Upper Tribunal (Immigration and asylum chamber), 2024-09-27, [2025] UKUT 00090 (IAC) (R (on the application of Gurung) v Secretary of State for the Home Department (ACRS meaning policy interpretation principles) (IJR))

UT Neutral Citation Number: [2025] UKUT 00090 (IAC)

R (on the application of Gurung) v Secretary of State for the Home Department (ACRS meaning – policy interpretation principles)

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
Breams Buildings
London, EC4A 1WR

Hearing date 23rd July 2024
Promulgated 27th September 2024

Before:

THE HON. MR JUSTICE DOVE, PRESIDENT
UPPER TRIBUNAL JUDGE KEITH

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Between:

THE KING
on the application of
Bam Bahadur Gurung
Applicant
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The Secretary of State for the Home Department
Respondent
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Mr Ali Bandegani and Ella Gunn, Counsel, (instructed by Duncan Lewis Solicitors), for the Applicant

Carine Patry KC
(instructed by the Government Legal Department) for the Respondent

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1. Interpretation of a policy is a matter of law for this Tribunal, as confirmed in Kambadzi v SSHD [2011] UKSC 23, at §36.
2. The correct approach to understanding the meaning of a policy is for the court or tribunal to decide the meaning for itself. It is wrong to limit the enquiry of the court or tribunal to the question of whether the meaning which the Respondent has attributed to it is one within the range of reasonable meanings only: (see R (O) v SSHD [2016] UKSC 19, §28).
3. A policy must be interpreted objectively, in accordance with the language used, read as always in its proper context. A policy is not to be read as if it were a statute or contract. See, for example, Mandalia v SSHD [2015] UKSC 59, at §31.
4. The views of a third party on the interpretation of a policy are irrelevant.
5. It is necessary to consider the primary intended readership of a policy. For example, see R (Cotter) v National Institute for Health and Care Excellence [2020] EWCA Civ 1037. Where the intended readership is a group of specialists or experts, words in a policy may be ‘terms of art,’ in the sense of having specific meanings understood by the primary readership of experts, with knowledge of specialist terminology and practice.
6. Alternatively, where the primary readership is the general public, then the interpretation should focus on the natural and ordinary meaning of a policy’s words, as understood by a reasonable and literate person (Mahad v ECO [2009] UKSC 16, at §10).
7. Material or evidence to which the intended readership of a policy does not have access cannot aid its interpretation.
8. There is a distinction between ‘context,’ in the sense of informing a proper understanding of the interpretation of a policy, and background facts. Context is broad. It includes interpreting words and phrases within the context of the policy itself, taking the policy as a whole. It may include how a policy sits alongside other policies and statutory provisions, particularly if the words of a policy are ambiguous (discussed for example, by the Court of Appeal in Cotter, at §51). It is also closely linked to the purpose of a policy. However, the scope of context has limits. In particular, the relevance of ‘background facts’ as an interpretative aid should be considered with caution. It is important to identify the proposition which the facts are said to support. Once that proposition is identified, the reader can then appreciate how that proposition aids interpretation of the policy.
9. The earlier versions of a written policy may aid the interpretation of a later version. In particular, the changes to a written policy may provide textual context, explain clarifications to ambiguities and shed light on the author’s intentions in a policy, when objectively understood.
10. There is an important distinction between the proper interpretation of a policy and its application. The interpretation of a policy is a matter for the court or tribunal; its application and the judgments which they may entail are a matter for the decision maker.

The Afghan Citizens Resettlement Scheme (‘ACRS’)

11. At the heart of the ACRS is the word, “resettlement.” The word takes its colour from, and only makes sense, in the context of ‘risk.’ ‘Risk’ runs throughout the ACRS section of the ARIPS, and the ACRS Guidance. The criteria in the policy are to be understood as applying to those at future risk, not simply those who were at risk in the past.

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J U D G M E N T
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Decision:

Background

1. None of the facts in this case are disputed. This case turns on the correct interpretation of the Respondent’s policy, the ‘Afghan Citizens Resettlement Scheme’ (which we refer to as the ‘ACRS’).

