QP1 & Anor v Secretary of State for The Home Department & Anor [2025] EWHC 1388 (Admin)

[2025] EWHC 1388 (Admin)Case No AC-2022-LON-003697
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/06/2025
Before
MRS JUSTICE FARBEY
Between
QP1Claimants(2) QP2Claimant(1) SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendants(2) SECRETARY OF STATE FOR DEFENCEDefendantRamby de Mello and Edward Nicholson (instructed by Luke & Bridger Law) for ClaimantsSian Reeves and Jonathan Worboys (instructed by Government Legal Department) for DefendantsHearing Hearing date: 5 March 2025
Approved JudgmentThis 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.
[1]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.[2]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.”[3]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

[4]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.”
[5]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). • 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).[6]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.[7]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, paras7.1 and7.2 ).

Leave outside the Immigration Rules

[8]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.[9]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).[10]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.[11]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 applicants]. From a policy perspective, we think the many different circumstances where a person may seek LOTR is adequately catered for already: a. Applicants should use the form most closely matching their circumstances – this means there are several forms that may be appropriate for an application for LOTR depending on the applicant’s circumstances. b. It means we are able to gather as much information about the relevant circumstances as possible via the appropriate form to support casework, e.g. family forms ask about relationships and particularly cover the relationships and circumstances a caseworker is likely to need to consider. This benefits caseworkers and the customer because it means cases can be considered more quickly with less need to write out for information. For example, in some cases LOTR is being sought because the person does not meet a specific requirement of a route and it makes most sense for them to apply on the appropriate form for that route. c. The range of circumstances a person might want to raise outside the rules has potential to be wide and varied and it would be difficult to develop a form that properly caters for them all – as compared to the current approach. 40. Another reason to apply on the form that most closely fits the applicant’s circumstances is to ensure that a suitable fee is captured for the consideration (e.g. a visit visa is £100 while a family visa is closer to £1500). The way the online forms are designed is dynamic and means we cannot have a variable fee as the fee charged at the conclusion of the application is dependent on the form used – i.e. application fees mirror to some degree the complexity of the case type and time taken. It would require additional resources to create a new form and require new case work processes as it would not be clear until the form had been considered which was the relevant workgroup for the type of application.”
[12]The Guidance states that an ARAP application form cannot be used to apply for LOTR. ARAP applicants who wish to apply for entry clearance outside the Rules should make an application on the online application form for “whichever other route most closely matches the applicant’s circumstances.” Ms Gordon-Smith’s witness statement explains why an ARAP application form cannot be used to apply for LOTR, as follows:
“22. The MoD [ie Ministry of Defence]… are… able to confirm that a person worked for or with them in Afghanistan and are able to decide the threat of risk to them and their family dependants as a result of that work… The MoD are not capable of making an immigration decision, especially on the basis of exceptional circumstances in complex human rights claims. Such claims are a matter for specialised Home Office decision-makers and should be made on an application that affords the applicant the opportunity to provide information that is necessary and sufficient to decide such a claim – which immigration application including the family or family reunion applications both do – both are applications that consider whether refusal to grant entry clearance or permission to stay would result in a breach of human rights, and where those requirements are not met, will afford the applicant consideration of exceptional circumstances and compelling compassionate grounds. 23. Nor would it be appropriate for the MoD to be used as a screen or filter for applications which can and should be made directly to the Home Office. Furthermore, the administration of ARAP would be significantly hampered if individuals who were not eligible (because, for example, they did not work for or with a UK Government Department in Afghanistan) or are not the dependent family of those who did and who are eligible for relocation under the ARAP, submitted ARAP forms as a route to asking the SSHD to exercise discretion to grant immigration status LOTR. The applicant similarly would be subject to unnecessary delay if they were having to wait their turn in an ARAP queue, when there is a 120-day service standard on human rights applications (although I appreciate some more complex cases may take longer).”

