MXR, R (on the application of) v Secretary of State for Defence [2026] EWHC 1779 (Admin)

Neutral Citation Number: [2026] EWHC [2026] EWHC 1779 (Admin)Case No AC-2023-LON-003675
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14 July 2026
Before
MR JUSTICE JOHNSON
Between
THE KINGClaimantSECRETARY OF STATE FOR DEFENCEDefendant
Michelle Knorr (instructed by Birnberg Peirce Solicitors) for ClaimantDavid Blundell KC and Richard Evans (instructed by the Government Legal Department) for DefendantAlex Jamieson (instructed by Special Advocates Support Office) as Special AdvocateHearing Hearing dates: 24 and 25 June 2026
Approved JudgmentThis judgment was handed down by release to The National Archives on 14 July 2026
[1]The claimant challenges the defendant’s decision that he is not eligible for assistance under the Afghan Relocations and Assistance Policy (ARAP). Broadly, that policy permits relocation of a family member of someone who worked alongside the United Kingdom in Afghanistan if the family member is at an elevated risk of targeted attack as a result of that work.[2]The claimant’s brother worked in Afghanistan alongside the British military. When he was in Afghanistan the claimant was, as a result, at risk of targeted attack. The defendant did not make a timeous and lawful decision on the claimant’s application under ARAP. The claimant left Afghanistan in order to protect himself. He is now in the United States of America where, at least for the moment, he is safe. He says that the decision that he is ineligible for protection under ARAP is flawed, and should be quashed, because:(1) He is at risk in Afghanistan, and that is the test that the defendant should have applied.(2) At the time of the original decision, he was in Afghanistan and he was at risk. Although he had moved to the United States by the time of the operative decision, that decision should have been made on the basis of the risk at the time of the original decision.(3) In all the circumstances, the defendant should have exercised a residual discretion to find that the claimant is eligible.(4) The decision that the claimant is ineligible is irrationally inconsistent with a decision that the claimant’s brother, LR, is eligible.[3]There are outstanding applications under the Justice and Security Act 2013 to permit the defendant to withhold relevant material from the claimant. That material has been seen by the Special Advocate, Alex Jamieson. Following discussions with the Special Advocate, the Secretary of State gisted some of the material that had been withheld from the claimant. In the light of that helpful cooperation neither party asked the court to consider the material that had been withheld from the claimant in order to determine the issues in the case. At the time of preparing this judgment I have not seen the material. I will consider the material following the promulgation of this judgment in draft (but before it is handed down) in order formally to determine the applications under the 2013 Act.

