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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> HR & Ors, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 786 (Admin) (11 April 2024) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2024/786.html Cite as: [2024] EWHC 786 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
(sitting as a High Court judge)
____________________
| THE KING On the application of HRHR2 (A minor by their adult sister HR acting as a litigation friend)FR (A minor by their adult sister HR acting as a litigation friend) |
Claimants |
|
| - and – |
||
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
|
| and |
||
| (1) MMR (2) BHF (3) MYR (4) MOR (5) SPELTHORE BOROUGH COUNCIL |
Interested parties |
____________________
Mr T Tabori (instructed by the Government Legal Department) for the Defendant
Hearing dates: 7 and 8 November 2023 and 5 March 2024
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
Sir Peter Lane:
HR
is the eldest of the three and is now 24 years old.
HR2
is now 17 years old. FR is now 15 years old. At the time that they were evacuated,
HR
and her sisters were respectively aged 22, 15 and 13.
HR
has effectively become the de facto guardian of
HR2
and FR while in the UK.
state
that as a result of the difficult circumstances and attacks at the airport at the time when they travelled there with their other family members, they became separated from the rest of their immediate family. As a consequence, the claimants were evacuated without their other family members. The claimants say they were told to proceed towards the flight as young women/children whilst the parents and brothers were told to wait.
v
SSHD, SSFCA and SSD [2023] 1 WLR 896, paragraphs 27(b) and (c), and 172(a). The defendant understands that the claimants were simply evacuated together from Kabul in August 2021, without the other family members. The defendant cannot speculate as to why.
stated
that this is under 'ALES' – 'Afghanistan Locally Employed Staff'. This was subsequently corrected and the defendant re-issued ILR to them on 26 June 2022 with the confirmation that this was under the Afghan Citizens Resettlement Scheme ('ACRS').
"You submit that representations were sent directly seeking Family Reunion for the interested parties on 21 December 2022, and that there has been no response to these representations at the time of drafting. You do not appear to have made an application for entry clearance, and you have not provided a GWF reference number of a copy of any application forms which one would expect to see had avisa
application been formally submitted. All that has been provided in the bundle accompanying your letter before action is a letter dated 21 December 2022 letter that was sent to the following email address:
Afghanresettlementinforequests@homeoffice.gov.uk sent, no trace of formalvisa
application"
HR2
and FR are under 18, but the precise eligibility and cohort for this policy has not yet been finalised. The defendant's intention is to begin to accept referrals under this route in the first half of 2024.
vulnerabilities
of this cohort there is a need to properly consider safeguarding requirements which could impact delivery timelines. The additional period is justified in light of ensuring that any route that is established prioritises the best interests of children."
statement
from Dr Peter Illing. Also on that day, the defendant notified the court and the claimants of the existence of further material that needed to be disclosed pursuant to candour, that the defendant wished to disclose now, but which could only be disclosed into CLOSED proceedings. D therefore applied to adjourn in order to make this application under section 6 of the Justice and Security Act.
statement
explaining (a) when the defendant's legal representatives at GLD first became aware of the Ministerial Submission; (b) the reasons for not disclosing it to the claimants sooner; (c) when the defendant's legal representatives with conduct of this litigation first became aware of the further material and its relevance to this claim; (d) "further information as to any data held by the D, or other Departments of HMG, or referrals made to the same, as well as the sources of any such data and referrals, that presumably supported the summary of the 'background' at [3] (noting that this is information (at least in part) that the claimant requested as part of her Part 18 request and which was not provided by the defendant". I also gave the claimants permission to file amended grounds subsequent to the defendant filing that
statement
and gave the defendant permission to file amended grounds of defence thereafter.
statement
from Dr Illing, addressing the questions set by the court, as well as the reasons for the Ministerial Submission stating that the Refugee Resettlement and Integration Unit were aware of around 80 children evacuated during Operation Pitting, when the defendant's Part 18 response
stated,
in answer to the question "Can the SSHD confirm the number of children evacuated through Operating Pitting, who became separated from their parents during the operation/evacuation?", that "The Home Office does not hold data for this category".
statement
addressing (a) the reasons why the Ministerial Submission was not disclosed earlier by the defendant to the claimants; (b) the reasons why the information contained in the Ministerial Submission, in the absence of the Ministerial Submission itself being disclosed, was not disclosed earlier in correspondence and/or the defendant's pleaded defence; (c) when and why the need for a recommendation, leading to the Ministerial Submission was identified inter alia with regard to the claimants' case and by whom; (d) the steps taken and by whom leading to the Ministerial Submission and when; and (e) concerning the position of the defendant's legal representatives.
statement
of facts and grounds. On 14 December 2023, I made a further order, pursuant to the claimants' application, directing that Dr Illing provide a third
statement.
statement
from Dr Illing, a
statement
from Kara Minto-Simpson and a
statement
from the defendant's solicitor with conduct, Moshe Bordon.
LEAVE OUTSIDE THE RULES POLICY
states,
under the heading "Applying overseas for LOTR":
"Applicants overseas must apply on the application form for the route which most closely matches their circumstances and pay the relevant fees and charges. Any compelling compassionate factors they wish to be considered, including any documentary evidence, must be raised within the application for entry clearance on their chosen route. Any dependants of the main applicant seeking a grant of LOTR at the same time will need to apply separately and pay the relevant fees and charges. An ARAP form cannot be used to apply for LOTR (see Afghanistan Relocations and Assistance Policy (ARAP)).