Facts

[13]Against this background, I turn to the facts.[14]The applicant was born in 1989. He holds a degree in English Language and Literature from Kabul University. Having studied International Humanitarian Law at a university in the Netherlands, he dedicated his career to humanitarian and charitable causes. I have considered all the documents demonstrating his career trajectory and the photographs showing the claimant working in buildings and in the field. I shall set out the main elements of his career in guarded terms in order to protect his anonymity.[15]In 2011, the claimant started work in Kabul translating (from English to Dari) the military manuals for vehicles and tanks donated by the United States military to the former Afghan security forces. After a few months, he changed his employment and began work as a Project Officer for a British aid organisation. Thereafter, he worked for a development organisation followed by an organisation helping refugees. He has also worked for an internationally known NGO and for another humanitarian organisation.[16]On 29 October 2021, the claimant made an ARAP application using the appropriate online form. By email dated 19 February 2022, the second defendant sought further information about his application. On the same day, the claimant made what he characterises as an application under the Afghan Citizens Resettlement Scheme. I heard no argument on the applicant’s claim under that Scheme and do not propose to say more about it.[17]By email dated 21 February 2022, the claimant responded to the second defendant’s request for further information. On 22 November 2022, in the absence of a decision, the claimant’s solicitors sent a letter before claim (“LBC”) to the first defendant, treating the second defendant as an interested party.[18]In the LBC, the claimant’s solicitors complained (among other things) about the delay in the second’s defendant’s determination of the ARAP application and asked the first defendant to determine the application rather than “delegating the task” to the second defendant. The first defendant was asked to consider the ARAP application outside the Immigration Rules in the following terms:
“The Claimant and his wife are living in fear for their life and safety due to the Claimant’s positions of employment prior to the fall of the Afghan Government to the Taliban and as a result of their status/religious beliefs. … As a result of the Claimant’s employment with international organisations and assisting allied forces with interpreting, the Claimant and his wife are currently in grave risk of danger in Afghanistan. … Both the Claimant and his wife are at risk not only as a result of prior employment but also as a result of their status and beliefs. Both are [name of ethnic group stated but redacted for anonymity] and Shiaa as well. [Name of ethnic group] are a prosecuted minority of Afghanistan which both Taliban and ISIS attack regularly. Following the Taliban’s rise to power the Claimant’s brother’s house was looted. The Taliban informed the Claimant’s brother that they were searching for the Claimant and declared him to be an ‘infidel… and a spy for the Americans’. The Claimant and his wife continue to live in constant fear in Afghanistan as a result. As a result of the risks faced, the Claimant applied for resettlement in the UK/relocation to the UK under the ARAP and ACRS schemes… The Claimant is yet to hear anything from the Defendant in response to either applications. He and his wife continue to live in constant fear as a result. … Given the grave danger that the Claimant and his wife are placed in the Defendant is asked to react quickly in response to this correspondence. The Defendant is asked to agree to treat the Claimant’s applications as applications made outside the Immigration Rules. In the alternative, the Defendant is asked to treat the applications as having been made under the Rules, in particular para 267B and asked to agree to waive the requirement for fees and the biometrics. … For the avoidance of doubt, the Claimant and his wife cannot make an online application for Entry Clearance whilst in Afghanistan so that is why they wish the Defendant to consider their applications made to date under the Immigration Rules.”
[19]The claimant’s solicitor enclosed the claimant’s ARAP application, documentary evidence of his education and employment, and his CV. Contrary to the LBC, the claimant appears never to have been an interpreter for allied forces but this discrepancy is not material to the present claim.[20]On 6 December 2022, the first defendant responded to the LBC. The response emphasised that responsibility for the determination of ARAP applications lies initially with the second defendant and that the claimant had made no application (whether for LOTR or otherwise) to the first defendant. The response maintained that the first defendant was the wrong target for judicial review proceedings.[21]By a claim form dated 22 December 2022, the claimant launched judicial review proceedings against both defendants, seeking relief in relation to:
“the failure to determine the first Claimant’s application under ARAP… expeditiously and/or to consider [the ARAP application] on an expedited basis outside the Immigration Rules or alternatively under the relevant Immigration Rules.”
[22]On 26 January 2023, the defendants filed a joint acknowledgment of service and summary grounds for resisting the claim.[23]On 31 January 2023, after the issues in the claim had been delineated in the parties’ respective statements of case, the claimant sent an email to the Public Enquiries section of the Home Office in which he purported to apply for “leave outside the Rules” and “a visa.” His application was accompanied by a number of documents including a completed VAF for entry clearance as a visitor. The VAF stated that the claimant was seeking to visit the United Kingdom for one year.[24]By order dated 6 March 2023, Ritchie J granted permission to apply for judicial review. Subsequently, by a letter dated 29 August 2023, the second defendant refused the ARAP application. The refusal letter stated the criteria for relocation to the United Kingdom under the various ARAP Categories and stated that the claimant did not meet the criteria for any of the Categories.[25]On 8 September 2023, the defendants filed detailed grounds of defence which were subsequently amended to cater for some of the amendments to the claimant’s grounds of challenge.[26]On 13 September 2023, the claimant submitted a request to the second defendant for a review of the negative ARAP decision. The second defendant reviewed the decision. By a letter dated 12 June 2024 (“the review decision”), the second defendant adhered to the original decision without additional reasons for refusal.

