QP1 v Secretary of State for the Home Department

Hearing date: 5 March 2025

Approved Judgment

This judgment was handed down remotely at 4.00pm on 10 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The claimants are husband and wife. They are Afghan nationals. It is not in dispute that, after the Taliban gained control of Afghanistan in August 2021, the claimants went into hiding where they have remained. They apply for judicial review in relation to what they characterise as:

i. The failure of the first defendant (the Secretary of State for the Home Department) to consider whether the claimants should be granted entry clearance outside the Immigration Rules on an exceptional basis; and

ii. The failure of the second defendant (the Secretary of State for Defence) to refer the first claimant's case to the first defendant in order for entry clearance to be considered.

The claim for judicial review flows from the first claimant's unsuccessful application to the second defendant under the Afghan Relocations and Assistance Policy (“ARAP” or “the policy”). The second claimant essentially supports the first claimant's challenge and raises no separate grounds for judicial review. This judgment therefore focuses on the first claimant whom I shall for convenience call “the claimant.”

The claim has a convoluted procedural history which has given rise to delay, muddle and mistakes. This is my judgment in relation to the grounds for judicial review as they were presented to me.

The ARAP scheme

The ARAP scheme was launched on 1 April 2021 as “a means of showing commitment and paying a debt of gratitude towards those who had worked for or with the United Kingdom Government in Afghanistan” ( R (LND1) v Secretary of State for the Home Department [2024] EWCA Civ 278, [2024] 1 WLR 4433, para 8). It has been routinely updated but has always had two stages. The first stage deals with whether an applicant is eligible under the scheme, which is determined by the second defendant under the policy. The second stage is sometimes called the suitability stage but is more accurately described as the consideration by the first defendant of whether entry clearance to the United Kingdom falls to be granted to an eligible person. In R (BYK) v Secretary of State for Defence [2025] EWHC 235 (Admin), I described the two stages in the following terms:

“13. Responsibility for the assessment of eligibility for relocation lies with officials within the Ministry of Defence. These officials are ‘best placed, liaising where necessary with other Government agencies operating in Afghanistan, to…assess [a person's] eligibility for relocation’ ( S v Secretary of State for the Home Department [2022] EWCA Civ 1092, para 16). In relation to [some] cases, the [Ministry of Defence] may refer the case to other Government departments and agencies in order that they may confirm whether or not an individual has worked alongside a Government department.

…

16. If an applicant satisfies the ARAP criteria, responsibility passes to the Home Office. The Immigration Rules have specifically catered for relocation to the United Kingdom under ARAP since 1 April 2021… The Home Office will ensure that all relevant aspects of the Immigration Rules are satisfied. This will include an assessment of whether there are grounds for refusal of entry clearance under one of the general grounds for refusal under Part 9 of the Rules, such as criminality.”

An ARAP application must be made to the second defendant on the ARAP online form. The eligibility criteria applied by the second defendant are set out in detail under various “Categories” in the policy. The claimant's application was essentially an application made under Category 4, which is defined in the following terms:

“The [Category 4] cohort… are those who:

• on or after 1 October 2001 were directly employed in Afghanistan by a UK Government department; provided goods or services in Afghanistan under contract to a UK Government department; or worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department; and

• in the course of that employment or work or provision of services they made a substantive and positive contribution to the UK's military objectives or national security objectives (which includes counter-terrorism, counter-narcotics and anti-corruption objectives) with respect to Afghanistan; and

• because of that employment or work or provision of services, the person is or was at an elevated risk of targeted attacks and is or was at a high risk of death or serious injury; or

• hold information the disclosure of which would give rise to or aggravate a specific threat to the UK Government or its interests.

Checks will be made with the UK Government department by whom the applicant was employed contracted to or worked alongside, in partnership with or closely supported or assisted” (emphasis added).

The policy is administered by the second defendant and is not part of the Immigration Rules. However, the Rules contain a section called “Appendix ARAP”, which specifies eligibility criteria for the grant of entry clearance in the same terms as the policy. In contrast to applications made under other sections of the Rules, the entry clearance process under Appendix ARAP is not initiated by the ARAP applicant and there is no publicly available visa application form (“VAF” or “application form”) for individuals to complete if they wish to seek entry clearance under ARAP. If the second defendant accepts that the ARAP eligibility criteria are met, the Ministry of Defence will refer the case to the Afghan Casework Team (formerly the Joint Afghan Caseworking Unit) within the Home Office for the entry clearance process to take place.

It is a condition of the grant of entry clearance that a person has provided biometrics when required. In this context, biometrics means fingerprints and a photograph of a person's face (Immigration Rules, Appendix ARAP, para 1.1(c); The Immigration (Biometric Registration) Regulations 2008). When a person arrives in the United Kingdom, the entry clearance has the effect of indefinite leave to enter (Appendix ARAP, paras 7.1 and 7.2).

Leave outside the Immigration Rules

The first defendant has a discretion to grant entry clearance, leave to enter and leave to remain outside the Immigration Rules (“LOTR”). There is published guidance for Home Office decision-makers as to how that discretion should be exercised (“the LOTR Guidance” or “the Guidance”). Counsel directed me to Version 3 of the Guidance published on 29 August 2023. As set out on page 3, a person may be granted LOTR on the basis of “compelling compassionate grounds” when there is no other route to entry or stay.

In the introductory section, the Guidance states that, in order for an individual to demonstrate “compelling compassionate grounds” for entry, a decision-maker must be satisfied that a refusal of LOTR “would result in unjustifiably harsh consequences for the applicant or their family.” In a section entitled “Important principles”, the Guidance states:

“ A grant of LOTR should be rare. Discretion should be exercised sparingly where there are factors that warrant a grant of leave despite the requirements of the Immigration Rules or specific policies having not been met. Factors raised in [an] application must mean that it would not be proportionate to expect the person to remain outside the UK or to leave the UK.

The Immigration Rules have been written with clear objectives and applicants are expected to make an application for leave to enter or remain in the UK on an appropriate route under the relevant Immigration Rules… Considerations of whether to grant LOTR should not undermine the objective of the rules or create a parallel regime for those who do not meet them” (emphasis added).

There are sound democratic reasons for LOTR to be “sparingly” granted. By virtue of section 3(2) of the Immigration Act 1971, statements of the rules (or changes to the rules) as to the practice to be followed by the first defendant in the regulation of immigration control must be laid before Parliament and may be disapproved by either House of Parliament. The same Parliamentary scrutiny cannot be brought to bear in relation to executive practices and decisions outside the Immigration Rules. As the Guidance makes plain, the Immigration Rules have clear objectives. It is important for decision-makers to respect the objectives of the Rules and to avoid what the Guidance vividly calls “a parallel regime” falling outside the scrutiny provided by section 3(2) of the 1971 Act.

There is no specific or bespoke form for applying for LOTR from overseas. Applicants must use one of the online application forms that cater for other routes to entry. The Guidance stipulates that a person applying for LOTR from outside the United Kingdom must apply on the online application form for the “route which most closely matches their circumstances.” In her witness statement on behalf of the defendants, Ms Janet Gordon-Smith (then Head of Armed Forces, Domestic Abuse and Settlement Policies in the first defendant's Human Rights and Family Unit) sets out the reasons for this approach. She states as follows:

“39. There is no specific standalone application form for LOTR [for overseas...