…
Important principles
A grant of LOTR should be rare. Discretion should be used 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 their application must mean it would not be proportionate to expect the person to remain outside of 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 and meet the requirements of the category under which they are applying – including paying any fees due.
Considerations of whether to grant LOTR should not undermine the objectives of the rules or create a parallel regime for those who do not meet them.
Where you consider LOTR, you must have regard to part 9 grounds for refusal within the Immigration Rules and refer to the general grounds for refusal guidance.
…
Reasons to grant LOTR
Compelling compassionate factors are, broadly speaking, exceptional circumstances which mean that a refusal of entry clearance or leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, refugee convention or obligations. An example might be where an applicant or relevant family member has experienced personal tragedy and there is a specific event to take place or action to be taken in the UK as a result, but which does not in itself render refusal an ECHR breach.
Where the Immigration Rules are not met, and where there are no exceptional circumstances that warrant a grant of leave under Article 8, Article 3 medical or discretionary leave policies, there may be other factors that when taken into account along with the compelling compassionate grounds raised in an individual case, warrant a grant of LOTR. Factors, in the UK or overseas, can be raised in a LOTR application. The decision maker must consider whether the application raises compelling compassionate factors which mean that the Home Office should grant LOTR. Such factors may include:
- emergency or unexpected events
- a crisis, disaster or accident that could not have been anticipated
LOTR will not be granted where it is considered reasonable to expect the applicant to leave the UK despite such factors. Factors, in the UK or overseas, can be raised in a LOTR application. These factors can arise in any application type." (emphasis added)
states,
in respect of applications for LOTR, under the heading "In respect of children and those with children":
"The application of this guidance must take into account the circumstances of each case and the impact on children, or on those with children, in the UK. Section 55 of the Borders, Citizenship and Immigration Act 2009 places an obligation on theSecretary
of
State
to take account of the need to safeguard and promote the welfare of children in the UK when carrying out immigration, asylum and nationality functions.
In practice, this requires a consideration to be made of the best interests of the child in every decision that has an impact on that child. This is particularly important where the decision may result in the child having to leave the UK, where there are obvious factors that adversely affect the child, or where a parent caring for the child asks us to take particular circumstances into account. All decisions must demonstrate that the child's best interests have been considered as a primary, but not necessarily the only, consideration. Caseworkers must bevigilant
that a child may be at risk of harm and be prepared to refer cases immediately to a relevant safeguarding agency where child protection issues arise."
CASES INVOLVING AFGHANISTAN
v
SSFCA [2022] EWHC 1402 (Admin) ("S") concerned judges in Afghanistan prior to the events of August 2021, seeking judicial review of the refusal to consider their applications made to the Ministry of Defence under the ARAP as
visa
applications for LOTR. It was not in dispute that the claimants were at risk of serious harm or death at the hands of the Taliban: paragraph 1. They had applied under ARAP and, in the alternative, had applied to be granted LOTR. The SSHD declined to consider granting LOTR on the basis that they had not submitted
Visa
Application Forms ("
VAF").
Lang J held that it was irrational for the SSHD not to allow the applicants to apply using the ARAP forms: paragraph 133, and was followed in SH
v
SSFCDO and SSHD [2022] EWHC 1937 (Admin) (Eyre J), paragraph 5. On the general requirement to lodge an application form at all, however, importantly for the present case, in S, Lang J affirmed the logic of the SSHD's policy requirement that applications for LOTR be made on the
VAF
for the
visa
most closely matching an applicant's circumstances:
"130. I agree with the Claimants' submission that there is an obvious reason why LOTR policy directs that applications be made on the form for thevisa
type which most closely matches their circumstances. That is because any compelling compassionate circumstances will be decided by reference to the IR which most closely matches their circumstances, and the criteria in the rules which they are unable to meet."
v
SSHD and SSD [2022] EWCA Civ 1092 ("S and AZ"), the Court of Appeal:
a. Allowed the appeal against the conclusion that it was irrational to reject the applications for LOTR because they were made in the ARAP online application form: §27-28, 34; and
b. Upheld Lang J's decision that it was irrational and procedurally unfair to refuse to considervisa
applications without prior attendance at a
Visa
Application Centre for biometric enrolment, with no option for waiver or deferral, and S and AZ did not want to take the risk of making a false entry on the form, which they were advised to do by GLD: paragraphs 34-35. The Court of Appeal however noted that this defect had been remedied since Lang J's decision, with the online application form amended to allow applicants to request waiver or deferral of the requirement to submit biometric information when they make their application: paragraph 22.
statement
of the purpose of requiring submission of a
VAF:
"14. The requirement that applicants for LOTR must apply "on the application form for the route which most closely matches their circumstances" is at the heart of the issues on this appeal, and I will return to it below. But it is convenient to note at this stage that Ms Giovannetti explained that the essential purpose of the requirement that the applicant should use one of the onlineVAFs
was simply so that the application could be dealt with under the Home Office's automated system for dealing with applications, with an assigned reference number and access (among other things) to the procedure for the provision of biometrics as described above. That being so, it was in truth a matter of indifference which online route the applicant selected as most closely matching their circumstances. By definition many of the boxes in the form would be inappropriate to the basis on which they were seeking leave, which they would be expected to explain in the "additional information" box. She told us on instructions that in practice applications would not be rejected on the basis only that a form more closely matching their circumstances could have been chosen."