Factual background

[4]The claimant is an Afghan national. He is the oldest brother of QR. QR was an Air Liaison Officer for the Special Forces of the General Command Police Special Unit in Afghanistan. He worked closely with British troops. It is common ground that QR’s work would now expose the claimant, if he was in Afghanistan, to a risk of targeted attack by the Taliban.[5]QR came to the United Kingdom in 2020. He was selected to attend a course at the Royal Military Academy Sandhurst. He was therefore already in the United Kingdom when Kabul fell to the Taliban in August 2021. Another of QR’s brothers, LR, was in Europe. The rest of the family, including the claimant, remained in Afghanistan. The claimant says that the extended family were repeatedly targeted by the Taliban after August 2021. The claimant was detained, interrogated about QR, and attacked with a machete, resulting in a fractured skull and head wounds. Photographic evidence has been provided. The defendant does not challenge this evidence.[6]QR submitted an ARAP application. In February 2022 he provided details of 14 family members for whom he sought relocation to the UK. They included the claimant. All of the additional family members were still in Afghanistan, apart from LR who was in Europe.[7]At around this time, data relating to ARAP applications, including the application made by QR and his family members, was leaked. There was a risk that the data would be made available to the Taliban. The Ministry of Defence took steps to mitigate the risks but did not at the time tell the data-subjects, including QR and the claimant, what had happened. Instead, it obtained an injunction to restrain publication of the fact that the data leak had occurred.[8]On 17 March 2022, the defendant notified QR that he was eligible for settlement in the UK under ARAP. He was issued with a residence permit on 8 April 2022. No decision was made, at this point, on the application for relocation of the family members.[9]In late 2022 or early 2023, QR’s family in Afghanistan, including the claimant, fled to Pakistan because of the serious risk to their lives in Afghanistan.[10]On 18 April 2023, the defendant refused the applications of all additional family members. This was on the basis that they were not dependent on QR for support and the case was not exceptionally compelling. On 1 July 2023, the additional family members exercised their right to seek a review of the decision. On 20 November 2023, the defendant issued a review decision which again refused the applications. In response to a pre-action letter intimating a claim for judicial review, this decision (which the claimant says was obviously defective) was withdrawn but no timeframe was given for the provision of a new decision.[11]On 12 December 2023, the claimant and other family members issued this claim for judicial review. At the time it was issued, the claim challenged the delay in the decision making.[12]On 1 January 2024, after what the claimant describes as almost two years of delay while he was at risk, and after being granted a visa to enter the United States of America, the claimant travelled to the United States. The claimant has been issued with a Permanent Residence Card (a Green Card) which is valid until 2034 when his leave to enter the United States is subject to renewal. The claimant’s evidence is that he went to the United States to wait in safety for the reconsidered ARAP review decision. He hoped to work to help QR support the other family members.[13]On 26 January 2024, the defendant made applications under sections 6 and 8 of the Justice and Security Act 2013 for a declaration that these are proceedings in which a closed material application may be made, and for permission to withhold sensitive material from the claimant (but on the basis it would be disclosed to the Special Advocates and the court).[14]On 29 July 2024, Foster J granted permission to claim judicial review and made a direction for expedition.[15]On 19 August 2024, the defendant filed detailed grounds of defence and proposed settlement on the basis that a review decision would be issued within 28 days.[16]On 5 September 2024, there was a hearing before Chamberlain J to determine the 2013 Act applications. The defendant undertook to make review decisions by 23 September 2024. The defendant also undertook to consider the impact of the data leak.[17]On 23 September 2024, the defendant issued review decisions. The claimant was again found to be ineligible. That was because, in the light of the fact that he was now in the United States, he was not at an elevated risk of targeted attacks. The other additional family members, including LR, were found eligible. This was because of an elevated risk due to the data leak. No distinction was drawn in this respect between LR, who was in the United Kingdom, and the other additional family members, who were not. There was, in this context, no reference to the fact that LR was in the United Kingdom and that there was no risk of him being returned to Afghanistan.[18]The additional family members then withdrew their claim for judicial review. Chamberlain J made case management directions to determine an application by the claimant for permission to amend his claim to challenge the decision of 23 September 2024.[19]On 10 December 2024, Garnham J refused permission to amend the grounds of claim.[20]On 16 June 2025, Elisabeth Laing LJ granted permission to appeal against the refusal of permission to amend the grounds of claim. The parties agreed that the matter should be remitted to the Administrative Court to proceed to a substantive hearing on what are the first three grounds of the claim.[21]In October 2025, disclosure was provided to the claimant which showed that LR had been found eligible for ARAP in September 2024 on the basis of an elevated risk to his safety. This prompted the claimant to apply to amend his grounds to add the fourth ground of claim. This fourth ground challenges the decision that the claimant is ineligible for ARAP on the basis that it is irrationally inconsistent with the decision that LR is eligible. On 23 January 2026, Sheldon J granted permission to rely on the fourth ground of challenge.[22]On 2 January 2026, the claimant’s solicitor wrote to the Government Legal Department to raise concerns about the security of his immigration status in the United States. The letter refers to reports that President Trump’s administration is re-examining the position of Afghan nationals who arrived in the United States during President Biden’s administration. The claimant’s solicitor maintained that the claimant was eligible under ARAP and asked the defendant to concede the claim.[23]On 30 January 2026, the defendant wrote to the claimant stating that he would not contest the fourth ground of challenge, because the 23 September 2024 decision and underlying decision notes did not provide reasons why the applications in respect of the claimant and LR had resulted in different decisions. The defendant stated that the claimant’s decision would be withdrawn and remade within 28 days.[24]On 1 February 2026, the claimant’s solicitor wrote to the defendant and questioned whether any reconsideration of the case could be meaningful unless the defendant adopted the claimant’s construction of the rules or considered an exercise of discretion in the claimant’s favour.[25]On 27 February 2026, the defendant issued a fresh decision, again finding the claimant ineligible under ARAP.[26]The 27 February 2026 decision states that the claimant has relocated to the United States, that he is a US Green Card holder, that he has lawful permanent resident status, that he is living an independent life in a safe country, and that he is therefore not at elevated risk of targeted attacks, specific threats or intimidation from the Taliban. The decision further states that no specific evidence was submitted to show that the claimant’s US residency status was insecure, or that it had been revoked, or that it was due to be revoked, and that as a Green Card holder he did not face a risk of deportation.[27]The caseworker notes record that the earlier decision in relation to LR was “likely incorrect” because it had involved an irrational assessment of risk, since LR was an asylum seeker in the United Kingdom with no real prospect of removal to Afghanistan. The notes state that the earlier eligibility decision for LR was being honoured, but that the claimant had no legitimate expectation of being treated in the same way.[28]The panel decision notes for the 27 February 2026 decision record that the panel agreed there is no risk to the claimant because he is living an independent life in the United States and is a Green Card holder. The panel also noted the earlier decision concerning LR and agreed that it was likely incorrect.