The grounds of challenge

[27]Reflecting the various developments since the grant of permission, the grounds of challenge have waxed and waned. Some grounds have been withdrawn. Other grounds have been added to the claim in successive applications to amend the claimant’s statement of case.[28]On behalf of the defendants, Ms Sian Reeves, with Mr Jonathan Worboys, complained that the claimants had not been granted permission to apply for judicial review in relation to all of the amended grounds. I have sympathy with that position; but not all of the blame for overlooking the need for permission on all of the amended grounds can be levelled at the claimant’s lawyers. The defendants could have brought any procedural shortcomings to the attention of the court. Notably, there was a series of consent orders made in relation to procedural matters. Those consent orders would doubtless have suggested to the judges who approved them that the claim was progressing in a mutually agreed manner and not that important pre-hearing issues remained outstanding.[29]In judicial review proceedings, only those grounds of claim for which permission has been granted are capable of proceeding to a hearing of the claim (CPR 54.4). The court will use its powers to impose procedural rigour, both in the interests of predictability and fairness for the parties and also in the public interest with which public law litigation is inherently concerned (R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841, paras 67-68 per Singh LJ). Procedural rigour means that all parties and the court should know in advance of a substantive hearing whether permission has been granted to proceed on any particular ground. The numerous interim orders do not appear (as I understand them) to have dealt with the question of permission in relation to all of the amended grounds. The extent to which successive additions to the claimant’s grounds were the subject of permission decisions was indeed hard to piece together.[30]The problem had become somewhat less acute by the commencement of the hearing as, by then, five out of six grounds had been abandoned. No challenge to the ARAP refusal or to the review decision was maintained. The only extant ground of challenge concerned LOTR.[31]Ms Reeves complained (with some justification) that the formulation of the issues concerning LOTR did not fully match the pleaded case and could not be fully tallied with the grant of permission to apply for judicial review. She did not, however, seek an adjournment to consider any of the issues in more depth or to take further instructions. The issues raised before me were as follows: i. Issue 1: Was the first defendant’s decision not to consider the claimant’s application outside the Immigration Rules on an exceptional basis unreasonable? It is common ground that Ritchie J granted permission to apply for judicial review on this issue. ii. Issue 2: Is the first defendant’s failure to provide what the claimants calls a “simpler unitary form” and/or a separate form for an LOTR application for ARAP applicants rational? To the extent that permission may not have been granted to advance this issue, I grant it. iii. Issue 3: Has the first defendant provided sufficient and adequate reasons as to why a separate LOTR form for ARAP applicants is unnecessary? It appears that Ritchie J granted permission to advance this issue which was raised, albeit in broad terms, in the claimant’s original statement of grounds.[32]No further permission decision is required. Issue 1: First defendant’s failure to consider LOTR The parties’ submissions