"… it remains on the face of itvery
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 jeopardized 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 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?".
v
SSHD, SSFCDA, and SSD, CO/1876/2022,
via
a witness
statement
of Ms Sally Weston of the Home Office. That case was settled but Ms Weston's
statement
was filed in connection with the present proceedings and is considered below.
v
SSHD [2023] EWHC 87 (Admin), the claimant submitted that the defendant acted irrationally in requiring the claimant to submit her application for LOTR in an online
VAF
which did not match her circumstances: KBL, paragraph 104, relying on Underhill LJ's obiter consideration of this requirement in S and AZ at paragraph 30. Lang J declined to find irrationality, stating: "[S]ince the Court of Appeal gave "careful consideration" to this point, but decided that it would not be appropriate to find irrationality on this basis, I do not consider that I can now find for the Claimant on this ground.".
v
SSD and SSHD [2023] EWHC 284 (Admin), the court considered the evidence of Ms Weston and further information from the defendant regarding the "free text" box in all
VAFs:
paragraphs 108-109. At paragraphs 121-127, the court held that it was rational for the defendant to require applicants seeking LOTR to use the most closely connected
VAF,
notwithstanding it being "distinctly sub-optimal" for the claimants to have to use a
VAF
for a category of leave whose requirements they could not meet (paragraph 127).
EVIDENCE REGARDING THE CLAIMANTS
statements
have been filed from the claimants' aunt and uncle, detailing the difficulties the claimants have experienced since being separated from their parents and brothers. Evidence from an independent social worker, a GP and a psychiatrist concerns the stress and resulting medical problems for the claimants arising from the separation and the circumstances of the claimants' accommodation in the UK, involving bridging hotel accommodation. There is also evidence of a neck injury to the claimants' mother, following an attack by the Taliban and evidence that the brothers are receiving anti-depressant medication.
THE MINISTERIAL SUBMISSION AND THE WITNESS
STATEMENT
OF KARA MINTO-SIMPSON
visa
applications. Initial analysis had begun into possible digital options for delivering the route. There may, however, be cases where it would not be in the best interests of children for the parent to be brought to the UK. Funding would need to be provided to enable local authorities to carry out required safeguarding assessments through trained social workers.
visa
and immigration routes. The submission did not recommend Option 3 because "parents would only be able to apply through existing
visa
routes, such as Appendix FM of the Immigration Rules. Most, if not all, of the parents involved would be unlikely to satisfy the requirements of this route. While they may go on to be granted under article 8 [of the ECHR] this is not guaranteed."
44. Under the heading "Media and parliamentary handling", the Ministerial Submission recognised that "there is a chance that the number of Afghan children in the UK by themselves will be made public leading to criticism about why we did not allow them to reunite with their parents sooner… There is also a risk that comparisons will be made with UASCs and whether we will apply the same policy to this group of children". The Submission advised that it would be explained that "our policy is only for children evacuated from Afghanistan while reminding on safeguarding and welfare concerns if we allowed children to sponsor parents, which could encourage more young people to come over on small boats".
statement
is dated 19 December 2023. It is heavily relied on by the claimants; in particular in respect of Ground 1 of the grounds of claim. Ms Minto-Simpson is the Policy Lead for Pathway 1 of ACRS and Operational Policy issues relating to the ACRS scheme. Her
statement
addresses the process of preparing the Ministerial Submission. Ms Minto-Simpson led the team responsible for preparing the Submission.
Statement
("ARIPS") was published in September 2021. Whilst Ms Minto-Simpson:
"… was able to establish that a route under Appendix FM existed that could be used for parents to be reunited with their children in the UK, the route may not align with parents with the same form [of] permission to stay and conditions as their children, such as the right to work, education and access to public services, who have been resettled under the ACRS and would not be aligned with the ARIPS to provide parents with eligibility to the ACRS. The need for a ministerial decision on a route that would allow the parents of children who were evacuated without them as eligible individuals on the ACRS was identified when it became clear that this cohort was not covered by the ARIPS. I first became aware that there was such a cohort when operational colleagues sent a query to policy colleagues in May 2022… I made a number of initial enquiries with relevant policy teams to establish high level details, including but not limited to understanding if any existing immigration route could be used for this cohort" (paragraph 4).
various
subject matter experts and legal advisers. The bulk of meetings took place between June 2022 and December 2022. A spreadsheet recording known cases of children evacuated without their parents was shared with Ms Minto-Simpson in July 2022. "Due to the complexity of the children without parents advice I was advised, along with my policy colleague who was drafting the submission, in March 2023 that the issues should be split into two separate submissions" (paragraph 7).