Legal and policy framework

[29]The operation of ARAP, and its relationship with the Immigration Act 1971 and the Immigration Rules, has been described by the Court of Appeal in R (LND1) v Secretary of State for the Home Department [2024] EWCA Civ 278; [2004] 1 WLR 3322 per Lewis LJ at [8] – [17], and by Farbey J in R (BYK) v Secretary of State for Defendant and another [2025] EWHC 235 at [6] – [17] and R (QP1) and another v Secretary of State for the Home Department and another [2025] EWHC 1388 (Admin) at [4] – [7]. It is also addressed in a witness statement of Máire Cairns, of the Defence Afghanistan Relocation and Resettlement directorate of the Ministry of Defence.[30]ARAP was announced on 29 December 2020 and launched on 1 April 2021. It closed to new applications on 1 July 2025. It provides for the relocation to the United Kingdom of certain categories of Afghan citizens (and their families), including those who are at serious risk as a result of working for the United Kingdom Government. The historical background was explained by Lewis LJ in LND1 as follows:
“16. Following the terrorist attacks against the United States of America on 11 September 2001, the United States led a military intervention against Al Qaeda groups and the Taliban Government in Afghanistan. The United Kingdom took part in the initial intervention. The military operation was subsequently supported by NATO and by a joint international force, known as the International Security Assistance Force or ISAF. The United Kingdom played a political, diplomatic and military role. Those activities continued between 2001 and 28 August 2021. 17. In May 2021, the Taliban launched a military offensive against the Afghan Armed forces. By 15 August 2021, the Taliban had seized control of Kabul. British and American forces retreated to Kabul airport from where they operated an emergency airlift for all NATO’s civilian and military personnel, other foreign nationals and certain Afghans thought to be at risk from the Taliban. Operation Pitting was the name given to the United Kingdom's operation to evacuate British nationals and others at risk. The final British flight left Kabul on 28 August 2021. The final American flight left on 30 August 2021. Taliban fighters entered the airport. A Taliban Government has been in control of Afghanistan since that date.”
[31]ARAP has been amended on a number of occasions since its introduction. In its original form, and up until 10 September 2021, an application under ARAP could only be made from within Afghanistan. At this point ARAP made provision for dependent family members (but not other family members). Rule 276BF1(ii) provided that all dependents included in the application must be in Afghanistan. On 4 August 2021, a joint letter from the Home Secretary and the Defence Secretary was published. The letter responded to criticisms about the restricted scope of ARAP and decisions made under ARAP, particularly in respect of Locally Employed Staff (“LES”). It said:
“We are pleased to confirm that we are making further changes to the rules to permit LES and their family members to make applications from outside Afghanistan. This will mean that those who have already left Afghanistan, or choose to do so in future, will automatically be eligible for relocation to the UK, rather than having to rely on exceptional circumstances and procedural fixes, as hitherto. We will do this by making changes to the Immigration Rules this Autumn, but will publish guidance imminently which will enable it to take effect immediately.”
[32]An explanatory note which accompanied the consequential change to the rules states:
“To reflect the changing security situation in Afghanistan, we are enabling current and former Afghan LES and their family members who are outside Afghanistan to relocate to the United Kingdom under the Afghan relocations and assistance policy and the ex gratia scheme. The schemes were previously only available to those in Afghanistan.”
[33]A Home Office factsheet stated:
“We have removed the requirement for applications to be made in Afghanistan, so those who are able to leave safely can do so without compromising their eligibility to settle in the UK.”
[34]An amendment was made to remove the requirement for an applicant to be in Afghanistan.[35]Decisions under ARAP are split between the Ministry of Defence (or, sometimes, possibly another Government unit) and the Home Office according to a two stage process. The first stage involves a determination by the Ministry of Defence as to the applicant’s eligibility under the policy. If the applicant is eligible, then the Ministry of Defence must submit an application for entry clearance to the Home Office within 12 months: ARAP 8.1, 10.1 and 14.1.[36]The second stage is the grant of entry clearance by the Home Office. That involves securing the provision of biometric data, and ensuring that there are no grounds to refuse entry clearance under Part 9 of the Immigration Rules. That process is applied to the principal applicant.[37]An equivalent two stage process is then applied to family members of the principal applicant. Again, it is first for the Ministry of Defence to decide that the family member is eligible, and then for the Home Office to make a decision as to entry clearance. The provisions are as follows:
“Relationship requirement for an additional family member [of] an eligible Afghan citizen ARAP 13.1. The applicant must be an additional family member of an eligible Afghan citizen or their partner. … ARAP 13.3. The additional family member must meet at least one of the following requirements: (a) as a result of the eligible Afghan citizen’s work for or with a UK Government department, the applicant must be at an elevated risk of targeted attacks, specific threats or intimidation; putting them at a high risk of death or serious injury;…”