Issue 1: First defendant’s failure to consider LOTR

[33]Mr de Mello referred me to the paragraphs of the LBC that I have set out in paragraph 18 above. He submitted that these paragraphs constituted an application for LOTR and that, having received the application, the first defendant was under a duty to determine whether the claimant should be granted LOTR. He submitted that the first defendant’s failure to do so was unreasonable. He accepted that the LBC was not a Home Office application form but submitted that, in the absence of any appropriate VAF available to ARAP applicants, the first defendant ought to have waived the requirement for an application to be made on an application form.[34]Mr de Mello submitted that, when reading the information in the LBC together with the information supplied to the second defendant in the course of the ARAP application, the first defendant had ample material to determine the question of LOTR as a matter of substance. The formal requirement of an application form was an unreasonable fetter on the first defendant’s discretion in circumstances where none of the Home Office application forms matched the applicant’s circumstances. Nothing in the evidence supplied by the first defendant (including Ms Gordon-Smith’s witness statement) cast any light on the form or forms that would be suitable for an LOTR application for someone in the claimant’s position. There was no candidate for an application form that would enable those in the claimant’s position to convey the force of the compelling compassionate circumstances that might underlie an ARAP application. For example, none of the available forms could cater for an applicant who failed to satisfy some single criterion under the ARAP policy but who faced a very significant risk to life in Afghanistan that could warrant waiving the unmet criterion through the grant of LOTR.[35]Mr de Mello submitted that the situation would be different if the claimant were applying as the dependent of an ARAP applicant, in which case application forms relating to family reunion under the Rules or family life under article 8 of the European Convention on Human Rights (“ECHR”) might match his circumstances and enable him to include information relating to LOTR. As an ARAP principal applicant, there was no appropriate form in which he could raise compelling compassionate circumstances outside a human rights framework.[36]Mr de Mello further submitted that there was no appropriate form in which the claimant could request and obtain waivers in relation to paying an application fee and providing biometrics. It was said by Mr de Mello that the claimant needed to obtain these waivers: he is in hiding and cannot meet these requirements of the application process. The provisions under the first defendant’s policy governing fee waiver applied only to human rights claims and did not apply to compelling and compassionate claims. No proper provision was made for those who, like the claimant in hiding, were unable to travel to, or attend, a Visa Application Centre, which was the only way of providing biometrics.[37]Ms Reeves submitted that the claimant had made no attempt to submit an application form that most matched his circumstances, which was a reasonable stipulation in the Guidance. It was not appropriate to use the LBC as a vehicle for an application for LOTR. The LBC had set out no proper account of why the requirement of an application form should be waived. The claimant had not been denied the benefit of LOTR because of the first defendant’s inflexible procedures but because of his solicitors’ failure to make a proper application.[38]Ms Reeves submitted that any requirement to pay a fee or provide biometrics could not give rise to a reviewable error of law because the claimant had not requested waivers for either of these things before they were requested in the LBC. There was no decision about waivers that the claimant could challenge. The claimant had not followed the proper procedures for requesting such waivers. The LBC had provided no reasons or evidence as to why the claimant was unable to follow the proper process and did not set out what were said to be the exceptional circumstances justifying such waivers. Any rationality challenge was in these circumstances bound to fail.