50. Ms Minto-Simpson says that her understanding of the reference in the Ministerial Submission to there being "no
viable
route" referred to "the lack of a clear route within the Immigration Rules for children evacuated without their parents … It is not the case that there were no mechanisms which could be used but that existing routes may not easily be identified by applicants to allow parents seeking to join evacuated children in the UK with ACRS eligibility and the same form of leave under the scheme". That was expanded upon later in the same paragraph of the Ministerial Submission. Ms Minto-Simpson says that:
"For example, applicants might try to apply under Appendix FM, fail to meet the eligibility criteria as a matter of course while not appreciating what evidence they need to satisfy a decision-maker that a refusal would result in unjustifiably harsh consequences for a relevant child… For an overseas applicant to be considered for LOTR, for instance, an application must first be made under the Rules such as (for example) Appendix FM. It is acknowledged within the LOTR guidance that a person may not meet all the criteria of a route but people should apply to the route that most clearly meets their criteria. Even if the parents do not meet all of the criteria there would be decisions on a case-by-case basis that would determine if a grant of leave was given and what grant of leave was given. As policy lead, I did not think entirely utilising existing routes would fulfil the publicly-stated
ACRS eligibility intent of Ministers as set out in the ARIPS" (paragraph 11).
THE GROUNDS OF CHALLENGE
statements
by Ministers, in response to written questions, including the
statement
on 17 March 2023 that "Following the evacuation of Kabul any children who we became aware of in the UK that were not with their parents, have been dealt with on a case by case basis. Where this has happened, we work in close collaboration with social services and the relevant local authority". On 30 March 2023, the Immigration Minister said "For those evacuated from Afghanistan under the ACRS without their immediate family members, further information will be made available in due course about options for reuniting with them. We are unable to provide a target date at this time."
statements,
on the basis that this infringed the prohibition in article 9 of the Bill of Rights 1689 on calling Parliamentary proceedings into question. As reformulated in December 2023, the grounds of claim
state
that these
statements
are no longer relied upon in connection with Ground 1. Whether the claimants have disavowed all reliance upon the Ministerial
statements
is, however, disputed by the defendant. I shall return to this in due course.
55. Ground 1 asserts that in the light of the "policy announcements, recommendations and policy decisions and the particular
vulnerabilities"
of the claimants, "expecting the interested parties to apply under the Immigration Rules in the closest matching online application forms, with all the procedures that this entails including the payment of fees or the making of fee waiver applications, is irrational and unfair." There are said to be good reasons in the claimants' case to be flexible with the defendant's entry clearance requirements. The Ministerial Submission recognises that it is widely acknowledged to be in the best interests of children to be with their parents. The Ministerial Submission did not recommend Option 3, which was "Do nothing and allow parental reunification only through existing
visa
and immigration routes … Under this option, parents would only be able to apply through existing
visa
routes, such as Appendix FM of the Immigration Rules. Most if not all, parents involved would be unlikely to satisfy the requirements of this route. While they may go on to be granted under article 8 this is not guaranteed."
HR,
who suffers from depression and moderate Post-Traumatic Stress Disorder ("PTSD").
HR2
has been diagnosed with, inter alia, severe PTSD. Without family reunification, treatment is unlikely to be effective. FR has struggled at school in the UK.
visas,
in circumstances where the defendant has confirmed that a bespoke route will be implemented. The Ministerial Submission does not recommend doing nothing. A failure in these circumstances to consider exercising discretion is "irrational, unfair and unlawful, particularly in light of the timescales that have elapsed". The defendant is said to have demonstrated an ability to exercise such discretion, as evidenced by the actions taken by the defendant to grant leave to the Afghan Girls' Development Football Team.
very
least, since the request made to the defendant on 21 December 2022.
DECIDING THE CLAIM
Ground 1
visas
on the form and under the Immigration Rules that most appropriately fit their circumstances, and invoking the defendant's LOTR policy. The defendant submits that the closest categories would be entry clearance as a parent under Appendix FM to the Rules and, for the brothers, entry clearance as an adult dependant relative (Appendix Adult Dependant Relative). The parents could seek to rely on GEN 3.2 and both the parents and the brothers could
state
on the form that, insofar as they do not fulfil each requirement of the relevant category, they also seek LOTR, setting out any compelling circumstances they wish to be considered as justifying LOTR, including any documentary evidence. If necessary, they could apply for fee waivers and biometric discretion. The submissions regarding section 55 of the 2009 Act that feature in the claimants' Ground 2 could be made in support of the applications for entry clearance.
statement
of Sally Weston (Head of the Home Office's Simplification and Systems Unit in the Migration and Borders Group), originally filed in connection with another case but provided also in these proceedings, explains that the requirement is not only a matter of good and efficient administration but is imposed "with a
view
to applicants being treated fairly". The
visa
application process "involves an integrated system which aims to be efficient and where possible automated to make consideration of applications manageable and which easily enables identification of the type of application for the appropriate Home Office officials to consider". Mr Tabori also points out that the applications process prevents spurious applications being submitted by the same person using multiple identities.