ARAP 13.3. The additional family member must meet at least one of the following requirements:

[38]Published policy guidance in respect of this provision states:
“Compelling reasons must be provided why the additional family members would be at an elevated level of risk due to the work of the eligible Afghan citizen for or with the UK government in Afghanistan. This must be beyond any existing risk levels present in the country and must be connected directly to the work the eligible Afghan citizen carried out for, or with, the UK government in Afghanistan.”
[39]If the Ministry of Defence is satisfied that the eligibility requirements are met, then it must submit an application for entry clearance: ARAP 14.1.[40]An eligible Afghan citizen will only be granted entry clearance if they do not fall to be refused under Part 9 of the Immigration Rules. Part 9 of the Immigration Rules deals with general cases where entry clearance must be refused (for example, where the applicant is subject to an exclusion order or a deportation order).[41]A person who seeks to enter the United Kingdom as the family member of an eligible Afghan citizen under ARAP must first obtain entry clearance: ARAP 15.1. Where the Home Office is satisfied that the suitability and eligibility requirements are met, the application for entry clearance will be granted; otherwise, it will be refused: ARAP 16.1.

Grounds of claim

[42]If the claimant had remained in Afghanistan he would have been, and would remain, at elevated risk within the meaning of ARAP 13.3(a) (“elevated risk”) because of QR’s work. It follows that if the defendant had made a timeous decision, the claimant would have been eligible under ARAP and would then (subject to suitability checks) have been granted entry clearance. Because of the defendant’s delay, the claimant sought to avoid the elevated risk by leaving Afghanistan and going to the United States. He is not at any immediate risk in the United States. The defendant says that he is not at elevated risk and therefore does not fall within ARAP. The claimant challenges that decision on the four grounds identified at paragraph 2 above. In more detail:(1) This ground concerns the interpretation of ARAP 13.3(a). The claimant says that provision requires assessment of risk in Afghanistan (in other words a risk to the claimant if he were in Afghanistan). He therefore remains eligible even though he is currently safe in the United States because it is common ground that he would be at elevated risk in Afghanistan.(2) This ground concerns the point in time which is relevant when deciding whether an applicant is at elevated risk, specifically whether it is an elevated risk at the time of the first decision, or at the time of the decision which is under challenge.(3) This ground concerns the question of whether the defendant should have exercised a residual discretion in the claimant’s favour. The claimant says that there is a general unfairness in the defendant’s approach (that is, unlawfully delaying the decision and then reaching an adverse decision because of steps the claimant reasonably took in the light of the unlawful delay). He says that ought to have been reflected by the defendant exercising a residual discretion.(4) This ground concerns the difference in approach between the claimant’s brother, LR, who was granted entry clearance, and the claimant, who was not. The claimant says that they are in materially identical positions and that the inconsistency in treatment is irrational and therefore flawed on public law grounds. Submissions Ground 1: Interpretation of ARAP 13.3(a)

Submissions

[43]Michelle Knorr, on behalf of the claimant, submits that the words “elevated risk of targeted attacks, specific threats or intimidation” in ARAP 13.3(a), properly construed in the light of the context and purpose of ARAP, refer to the risk in Afghanistan (by which she means the risk to the applicant on the assumption that the applicant is in Afghanistan). She relies on the purpose of ARAP as a scheme concerned with Afghan citizens and family members placed at risk because of work with the UK Government in Afghanistan. She says that this construction is supported by the history of the scheme, particularly the change to enable applications to be made from outside Afghanistan. She also submits that the defendant’s construction is internally inconsistent because it purports to ask whether an applicant is at risk in their current location, while also taking account of the risk of removal to Afghanistan. On that basis, Ms Knorr submits the claimant should have been found eligible because he is at elevated risk in Afghanistan.[44]David Blundell KC, for the defendant, submits that ARAP 13.3(a) does not require an assessment of whether the applicant would be at elevated risk in Afghanistan. He says that, instead, the rule requires the decision-maker to assess whether the applicant is at elevated risk, taking account of all the circumstances including their actual location and any risk that they would be removed to Afghanistan. He relies on the use of the present tense in the rule (“must be”) and on the absence of any express wording requiring the risk assessment to be conducted on the hypothesis that the applicant is in Afghanistan. He says that assessing whether a person in a third country faces a risk of removal to Afghanistan is simply part of the ordinary assessment of whether that person is at risk. He says that because the claimant has relocated to the United States and has long-term lawful residence there, and is not at risk of removal to Afghanistan, he is not eligible for the protection provided by ARAP.