Discussion

[39]The claimant raised LOTR for the first time in the LBC. As the response to the LBC pointed out, and as Ms Reeves emphasised, there was at the time of the LBC no pre-existing application for LOTR. In the absence of any application whatsoever, the question of whether the first defendant should have waived the formal requirement for an application form had not arisen when the LBC was drafted and sent.[40]Mr de Mello maintained that the LBC was itself an application for LOTR. Under the Pre-Action Protocol for Judicial Review, the purpose of the LBC was to inform the defendants that the claimant proposed to launch a claim for judicial review and to set out the issues in dispute with a view to avoiding litigation. The LBC could not serve as an application for LOTR because it was not an application for entry clearance at all.[41]As Ms Reeves essentially submitted, it is neither in the interests of justice nor in the interests of effective immigration control that a party to proceedings can automatically bypass the administrative procedures established by the first defendant for entry clearance by moving straight to an LBC. This is not a matter of undue formalism in relation to cases deserving anxious scrutiny by courts and decision-makers alike. The requirement for a claimant to undertake the visa application process before litigation creates what has been called “a level playing field” for those seeking to enter the United Kingdom (R (HR) v Secretary of State for the Home Department [2024] EWHC 786 (Admin), para 67). It also creates a level playing field for those claimants in the Administrative Court who properly engage with public authorities in ordinary administrative processes rather than moving straight to the giving of notice of intention to litigate. The claimant could and should have made an application for LOTR before invoking this court’s jurisdiction. He would then have been able to challenge any refusal in this court (subject to public law error).[42]Further, the first defendant can expect a claim for LOTR to delineate (whether expressly or by inference) the “compelling compassionate grounds” which warrant a departure from the Rules. Upon analysis, the LBC raises substantially the same matters as constitute the ARAP application, namely the risks that are said to be faced by the claimant and his wife because of his employment. That was the basis of his ARAP application. The matters raised by the LBC were covered by the ARAP refusal which is no longer the subject of challenge. The LBC does not cast light on why the first defendant was bound to give any separate consideration to the grant of entry clearance outside the Rules.[43]It is right to note that the LBC mentions that the claimant is a member of a persecuted minority and that he is a Shia. He claims that these factors put him at risk of attack from the Taliban and ISIS. To this extent, the LBC asserts wider risks and makes a wider claim for protection than under Category 4 of ARAP. However, as Ms Gordon-Smith observes in her witness statement, the LOTR Guidance makes clear that wider applications for protection (applications for refugee status or humanitarian protection where ECHR rights would otherwise be breached) cannot be made from outside the United Kingdom. Mr de Mello accepted as much in his oral submissions.[44]Mr de Mello submitted that the claimant was not making a claim for protection. He emphasised that the claimant’s challenge concerned the first defendant’s failure to consider compelling compassionate circumstances as a freestanding ground for entry to the United Kingdom.[45]I have given anxious scrutiny to Mr de Mello’s helpful submissions. I do not intend to underestimate any dangers that the claimant and his wife may face in Afghanistan. Nevertheless, the role of the court, even in the sort of anxious cases that arise under ARAP, is to determine whether a decision, action or inaction of a public body is unlawful in public law terms (LND1, para 59). In broad but classic public law terms, the reasonableness of an act or omission of a public authority cannot be impugned on matters that have not been presented to it for determination. It follows that the court will not grant relief for public law error if the first defendant has at no stage been presented with a proper case for LOTR. Even on a close and rigorous analysis of all the documents before the court, the claimant’s case to be considered for exceptional treatment outside the Rules does not emerge from the LBC.[46]For completeness, I shall deal with the attempt to obtain entry clearance in January 2023, albeit that Mr de Mello did not rely on it. In order to make a valid application, the claimant was required to apply online on the gov.uk website (Immigration Rules, Appendix V: Visitor, para 2.1). As the application was emailed to the Public Enquiries section of the Home Office, it was not valid.[47]In any event, the application was flawed as a matter of substance. When he sought entry clearance in January 2023, the claimant had a pending ARAP application. By dint of his ARAP application, the claimant was intimating that he wanted to settle in the United Kingdom under the relevant Immigration Rules, which is inconsistent with an intention to leave the United Kingdom at the end of a visit as required by the Immigration Rules for visitors. Any application for entry clearance on a visit visa form was bound to fail on its merits.[48]The claimant’s second witness statement says that he completed a visit visa form in the absence of a VAF for LOTR for ARAP applicants. As I have already mentioned, under the LOTR Guidance, the claimant was required to use a VAF for the route most closely matching his circumstances. It is unrealistic to expect the Home Office to accept that a visit visa form satisfied that requirement. The visitor route is inconsistent with the grant of settlement on humanitarian grounds. Nor does the visit visa form seek the sort of information that could enable a person properly to explain his or her case for LOTR on humanitarian grounds.[49]By emailing his documents to the Home Office, the claimant in desperate circumstances may have raised his hopes of entry clearance when his hopes were bound to be dashed. I was told by Mr Nicholson that the claimant appeared to have filed the application without legal advice. Ms Reeves was sceptical of that assertion. Irrespective of how the application came about, its deployment in the present proceedings may have wrongly rekindled the claimant’s hopes. As I said to Mr de Mello and Mr Nicholson at the hearing, any raising of the claimant’s hopes was regrettable.[50]There are no other documents that could constitute an application for entry clearance outside the Rules.[51]Although raised as part of Issue 1, it is a different question whether the claimant was prevented by the operation of the online application process from requesting a waiver in relation to the payment of an application fee or the provision of biometrics. The claimant has not attempted to make an application for LOTR (save the invalid application in January 2023) and so he has not been prevented from entering the United Kingdom for want of paying a fee or providing biometrics. I agree with Ms Reeves that the first defendant has never been presented with a request for a waiver of either of those requirements.[52]There is no evidence to suggest that, under the recently updated Home Office systems described by Ms Gordon-Smith, the claimant could not apply for a waiver or deferral of biometrics. Ms Gordon-Smith describes the scope of guidance governing fee waiver in human rights cases. That guidance appears to be restricted to applications made on grounds of family life under article 8 of the ECHR. Nevertheless, in his second witness statement, the claimant says only that he cannot pay the fee in light of his “circumstances.” No further details are given and the first defendant has at no stage been presented with any reason to exercise the discretion to waive the fee on an exceptional basis. There is no reason for this court to grant relief.[53]This part of the claimant’s challenge fails. Issue 2: Failure to provide a separate VAF for ARAP applicants seeking LOTR The claimant’s submissions