67. These are not considerations to be brushed aside, even where the facts of the individual case are apparently demanding of sympathy. Requiring the process to be followed creates a "level playing field" for all applicants, many of whom might possess characteristics equally demanding of sympathy. It furthermore minimises the potential for error. There is also the important point that the LOTR policy involves consideration not only of whether a grant of leave is required in order to avoid a breach of article 8 of the ECHR (and so a breach of section 6 of the 1998 Act) but also whether there are compelling compassionate factors which mean that a refusal of entry clearance "would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8…".
statement
dated 19 October 2023. She issued a call for evidence in August 2023 regarding LOTR applications and fee waiver applications in the context of applications by family members of individuals who were evacuated from Afghanistan and/or relocated to the UK following the Taliban takeover in 2021. She refers to the Parliamentary Ministerial
statements
mentioned earlier. She highlights the English language requirement in Appendix FM. Ms Bantleman received only a small number of responses to her call for evidence.
Very
few ILPA members said they had made LOTR applications specifically for individuals evacuated during Operation Pitting who had been granted leave under ACRS P1. Even fewer had made applications to join family members with separated children in the UK. She considers that factors including the lack of sufficiently clear and detailed guidance, confusion experienced by applicants and many representatives, the unclear merits of success under Appendix FM and LOTR, the difficulties of finding legal aid representatives with capacity for complex human rights applications and the promise of a new policy/route for family members may have individually or cumulatively have contributed to the low response rate due to ACRS P1 evacuees waiting for a route to open rather than risking an application that would be difficult to navigate.
statement
dated 19 October 2023. He says that the fees chargeable if the interested parties applied under the adult dependant relative route would be £12,100 for a
visa
application "for which they are
very
clearly not eligible". Mr Bell considers it would be
very
difficult for the family to meet the requirements that permit them even to seek to make an application for fee waiver. MMR does not have a bank account and is paid his income by cheque, which he then cashes. MMR would not be able to provide any of the evidence suggested in the fee waiver guidance.
view
that persons in the position of this family might be waiting for the new route to open supports the defendant, as Mr Tabori's alternative submission to the LOTR route is that the claimants can use the new route as soon as it becomes available, as to which the defendant's case is that this is anticipated to be in the first half of 2024. As Mr Tabori says, the defendant and the claimants are, in this regard, pushing in the same direction.
visa
application route.
visa
and immigration routes. This was because most if not all parents would be unlikely to satisfy the requirements of this route; and "While they may go to be granted under article 8, this cannot be guaranteed."
statement,
summarised at paragraphs 45 to 50 above. The claimants say that her
statement
and the Ministerial Submission serve to distinguish the line of cases referred to at paragraphs 31 to 37 and 66 above. They also serve to distinguish cases such as R (Celik)
v
SSHD [2022] Imm AR 1438, which recognise that the defendant is entitled to require those wishing to make human rights claims within the meaning of the Nationality, Immigration and Asylum Act 2002 to do so by means of the application process laid down by the defendant.
visa
application/LOTR route; and that, by the same token, the use of such a route cannot constitute an adequate alternative remedy. To draw such a conclusion would constitute an unwarranted incursion by the courts into administrative decision-making. Government policy is entitled to alter in order to meet changed factual circumstances, or to reflect a new way of approaching the same such circumstances. In neither case does the pre-existing policy fall to be
viewed
as unlawful in public law terms, merely because the new policy is regarded as in some way "better" than its predecessor. If it were otherwise, officials would be likely to avoid recommending that Ministers alter their policies and Ministers would likely be reluctant to accept any such recommendations, for fear of legal challenges being brought to decisions made under the previous policy. The resulting "chilling effect" on the operation of government would be profound.
visa
routes such as Appendix FM of the Immigration Rules. Most if not all of the parents involved would be unlikely to satisfy the requirements of this route. While they may go on to be granted under article 8, this is not guaranteed." I am not satisfied that this renders irrational the defendant's present policy to require an application for a
visa
and the operation of the LOTR policy. It is important to realise that any decision under article 8 ECHR will involve a broad evaluation, as opposed to an exercise involving hard-edged rules. There may, accordingly, be scope for
variations
in decision-making in cases involving article 8, which are unlikely (or at least less likely) to feature in purely rules-based decisions. Article 8 ECHR nevertheless is a rational tool for the defendant to give consideration to members of the cohort. The lack of a "guarantee" that article 8 will always produce the same result as a bespoke rules-based system does not mean it is irrational for the defendant to use the ECHR. Indeed, since 2011 many aspects of the Immigration Rules incorporate what are, in effect, article 8 assessments and therefore are, to that extent, more susceptible to differences in outcomes. The ability of the defendant to achieve appropriate outcomes
via
the present process is reinforced by the fact that consideration is required by the LOTR policy to be given to the presence of compelling compassionate factors, which are not such as to mandate a grant of leave by reference to article 8.
statement
that contradicts the above or otherwise serves to support the claimants' case. Her explanation of the evolution of thinking leading to the Ministerial Submission is in accord with what is to be found in the Submission. Importantly, at paragraph 11, she is clear that it "is not the case that there were no mechanisms which could be used but that existing routes may not be easily identified by applicants to allow parents seeking to join evacuated children in the UK with ACRS eligibility and the same form of leave under the scheme". She gives an example of an applicant "not appreciating what evidence they would need to satisfy a decision-maker that a refusal would have unjustifiably harsh consequences for a relevant child". Her conclusion as policy lead was that she "did not think entirely utilising existing routes would fulfil the publicly-
stated
ACRS eligibility intent of Ministers as set out in the ARIPS".