2. The Applicant is the lead Applicant, with seven others whose applications have been stayed, pending determination of his application. None of the Applicants are Afghan nationals. The Applicant does not have any family members who are Afghan or British nationals. The Applicants were evacuated from Afghanistan by UK Armed Forces on 18th August 2021, in anticipation of the Taliban’s imminent return to power, under “Operation Pitting” (described in detail in R (‘S’ and Anor) v The Secretary of State for Foreign, Commonwealth and Development Affairs & Ors) [2022] EWHC 1402 (Admin)). They were granted entry clearance and limited leave to remain outside the Immigration Rules (or ‘LOTR’). There is a general power to grant LOTR, and others who were later prioritised and granted entry and limited leave to remain became known informally as receiving “Pitting LOTR” (see §10 of S & Anor). The Respondent points out that she did not grant the Applicant Pitting LOTR, as he was evacuated before the Pitting LOTR ‘cohorts’ were agreed. Instead, he was granted entry and limited leave to remain, as an exceptional gesture of goodwill, initially for one month, then extended to six months. Other evacuees were eligible for, and were granted leave under an entirely separate policy, the Afghan Relocations and Assistance Policy (‘ARAP’). ARAP is also discussed in detail in S & Anor. It is unnecessary for us to say more about ARAP. The parties also accept that not everyone who was evacuated was entitled to, or granted, indefinite leave to remain (‘ILR’).

3. The Applicants were referred for consideration for ILR under the ACRS. We use the word ‘referred,’ as potential beneficiaries of the ACRS cannot apply for it, in contrast to many other routes to settlement, including ARAP. Instead, the ACRS is ‘invitation only.’ Even an invitation does not provide an entitlement to ILR. This is because the number of grants of ACRS ILR is capped at 20,000, with 5,000 in the first year. Not all of those potentially eligible will be granted ILR, as the Respondent anticipates that the ACRS will be oversubscribed. Instead, the ACRS talks of prioritisation, about which we say more later.

4. Having been invited to apply, (and having had applications lodged on their behalf by the Respondent) all the Applicants were assessed as ineligible under the ACRS, and their cases were ‘voided.’ Five others who were evacuated at the time were granted ILR. The Respondent says that she did so in error. She says that she is not obliged to repeat her mistakes.

5. The Applicant is a Nepalese national. The other Applicants are either Nepalese or Indian nationals. They were private contractors working as security guards, guarding the UK and Canadian embassies in Kabul. In the Applicant’s case, his employer was Hart International, which had a contract with the Canadian Government, albeit he provided services to both embassies. There is no suggestion of any contractual nexus between his employer and HM Government or the UK Armed Forces. The Applicant says that his nationality and the lack of any contractual nexus are irrelevant. He argues that he meets the criteria of one of three ‘pathways,’ about which we say more later.

6. The Applicant relies on ‘Pathway 1’ of the ACRS, as someone who was put at risk by [then] recent events in Afghanistan. The ACRS was intended to provide a ‘route to safety,’ which would prioritise those who had assisted the UK’s efforts in Afghanistan and stood up for values such as democracy. The Applicant points out that the ACRS did not only apply to Afghan nationals and could, for example, apply to third country nationals, (or ‘TCN’s), for example those in mixed nationality families.

7. In contrast, the Respondent argues that the ACRS was never intended to apply to TCNs who were not at risk in their home countries. The Applicant does not claim to be at risk in Nepal. Indeed, he returned to visit his family while working in Afghanistan, and previously, when he worked as a security contractor in Iraq.

8. We have been provided with the following bundles: a joint bundle ‘B’; and two authorities bundles, only the first of which we refer to, ‘AB.’ The parties have each provided a skeleton argument. The Applicant has also produced a note on relevant authorities as to the interpretation of policy, which has assisted us. Where we refer to page numbers in the bundles, we will do so in the following format: B/[x] or AB/[x].

The Respondent’s initial rejection of the Applicant for ACRS

9. The Respondent invited the Applicant to make submissions on extending his leave to remain under the ACRS. At the time, he was in the UK. On 10th February 2022, the Applicant did so, and he attended a meeting with the Respondent on 17th February 2022. On 4th March 2022, the Respondent asked the Applicant to provide his biometric details.

10. On 14th June 2022, the Respondent reached a decision to void the Applicant’s case, stating at B/[545] that:

“As a Nepalese national you were evacuated from Afghanistan as a gesture of
goodwill by the UK Government. This came with the understanding that once in the UK you would arrange and be offered support for onward travel to the country of your nationality. You are not eligible for relocation under this scheme as you do not meet the criteria set out in the Rules. You therefore do not hold current leave and...