Ground 2: Timing of assessment

[45]Ms Knorr argues that the decision under challenge was a review of the original April 2023 eligibility decision, and that the defendant should therefore have considered whether the claimant met the criteria at the time of that original decision. At the time of the April 2023 decision, the claimant was in Pakistan, as were the other additional family members later found eligible. If his eligibility had been assessed as at that date he would have been approved. Alternatively, if the provisions are ambiguous as to the relevant date, fairness required the defendant to apply the provisions in the manner most favourable to him because of the long delay, the earlier refusals, and the fact that he moved to the United States only after waiting for a decision while he was at risk.[46]Mr Blundell responds that a review is a merits-based reconsideration and that the decision-maker is required to consider the applicant’s current circumstances at the time of the review decision. That is clear from the fact that a review process permits applicants to submit new evidence. It would be artificial to consider only past circumstances while ignoring subsequent developments. The claimant’s relocation to the United States, and his residence status there, are relevant matters which were properly taken into account when deciding whether he is eligible under ARAP.

Ground 3: Discretion

[47]Ms Knorr submits that even if the claimant did not meet ARAP 13.3(a), the defendant had a discretion to find him eligible despite the fact that he is safe in another country. She says that a residual discretion has been exercised in other cases, including the case of LR who was found eligible despite being in the United Kingdom and being assessed as not at risk. She says that the relevant factors included the claimant’s eligibility at the time of earlier decisions, the delay in the process, his having suffered harm and fled from Afghanistan and then Pakistan, the favourable decision in LR’s case, and the insecurity of his United States immigration status. She says that the defendant failed to consider those matters properly, or at all, when deciding whether discretion should be exercised in the claimant’s favour.[48]Richard Evans, who responded to this ground of challenge on behalf of the defendant, submits that ARAP is a discretionary or ex gratia scheme established under prerogative powers, that it does not make any provision for the exercise of a residual discretion, and that there is no obligation to consider an exercise of discretion outside the stated ARAP criteria. He says that the decision in LR’s case did not involve an exercise of discretion; his case was treated as an eligibility decision under the criteria, although the defendant now says that the decision in LR’s favour was likely incorrect. It remains open to the claimant to make an application to be permitted to enter the United Kingdom by way of the exercise of a residual discretion, outside the rules, but such an application has not been made.

Ground 4: Irrational inconsistency

[49]Ms Knorr argues that the claimant and LR are in materially similar positions. They are both outside Afghanistan in safe countries, and both are assessed as not being at elevated risk in their current locations. Yet LR was found eligible and the claimant was found ineligible. She says that the defendant failed to provide a rational basis for this difference in treatment and failed properly to consider whether the claimant’s case should be treated in the same way as LR’s.[50]Mr Blundell responds that the claimant’s case was reconsidered on its own merits and that there is a rational explanation for treating him differently from LR. LR’s favourable decision was likely incorrect given that LR was an asylum seeker in the United Kingdom with no real prospect of removal to Afghanistan. LR was therefore not at elevated risk. The defendant argues that the claimant had no legitimate expectation of benefiting from the same error, and that it was not unfair or irrational to avoid repeating that error in his case.

The decisions(s) under challenge

(s) under challenge

[51]The operative decision is the decision made on 27 February 2026. The claimant also seeks to challenge the earlier decision of 23 September 2024. Any challenge to that decision is academic because it has been overtaken by the decision of 27 February 2026. It does not, however, make any material difference, at least as far as the first three grounds are concerned, because the decisions (and the grounds on which they are challenged) are materially identical.

Ground 1: Interpretation of ARAP 13.3(a)