statement
is a paradigm example of the way Government policy evolves. The move to a policy which better reflects current Ministerial thinking and which has the improvements described by her in no sense means that the existing policy should, as a general matter, be regarded as unlawful.
statements
and expert medical evidence.
statement
of Elloise Gordon, dated 19 April 2022, explains that the defendant considered there to be exceptional circumstances in the case of the Team, including their young age, gender, enhanced risk from the Taliban as a girls' football team who have followed Western
values,
combined with their media profile, and that they were an identifiable group located together in Lahore. Apart from age and gender, there is nothing directly comparable in the present case. The claimants can therefore do no more than submit that their overall position is cumulatively as serious and compelling as that of the Football Team. But it is obvious that other conclusions can rationally be drawn.
86. The claimants submit that the evidence in the present case supports the court considering and determining Underhill LJ's observation in paragraph 30 of S & AZ that there could be more straightforward means of achieving LOTR applications: see paragraph 33 above. Underhill LJ's observation was, in fact, the significantly narrower one that "requiring the use of an inappropriate form … could be more straightforwardly achieved by providing a separate form for LOTR applications." Doing this, however, would not meet the claimants' case, which is that the interested parties should be granted entry clearance without having to go through the LOTR process at all.
statement
of Ms Minto-Simpson did not render the defendant's decision to require the making of an application irrational or unlawfully unfair.
Ground 2
91. In R (Kent CC)
v
SSHD [2023] EWHC 3030 (Admin), Chamberlain J held, at paragraph 36, that the section 55 duty "is not breached simply because (in the
view
of the court) the relevant functions could have been exercised in a way that better safeguards and promotes the welfare of children. The question for the court is whether the Home
Secretary
made arrangements for ensuring that, when the functions were exercised, the persons exercising them had regard to the specified need". In R (FA (Sudan)
v
SSHD [2021] 4 WLR 22, the Court of Appeal was concerned with the "destitution domestic
violence
concession" operated by the SSHD. The concession did not distinguish between those with and without children. At paragraphs 71 and 72, the Court (per Singh LJ) held that section 55 "is a process duty and does not dictate any particular outcome in a case like the present … 72. Section 55 does not in my
view
require the
Secretary
of
State
to contradict the fundamental rationale for the Concession … if the policy were to be extended in the way which the appellant seeks to do, that is the effect of what would happen".
92. R (DM)
v
SSHD, UNHCR intervening [2023] EWHC 740 (Admin) was a judicial review of what was said to be the SSHD's "ongoing decision that parents and siblings of refugee children will not be entitled to family reunion on the same basis as the spouses and children of adult refugees under the Immigration Rules". Amongst other things, the claimant sought a declaration that the SSHD "has failed to comply with her duty … under section 55 of the Borders, Citizenship and Immigration Act 2009" (paragraph 3). The claimant's case was that, although it was not necessary to identify precisely the point when the SSHD had discharged a relevant function or functions, there were several occasions since the coming into force of section 55 on 2 November 2009 when she had done so; including publishing family reunion guidance and laying before Parliament
statements
of changes in Immigration Rules in which paragraphs concerning family reunion were deleted and re-enacted (paragraph 112). The SSHD's case was that she had not since 2 November 2009 discharged a function, such as by making a rule or subordinate legislation, and that it would be a significant extension of section 55 to hold that it applies where the SSHD did not propose to make any changes to her current policy or practice (paragraph 113).
93. At paragraph 120, Lavender J held that the relevant function was making Immigration Rules and that, in the case before him, that function had been discharged in 2000, long before section 55 came into force. At paragraph 121, Lavender J held that "the question for consideration in this case is whether the
Secretary
of
State
discharges a relevant function when she gives active consideration to the question whether to change the Immigration Rules in a particular way, even if her decision is not to make the proposed change." In deciding the matter, Lavender J had regard to the judgment of the Divisional Court in R (Adiatu)
v
HM Treasury [2021] 2 All ER 484. That case concerned whether the HM Treasury had failed to comply with the public sector equality duty in section 149 of the Equality Act 2010 in connection with the introduction of certain measures occasioned by the Coronavirus pandemic because it failed to consider other options that were said to have been more beneficial to women and BAME workers. The Divisional Court held at paragraph 242 that the exercise of functions for the purposes of section 149 "consists of the implementation of the measures that the public authority decides upon … A public authority must have regard to the equalities implications of the steps that it intends to take. It need not have regard to the equalities implications of other steps, which it is not taking, and is not even considering…".