Issue 2: Failure to provide a separate VAF for ARAP applicants seeking LOTR

[54]Mr de Mello submitted that the first defendant has unreasonably failed to provide an appropriate – or any – VAF for ARAP applicants seeking LOTR on compelling compassionate grounds. His submissions on this issue rested on two limbs, which I shall call the “unitary form argument” and the “separate form argument”.[55]Under the unitary form argument, Mr de Mello submitted that none of the existing VAFs came close to matching the claimant’s situation so that compliance with the Guidance was in practical terms impossible. He contended that the evidence filed by Ms Gordon-Smith failed to explain why any damage to immigration control would ensue from a system whereby the second defendant could have referred the claimant’s ARAP application form to the first defendant for consideration of LOTR. There would be no practical bar to such an arrangement as the second defendant already had a referral system in place, albeit only for applicants who met the eligibility criteria.[56]Mr de Mello submitted that a referral system would enable those in the position of the claimant – who could not sensibly use any of the available VAFs – to use a single application form for both stages of the ARAP process. The ability to use a single form would have enabled the claimant to seek entry both under ARAP and (as an alternative) under the LOTR Guidance. The ARAP application form would take on the role of a VAF and would be an appropriate application form for LOTR – as opposed to the existing, inappropriate forms. This would be a simpler system.[57]Under the separate form argument, Mr de Mello submitted that it was open to the first defendant to create a separate online form for LOTR applications made from overseas. In the absence of a separate LOTR form, it was unreasonable of the first defendant not to consider what the claimant had set out in his ARAP application form when requested to do so in the LBC.