[52]The issue between the parties is whether ARAP 13.3(a) applies to(a) those who are, in fact, at an elevated risk, or(b) those who would be at an elevated risk if they were in Afghanistan.[53]The correct interpretation of ARAP 13.3(a) is an objective issue for the court. It does not depend on the Secretary of State’s subjective intention. Rather, it is for the court to discern the intention of the Secretary of State when making the rule based on the language of the rule construed against the relevant background: MO (Nigeria) v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230 per Lord Hoffmann at [4], Mahad v Entry Clearance Officer [2009] UKSC 16; [2010 1 WLR 48 per Lord Brown at [10] – [12], R (Wang) v Secretary of State for the Home Department [2023] UKSC 21; [2023] 1 WLR 2125. The relevant background includes that ARAP 13.3(a) is a statement of the Secretary of State’s administrative policy. It also includes that ARAP was intended to show commitment and the payment of a debt of gratitude to those who had supported the United Kingdom in Afghanistan: LND1 at [8], QP1 at [4]. It also includes the changes that have been made to the policy over time.[54]The natural wording of the rule requires an elevated risk to be established, but it does not impose any limitation as to where the risk must arise, or where the applicant must be located. In the paradigm case, an applicant will be in Afghanistan and will be at elevated risk within Afghanistan. However, nothing in the wording of the rule prevents it from operating if an applicant is in another country but is likely to be removed to Afghanistan and to be at elevated risk there. There is no inconsistency between, on the one hand, the risk having to be assessed in the light of the applicant’s actual circumstances (whether or not they are in Afghanistan), and, on the other hand, the decision-maker, when assessing risk, being required to take account of any possibility that the applicant might be returned to Afghanistan. The whole concept of risk involves a forecast of future events. A person can be at a current risk, in their current location, on the forecast basis that they may be removed to Afghanistan where they might be subject to targeted attack. All of this is adequately encompassed within the wording of ARAP 13.3(a). That is consistent with general principles of public law as to the degree of specificity required of immigration rules and the need for certain policies to be published: R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208 per Lord Hope at [57] and Lord Dyson at [94], R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 per Lord Dyson at [26] and [34]. The requirement to establish an elevated risk is sufficient to encompass a risk that may materialise following forced removal. It all falls within the general concept of “risk”. That is also reflected in the use of language in the claimant’s written argument where it is said that in early 2023 when the family were in Pakistan:
“They were, however, still at serious and increasing risk in Pakistan, including due to the risk of removal back to Afghanistan.”
[55]Nor does anything in the wording of the rule prevent it from operating if the applicant is in a neighbouring country, perhaps close to a porous border, and is at elevated risk there. In other words, there is nothing in the internal language of the rule that suggests that it should be applied on the assumption that the applicant is “in Afghanistan” or that it should be limited to only considering risks that arise “in Afghanistan”. Rather, the natural interpretation of the wording of the rule is that the decision-maker must decide, on the facts as they are, whether the applicant is at an elevated risk.[56]If the draftsman had wished the question of elevated risk to be answered on the basis of a contrived assumption that the applicant is in Afghanistan, rather than on the basis of the fact that he is not, the rule would have been drafted in a different way:
“as a result of the eligible Afghan citizen’s work for or with a UK Government department, the applicant mustwould be at an elevated risk if he were in Afghanistan.”
It may be noted that where, within the ARAP rules, there was intended to be a limitation in relation to location (and specifically a limitation to events that took place in Afghanistan), that is explicitly stated. Thus, the words “in Afghanistan” appear in rule ARAP 3.4, 3.5(a)(i), 3.6(a)(i) (“…directly employed in Afghanistan…”), 3.5(a)(ii) (…provided linguistic services… in Afghanistan”), 3.5(b) (“the UK’s operations in Afghanistan”), 3.6(a)(ii) (“provided goods or services in Afghanistan…”) and 3.6(a)(iii) (“worked in Afghanistan”). Conversely, where the rules require an assessment of risk, that assessment is not limited to a risk that would arise if the individual were in Afghanistan: rule ARAP 3.3(b)(i), 3.4(b), 3.6(c)(i), 3.6(c)(ii), 13.3(a).[57]There is nothing in the background context that compels an interpretation of ARAP 13.3(a) which would run contrary to the natural meaning of the words. The fact that it was premised on the repayment of a debt of gratitude does not show an intention that the rule should operate in the way that the claimant suggests. If repayment of a debt of gratitude were the only consideration then there would be no requirement for an applicant to show that they are at an elevated risk at all. The “debt of gratitude” rationale explains why the UK Government decided to provide assistance to certain Afghan nationals, but the elevated risk requirement limits the ambit of those to whom the Government considered the debt of gratitude should be paid. In principle, a choice fell to be made about the scope of that ambit. The potential options included providing assistance to(1) anybody who had helped the government in Afghanistan, and their families; or(2) those who would face an elevated risk if they were in Afghanistan, irrespective of whether they are in Afghanistan or whether there is any prospect of them being removed to Afghanistan; or(3) those who are, in fact, at elevated risk. The language of ARAP 13.3(a) shows that the draftsman chose option (3). This is consistent with the claimant’s own description of the purpose of the rule:
“ARAP is a special scheme concerned specifically with Afghanistan and designed to honour the service and reward Afghan citizens who worked with and supported the UK Government in Afghanistan during the military intervention that followed the September 2001 terrorist attacks in the USA, and are now at risk as a consequence.”
In other words, the policy is designed to protect those who are at risk. It is not intended to protect those who are not at risk but who would, in different circumstances, be at risk.[58]That does not produce a surprising, far less an absurd, outcome. It is clear that part of the purpose of the rule is to introduce an element of protection against risk. If an applicant is not, in fact, at any risk (perhaps because the risk would only arise in Afghanistan, and they are not in Afghanistan and there is no prospect of them being returned to Afghanistan), then the need for protection falls way. Conversely, if the applicant is, in fact, at risk outside Afghanistan (perhaps because they are in a neighbouring country, close to a porous border, and there is a risk of an extra-territorial reprisal attack by the Taliban) then a need for protection does arise.[59]The drafting history of rule 13.3(a) does not assist the claimant. The removal of a requirement that an application could only be made from Afghanistan does not mean that the scheme was to be applied as if the applicant were still in Afghanistan. Rather it allows such a person to benefit if they are at elevated risk even though they are outside Afghanistan (for example, because they are close to a porous border and are at risk in that location, or because there was a risk that they will be returned to Afghanistan). The explanations for the change explains the removal of the requirement for the application to be made while the applicant is in Afghanistan. Nothing in the explanations removes the requirement for the applicant to show that they are at risk.[60]I therefore dismiss this ground of challenge.