94. At paragraph 133 of DM, Lavender J held that the SSHD discharges a function when she makes a change in the Immigration Rules and that, in order to discharge that function the SSHD has to consider from time to time whether to make any and, if so, what changes: "It seems to me that when she decides to choose one option rather than another, including the option of making no change to the Immigration Rules, she is discharging her function of reviewing the Immigration Rules and considering and deciding whether to change them in one or more ways". At paragraph 137, Lavender J rejected the claimant's "ongoing decision" argument, holding that a "decision is an act or event, not an ongoing
state
of affairs…". Noting at paragraph 140 that the evidence was that "the
Secretary
of
State
and Home Office ministers, have not given active consideration since 2 November 2009 to the policy option of changing the Immigration Rules so as to create a route to family reunion for refugee children," Lavender J concluded that the SSHD had not since that date exercised a relevant function for the purposes of section 55. He accordingly dismissed that ground of challenge.
statements
of Dr Illing and Ms Minto-Simpson, the claimants contend that the need to take specific action in respect of children evacuated from Afghanistan without their parents has been known since May 2022, when officials first became aware there was such a cohort. Some 80 children were understood to be in that position. Thus, the defendant has been in breach of section 55, as the defendant failed to act in a timely manner and even now has not implemented the policy recommended in the Ministerial Submission.
state
of affairs. Whilst Lavender J found that, on the facts of the case before him, the section 55 duty arises when the SSHD engages in or gives "active consideration" (paragraphs 133 and 140), there may be difficulty in identifying both the point in time at which active consideration begins, and whose active consideration counts. In the present case, I consider that the engagement of section 55 could not be said to take place until the formulation of the Ministerial Submission. That was the point at which official thinking was comprehensively articulated, having been refined by the processes described by Ms Minto-Simpson. To fix engagement of section 55 at any earlier time would be incoherent, as there was no decision-making on the part of the defendant to which the duty could adhere. The Ministerial Submission gives express consideration to the best interests of children.
very
reason why officials began their deliberations. That the process was, at least in part, driven by section 55 considerations is evident from the Ministerial Submission, with its specific reference to the best interests of children. All this is plain, without needing to require the defendant to "disclose the steps that led to the formulation of the policy recommendation", over and above what is in the defendant's witness
statements.
In short, section 55 considerations have informed the process which has led to the defendant's decision to accept Option 1 and create a new route.
view
of how rapidly policy decisions involving children should be formulated and implemented. To hold otherwise would be to treat the section as more than a "process" duty. It would also undermine the rationale set out above for the rejection of Ground 1.
Ground 3
Statements,
as to which the defendant invokes article 9 of the Bill of Rights. In the case of Ministerial
statements,
article 9 will not be infringed where reliance is placed merely on the reasons given in the
statement
for the particular decision under challenge: R (Project for the Registration of Children as British Citizens and others)
v
SSHD [2021] 1 WLR 3049. The claimants also rely upon Office of Government Commerce
v
Information Commissioner [2010] QB 98 for the proposition that reliance may be placed on evidence of proceedings in Parliament simply to allege the occurrence of "historical facts or events", as opposed to "questioning" what was said, which includes submissions as to the legal effect of the
statement.
The claimants' contention that they are merely relying upon "reasons" or "factual" aspects of the
statements
cannot be right. The claimants' case is squarely that the
statements
gave rise, or helped to give rise, to a legitimate expectation. That involves questioning the legal effect of the
statements
and so calling the
statements
into question.
statements
were each that "further information will be available in due course". The
statements
were not saying when the policy would be announced or what it would contain. The
statements
were, thus, promises of further information. Furthermore, the
statement
of 17 March 2023, which specifically addressed the situation of children evacuated to the UK without their parents, said that such cases "have been dealt with on a case by case basis. When this has happened, we work in close collaboration with social services and the relevant local authority." The thrust of this
statement
was therefore about looking after the children in the UK, rather than about family reunification.
Statement
("ARIPS") of September 2021
stated
at paragraph 6 that for those evacuated to the UK, the Government was "determined to ensure that they have the best possible start to life in the UK". Indefinite leave to remain would be given to Afghans and their family members who were evacuated, called forward or specifically authorised for evacuation. Paragraph 7 said that given the speed with which decisions were necessarily taken, there might be "a small number of groups who do not fit into the category set out above. We will work to ensure that their situation is resolved quickly."
105. The Afghan Citizens Resettlement Scheme was described in the document, beginning at paragraph 21. The ACRS aims to resettle "up to 20,000 people at risk, with 5,000 in the first year. This is in addition to those brought to the UK under ARAP …". Under the heading "Further details on eligibility", paragraph 29
stated
that "Spouses, partners and dependent children under the age of 18 of identified eligible individuals will be eligible for the scheme. Other family members may be resettled in exceptional circumstances".
statement
at paragraph 29 is expressed at a high level of generality. In R (GA)
v
SSHD and others [2023] EWHC 871 (Admin), Bourne J rejected a claim that the three ACRS Pathways announced on 1 June 2022 had failed to implement Ministers' policy intentions identified in Ministerial
statements
and the ARIP policy document. At paragraph 54, Bourne J held that "the defendants did not make a clear, unambiguous and unqualified representation that the claimant would be entitled to have her case individually considered under ACRS, within any specific timescale or at all." Likewise, in our case, on no proper reading can the passages in ARIPS/ACRS relied on by the claimants be regarded as making such a representation.
