashfaque Alichowdhury, the chair of the AMS, claims last month’s ruling “may have created a conflict” between its duties to both ensure its schools comply with their legal obligations and “act in a way which is consistent with Islamic teachings and practices”.

This conflict “compromises the association’s ability to fulfil what it understands are its purposes”, and puts those schools that segregate pupils at “immediate risk of challenge” from statutory bodies and other interested parties.

The Court of Appeal refused the AMS’ application on several grounds.

  • The AMS was aware of the proceedings and the appeal but never applied to be an interested party or intervenor until after the conclusion of the appeal
  • The proceedings “concern the legality of a specific report by Ofsted about the particular arrangements for pupils in the school” and the school itself accepts the decision
  • This is not a case in which the losing party does not have the resources to appeal or is for some other reason prevented from appealing
  • Judgments are limited to the precise arrangements for segregation in the school at the time of the relevant Ofsted report. They do not address other situations mentioned by Alichowdhury
  • It was never part of the claim or the appeal that the court should direct Ofsted what to do

The court also claimed it would have refused permission to appeal even if its application to become an interested party or intervenor had been successful.

This is because an appeal “would have no real prospect of success”, and any subsequent application to the Supreme Court “would itself foster uncertainty for an unpredictable period and with an uncertain outcome with implications for the council and the claimant school which accept and wish to implement our decision”.