Ground 2: Timing of assessment

[61]It is common ground that review decisions must be made in accordance with the ARAP provisions that were in force at the time of the initial decision. The issue between the parties is whether a decision-maker who carries out a review should assess the risk at the time of the claimant’s initial application, or at the time of the initial decision, or at the time that the decision maker made the decision, or whether the decision maker has a discretion to choose between these different options.[62]There is no separate test for a decision-maker who carries out a review as opposed to the decision-maker who makes the original decision on an application. In both instances, the decision-maker is required to apply the test in ARAP 13.3(a).[63]The wording of the rule shows that the risk falls to be assessed at the time of the decision that is being made. That is because the rule uses the present tense (“must meet”, rather than “must have met”).[64]There is nothing in the background or context to suggest that anything else was intended. The requirement for the risk to exist at the time of the operative decision reflects the policy intention to provide protection to those who are at risk. If the position were otherwise, then an applicant who was not at risk at the time of the application and/or an initial refusal of the application, but who was at risk at the time of the operative decision, would not be eligible. That would lead to a protection gap. Conversely, an applicant who was not at any risk whatsoever, but had been at a historical risk at the time of the initial application and/or the initial refusal, would be entitled to protection that they did not need.[65]Further, the context shows that it was intended that a review should assess the up to date risk on the basis of up to date evidence, rather than the historical risk. That is because a person who seeks a review may “supply new evidence to support their case.” Although that could be read as being limited to the supply of new evidence to support a historical risk there is no reason to apply such a restrictive approach. It is more natural (and in keeping with the policy intent) to recognise that the ability to supply new evidence extends to evidence that shows that there is now an elevated risk even though there was no elevated risk before.[66]This is consistent with the approach taken to asylum claims. In R (TN (Afghanistan)) v Home Secretary [2015] UKSC 40; [2015] 1 WLR 3083 per Lord Toulson at [70] – [72]:
“70. I turn next to Ravichandran [1996] Imm AR 97 and Rashid [2005] Imm AR 608. The principle in Ravichandran is sound. As Simon Brown LJ said in that case, on an asylum appeal the subject matter is whether the appellant requires refugee protection. The function of the court is quite unlike its function when adjudicating, for example, on a private law claim for breach of contract or tort. A claimant who establishes that there has been a breach of contract or tort is entitled to be put, so far as the court is able to do so, in the same position as if the wrong had not been committed. In Ravichandran the court rightly held that on an asylum appeal the question is one of present status: does the appellant meet the criteria of the Refugee Convention or is he in need of humanitarian protection? 71. …In Rashid [[2005] Imm AR 608] the sloppiness of procedures in the Home Office resulted in the appellant being unfairly denied refugee status when he applied for it; but refugee status is not bound to endure for ever. By the time that his case reached the Court of Appeal the source of persecution in Iraq had been overthrown, and the effect of the court’s decision was to give him a right which he did not need for his personal protection. Because the Rashid exception to Ravichandran lacks a satisfactory principle, it is also impossible to state its scope with any degree of clarity… 72. I would hold that the Ravichandran principle applies on the hearing of asylum appeals without exception, and Rashid [2005] Imm AR 608 should no longer be followed. The question whether the appellant qualifies for asylum status is not a question of discretion. It is one which must be decided on the evidence before the tribunal or court, and there is no legal justification for approaching that question with a presumption that the appellant is credible arising from a failure of the Secretary of State properly to discharge her obligation in relation to family tracing. Discretionary leave by definition involves a discretion, but it is a discretion which belongs to the Secretary of State and not to the court. The Secretary of State must of course exercise her discretion lawfully, with proper regard to any policy which she has established, but I agree with Sir Stanley Burnton that it is not proper for a court to require the Secretary of State to grant unconditional leave to an appellant who would not be entitled to such relief under current policy (or have a current right to remain in the United Kingdom on other grounds, such as article 8), as a form of relief for an earlier error or breach of obligation.”
[67]That this is the approach that is applied in practice is confirmed by Ms Carins in her statement:
“The reviewer takes into account the current situation in relation to the individual requesting the review. This provides the fairest and most generous remedy to individuals seeking a review. This means that if an individual’s current circumstances do not satisfy the ARAP criteria, they are not eligible even if they may have been historically eligible. This is because that individual no longer requires the protection of ARAP.”
[68]The decision-maker was therefore correct to assess the risk at the time of the decision. I therefore dismiss the claim under ground 2.