Ground 4
v
SSHD [2018] EWCA Civ 1812 to the effect that fairness in decision-making is important in order to avoid the sense of injustice that an applicant will otherwise feel: "a person is entitled to be treated fairly at all relevant decision-making stages" (paragraph 94).
visa
and invoke the defendant's LOTR policy. Any delay has been due to their refusal to avail themselves of this course.
view
the appropriate starting point, this was 21 September 2023. The advice was accepted by the defendant on 11 October 2023 and the new pathway is said by the defendant to open in the first half of 2024. In no sense can this be said to be an irrational timeframe. In the circumstances, the decision to accept Option 1 in the Ministerial Submission plainly could not be expected to be immediately followed by the new pathway opening to applicants. As the Submission made plain, suitable criteria and processes need to be designed to deal with the risk that the new route could be exploited by those falsely claiming a relationship with children in the UK. It was also assessed to be likely that there will be parents with genuine reasons for why they do not have access to the documents necessary to meet the evidential requirements.
Secretary
of
State
must have acted sooner to implement the policy, which I shall take to be before the adjourned hearing of this judicial review. I have examined above the evidence of Ms Minto-Simpson. She describes a process which the claimants and perhaps others would regard as too leisurely, but which is far from being systemically dysfunctional or otherwise so flawed as to be irrational. As Mr Tabori pointed out, even maladministration is not synonymous with irrationality.
Ground 5
view
that representations sent to an email box does not constitute a formal
visa
application. The SSHD cannot fetter her discretion on an application that has not been formally lodged." The defendant accordingly had the fact of discretion firmly in mind but refused to exercise it for the good reason (as I have found) that there was another way by which the issue of entry clearance could be addressed.
Ground 6
DUTY OF CANDOUR
statement
of 8 November 2023, filed during the hearing of the case that month, accepts that the response to the first Part 18 request was wrong. The Home Office did possess data on children separated from their parents during Operation Pitting. What Dr Illing considered, on reflection, should have been said in response to the request was that "for the sake of completeness the Home Office holds details of over 80 Afghan minors identified as evacuated and separated but the relevant list does not enable the Home Office to confirm numbers of children evacuated during Operation Pitting who became separated during that process".
124. In his second witness
statement,
dated 4 December 2023, Dr Illing says he was asked to consider why the rough and incomplete estimate of separated children in the Ministerial Submission dated 21 September 2023 was not considered an answer to Question 1 of the Part 18 request. He says "The short answer to that is that the Home Office cannot confirm any number in that category because the category is too wide…The rough number … was referenced in the submission (and caveated) as being the sole indication known which could provide ministers with a sense of the possible scope of the issue. It is not a firm enough number to constitute data suitable for publication or to confirm a number to ministers."
statement,
dated 19 December 2023, Dr Illing says that the reason why the "guesstimate" in the Ministerial Submission was not disclosed earlier "remains that of chronology. The Home Office Detailed Grounds and reply to the original Part 18 request were filed before the Submission was escalated." Furthermore, the information was not considered to be an answer to Question 1 of the Part 18 request because that asked how many children had become separated during the operation/evacuation and as Dr Illing said in his first
statement,
that was not known. Nevertheless, paragraph 6 of the third
statement
reiterates the point made in the first
statement
that "with hindsight the guesstimate should have been provided for the sake of completeness but I do consider that the number would have required so much in the way of caveat and explanation as to reduce the weight to be placed on it in the context of public litigation."
statement.
The duty of candour is ongoing in nature. The quotation above from paragraph 6 of that
statement
is important. If it is indicative of the reasons why the information was not disclosed, it represents a misunderstanding on the part of the defendant that requires correction. The guesstimate was plainly relevant to the claimants' judicial review. The size of the cohort was relevant to the extent of the problem facing the defendant and thus to the ways in which the defendant might lawfully deal with it. The fact that the figure would need to be caveated was emphatically not a reason for the defendant to withhold it from the claimants. The weight to be placed on relevant evidence is a matter for the court, having heard submissions from the parties. It is not for the defendant unilaterally to prejudge that issue by refusing to disclose evidence that he considers is lacking in weight. It should have been disclosed, along with any caveats that the defendant wished to add. In the present case, there is also the obvious point that the figure was considered of sufficient relevance to be featured in the Ministerial Submission.
statement
of Ms Minto-Simpson, has much of the claimants' case proceeded. Although I have found against the claimants, it cannot in any sense be said that the Ministerial Submission was irrelevant or that its substance was covered in the defendant's response to the second Part 18 request.
v
SSHD [2020] PTSR 1785, where at paragraph 14 it was
stated
that "We would also wish to avoid any suggestion that the duty of candour and co-operation requires a government department to disclose in court proceedings what may be simply early thinking about a possible policy, still less what is confidential advice given by civil servants to ministers." He also relied on R (JM)
v
SSHD [2022] PTSR 260 for the proposition that there is no blanket requirement under the duty of candour to disclose ministerial submissions. In that case, however, Farbey J held that "There was no duty on the defendant to provide the emails or the ministerial submissions per se; but the substance of the information in the documents which shed light on the decision-making process in my judgment fell to be disclosed as a matter of candour. The late disclosure was regrettable" (paragraph 91).
Note 1 Originally, only
HR was the claimant but an application to add the other claimants was subsequently granted. For ease of reference, the second and third claimants are hereafter referred to as such, regardless of whether they were interested parties at the time in question. [Back]