Discussion: the unitary form argument

[58]I turn to the unitary form argument. In S & Anr v Secretary of State for the Home Department [2022] EWCA Civ 1092, para 25, Underhill LJ (with whom Lewis LJ and Elisabeth Laing LJ agreed) concluded that an ARAP form is not a VAF. I see no reason to reach a different conclusion in this case. I agree with Ms Reeves that the claimant’s ARAP application form was not a VAF and so could not constitute an application for entry clearance. It follows that it could not be used to make an application for LOTR.[59]This may not be the simple system for the consideration of ARAP cases that the claimant or those who advise him would wish for or design for themselves. That is not the test to be applied by the court. The first defendant’s choice of the form of applications and the underlying operational decisions concerning departmental processing of LOTR applications is an area in which (for well-established reasons of institutional competence and democratic legitimacy), the court will be slow to interfere. There are no grounds for the court to interfere with a system that involves an application form submitted to the second defendant that is not a VAF.[60]The ARAP application form is not designed as a VAF for the purposes of LOTR. As Underhill LJ held in S & Anr, para 26, “[T]he entire ARAP relocation procedure is sui generis and is quite inapt for the determination of the issues raised by a LOTR application.” Treating an ARAP application as an LOTR application – whether through a referral process or otherwise – would be inapt and would do nothing to promote effective immigration control.[61]Underhill LJ went on to hold in S & Anr, para 26, that “[t]he assessment performed by MoD staff following receipt of an ARAP form is directed solely to the applicant’s eligibility under ARAP itself. They could not determine the issues which are the basis of the LOTR application.” In the same way, the second defendant’s staff could not determine whether and when an ARAP application should properly be referred to the first defendant for a decision on LOTR. The ARAP route and the LOTR route are distinct.[62]It follows that the second defendant made no reviewable error of law for not sending the claimant’s ARAP application to the first defendant. Nor has the first defendant made a reviewable error of law by not setting up a referral system or by not permitting the use of a single form for both stages of the ARAP scheme. The unitary form argument fails.