Ground 3: Residual discretion

[69]The defendant has not considered exercising any residual discretion to find the claimant eligible under ARAP and/or to grant him entry clearance notwithstanding his ineligibility.[70]It is common ground that a decision as to whether to grant entry clearance under ARAP is regulated by the Immigration Rules. There is a dispute between the parties as to whether the anterior decision as to whether an applicant is eligible under ARAP is regulated by the prerogative or by the Immigration Rules. The defendant submits that it is regulated by the prerogative. Mr Evans points to the fact that although the Immigration Rules set out the eligibility criteria, they do not themselves contain any requirement to make a decision on eligibility in accordance with those Rules. He says that this analysis is supported by authority: R (BYK) v Secretary of State for Defence [2025] EWHC 235 (Admin) per Farbey J at [51], R (QP1) v Secretary of State for the Home Department [2025] EWHC 1388 (Admin) per Farbey J at [6].[71]There is force in the defendant’s submission, but it is unnecessary to resolve the question of whether eligibility decisions are formally made under the prerogative or under the rules. Whether or not eligibility decisions are made under prerogative or statutory powers, there is no general power, within the terms of ARAP, to exercise a residual general discretion to find an applicant is eligible notwithstanding that they do not satisfy the requirements.[72]The claimant points to ARAP 8.2, but that provision provides that an application which does not meet all the validity requirements may be rejected as invalid. Even if that can be read as giving a residual discretion to consider an application that does not meet the validity requirements for the making of an application, that is different from a discretion to find a person eligible under ARAP when they do not meet the eligibility requirements. There is no provision equivalent to ARAP 8.2 to give rise to such a residual discretion. Nor is there any evidence that, as a matter of practice, the defendant has exercised a residual discretion in individual cases. The decision in LR’s case was based (correctly or otherwise) on the ARAP provisions; it did not purport to be an exercise of a residual discretion. Ms Cairns, in her statement, recognises that exceptions to ARAP have been introduced (such as in respect of family member of “ARAP eligible principals who are deceased”). However, these are clearly identified policy positions. They are not the type of individualised exercise of residual discretion that the claimant seeks.[73]I therefore dismiss the claim under ground 3.[74]That does not leave the claimant entirely without a remedy. If the defendant is right and eligibility decisions are made under the prerogative, then it is still open to the claimant to make an application for leave to enter the United Kingdom outside the rules. If the defendant is wrong, and questions of eligibility are regulated by the Immigration Rules then, again, it would be open to the claimant to make an application for leave to enter the United Kingdom outside the rules. Such an application has not been made.

Ground 4: Irrational inconsistency

[75]A public law decision may be unlawful if a decision maker treats a case inconsistently with another like case, without a rational basis for the inconsistent treatment: R (McMorn) v Natural England [2015] EWHC 3297 (Admin); [2016] PTSR 750 per Ouseley J at [149].[76]The decisions made on 23 September 2024 in respect of the claimant and LR were made by the same decision maker at the same time. The two decisions are mutually inconsistent. That is because the claimant and LR are in materially the same position: they are both outside Afghanistan, they would both be at risk in Afghanistan, but neither of them are at a current risk of being returned to Afghanistan. If LR was correctly recognised as eligible then it follows that the claimant is also eligible and that the decision that he is not eligible could not stand. Conversely, if the claimant is ineligible then it logically follows that LR is also ineligible and the decision that he was eligible was flawed.[77]The answer to this is that the defendant now acknowledges the unexplained inconsistency and has withdrawn the 23 September 2024 decision in respect of the claimant. That decision has been taken afresh. In taking the decision afresh, the decision-maker has taken account of the decision made in respect of LR. The decision maker rationally concluded that decision was likely incorrect, and that on a proper application of ARAP LR ought not to have been found eligible. It follows that the decision that the claimant is ineligible under ARAP does not amount to an irrational inconsistency with the decision that LR was eligible. On the contrary, having permissibly concluded that the decision in LR’s case was wrong, it was rational for the decision-maker to reach a different decision in the claimant’s case. Although the logical consequence is that the decision in LR’s claim is flawed, Mr Blundell made it clear that there is no intention to revoke that decision.[78]There is no separate inconsistency in respect of the decision to find other family members eligible. Although (like the claimant) they were outside Afghanistan at the time, they were (unlike the claimant) in Pakistan and at risk of deportation from Pakistan to Afghanistan.[79]I therefore dismiss ground 4.

Outcome

[80]The claim is dismissed.