Discussion: the separate form argument

[63]I turn to the separate form argument. The court in S & Anr left open the question of whether it was irrational for the first defendant not to provide a separate form for LOTR applications. In relation to this question, Underhill LJ stated obiter dictum (i.e. as a persuasive observation rather than as a matter of binding law):
“30. [I]t remains on the face of it very odd that applicants are required to use forms which are admittedly inappropriate, and it is not hard to see how applicants, particularly those without access to sophisticated advice, might be concerned that their application would be jeopardised by choosing a route which the Secretary of State believed matched their circumstances less closely than some other route and be puzzled how to answer questions that had no application to their circumstances. If, as Ms Giovannetti [Counsel for the Secretary of State] told us, the only reason for requiring the use of an inappropriate form was to have a vehicle by which applicants could be assigned a reference number and plugged in to the system for obtaining biometrics, why could that not be more straightforwardly achieved by providing a separate form for LOTR applications?”
[64]Underhill LJ’s observations were deployed by Mr de Mello to mount a systemic challenge to the first defendant’s procedures in so far as they do not provide a separate form for LOTR applications. As Ms Reeves submitted, the successive grounds for judicial review did not clearly set out a systemic challenge. It would not be fair to the defendants to determine such a challenge (with consequences going beyond this claim) when the claimant’s pleadings did not squarely raise one. I shall confine myself to the narrower – and concrete – task of considering whether the first defendant has made a public law error that touches on this particular case.[65]Ms Reeves relied on HR in which the court held that the first defendant had not acted irrationally or unfairly in requiring the family members of three Afghan nationals who had been evacuated to the United Kingdom under Operation Pitting to apply for entry under the LOTR policy (see in particular paragraphs 86 and 87 of the judgment in that case). Family reunion is an established route to the United Kingdom which may make it easier for family members to submit an application form that “most closely matches their circumstances.” The claimant is, however, a principal applicant and not a family member of someone living in the United Kingdom. I have therefore found HR to be of limited assistance.[66]On the facts of this case, Mr de Mello’s arguments have a superficial attraction. There appears on first analysis to be some logic in the argument that:(i) the ARAP application is not a VAF;(ii) irrespective of the outcome in other cases on other facts, there is no other VAF that this particular claimant could appropriately use to capture his claim for LOTR; so that(iii) the first defendant should produce a suitable VAF for people in his position to use for LOTR applications; failing which(iv) the Guidance requires the claimant to undertake an impossible task, such that(v) the Guidance is unreasonable in public law terms. This line of argument, however, overlooks important principles of immigration law and important strands of public law.[67]As I have mentioned, the LOTR Guidance is not applicable to protection claims. As a matter of law, the claimant is not able to make a protection claim from outside the United Kingdom. There are two legal sources of such claims. First, the 1951 Refugee Convention places obligations on States not to réfoule refugees. It is, however, an essential element of the refugee definition that a person seeking refugee status is outside the country of his or her nationality (see article 1A(2) of the Refugee Convention). The claimant is not outside Afghanistan and he cannot obligate the United Kingdom to accept him as a refugee. As a matter of international and domestic law, this route to protection is not open to him.[68]Secondly, the United Kingdom has obligations under the ECHR to protect people’s lives and physical integrity. In certain circumstances, these obligations extend to persons abroad but Mr de Mello accepted that ECHR obligations do not extend to the claimant in Afghanistan. As a matter of law, this route of protection is not open to him.[69]Mr de Mello very properly acknowledged these legal difficulties. He contended, however, that the first defendant was unreasonable not to operate a scheme that would allow persons in the claimant’s position to complete an application for LOTR on a form designed for ARAP applicants seeking to rely on compelling compassionate circumstances that did not amount to protection claims.[70]However, the substance of what the claimant’s solicitors said in the LBC, and the substance of what is asserted in the claimant’s documents as a whole, amounts to a protection claim. The claimant is, upon analysis, asking the court to grant relief in relation to administrative procedures which would have the effect of permitting him to avoid the territorial requirements of the Refugee Convention and the ECHR. The facts of the claimant’s case may be demanding of sympathy. It would, however, amount to impermissible judicial overreach for the court to grant relief in relation to a claim for protection, made opportunistically in an LBC, when the law demands that the claimant should be in the United Kingdom before a protection claim can get off the starting blocks. The grant of relief in these circumstances would not merely go outside the Immigration Rules: it would positively forego the requirements of the Refugee Convention, the ECHR and the Rules, thereby carrying the risk of a “parallel regime.”[71]It is not in the interests of immigration control for the claimant to be granted relief in relation to what is in substance a protection claim made through the side wind of an unsuccessful ARAP application. As Ms Reeves submitted, it was and is open to the claimant to formulate grounds for LOTR and to make an application for LOTR using the VAF that most closely matches the circumstances on which he relies. Until he has done so, and has been rejected, he has suffered no reviewable public law wrong.[72]This element of the claimant’s challenge fails.

Issue 3: Reasons for not providing a separate VAF

[73]As I understood his submissions, Mr de Mello contended that the reasons for not providing a separate application form for LOTR (as set out in the passages of Ms Gordon-Smith’s witness statement that I have cited at paragraph 11 above) were inadequate. In particular, they did not address the need to provide a route to obtaining LOTR without the payment of an application fee and without the provision of biometrics.[74]I am able to deal with this Issue in short terms. In my judgment, it adds nothing to the claim. The arguments made in its support amount to a different way of arguing Issue 2 and fall to be rejected for the same reasons. In any event, as Ms Reeves submitted, the claimant’s challenge under Issue 3 is a very broad one. There are no grounds to conclude that the court has any function in appraising the reasons for systems and processes at such a high level of generality. The systems are the responsibility of the first defendant and inapt for public law challenge (save on grounds of irrationality which are not made out in the present case).[75]This element of the claimant’s challenge fails.

Conclusion

[76]For these reasons, the claim as argued before me fails.

Cited in 4 later judgments