AK & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs & Anor

A non-statutory ex gratia assistance scheme may lawfully adopt clear eligibility criteria, even though those criteria create hard cases. Where the scheme balances protection against wider considerations, such as immigration control and operational effectiveness, it need not assist every person exposed to risk through a connection with the state. A minimum service requirement and distinctions based on direct employment may be rational if they have some nexus to the scheme’s purposes and are not presented as a complete definition of risk. The court may scrutinise such a policy anxiously, particularly where threats to life are relevant, but must respect political judgments falling within the executive’s constitutional role.

Three related applications sought permission to challenge an ex gratia scheme for locally employed staff of British armed forces and civilian missions in Iraq. The claimants had worked for the British state or its contractors, had left Iraq for Syria after threats or insecurity, and had been recognised by the UNHCR as refugees.

Two claimants failed to satisfy the requirement of 12 months’ service. The third failed because his relevant employment was indirect or fell outside the scheme’s temporal and employment criteria. The claimants argued that the criteria defeated the scheme’s protective purpose and were irrational, discriminatory and unfair. The court also considered whether exceptional consideration outside the scheme remained possible.

1. Permission refused. The court considered whether there was a seriously arguable case that the scheme was unlawful, applying, without finally deciding the point, a heightened Wednesbury standard and anxious scrutiny.
2. The scheme was not designed solely to protect every person at risk because of a connection with British forces. It represented a balance between protection, recognition of service, immigration control, operational effectiveness and the practical administration of assistance. The absence of a domestic or international legal duty to adopt such a scheme was relevant.
3. The 12-month service requirement and the distinction between direct and indirect employment were not irrational merely because persons outside the criteria might face comparable risks. The criteria had some nexus to length of association, proximity to the British state and the nature of work. Bright lines inevitably produce hard cases, but objective limits may be necessary for officials to administer a policy consistently. The approach was consistent with the principle illustrated by AL (Serbia) v SSHD [2008] UKHL 42.
4. The decision-makers were entitled to prefer certainty through objective criteria over an open-ended exception for hard cases. The existence of some fact-sensitive assessment under the Gateway Scheme did not alter the fundamental character of the policy.
5. The policy did not unlawfully fetter the Home Secretary’s residual discretion to consider compelling or exceptional immigration representations outside the scheme. A person who failed to satisfy the policy could not thereby expect a favourable exercise of that discretion.
6. AA’s case raised separate and compelling considerations. His marriage to a British citizen settled in the United Kingdom potentially engaged continuing obligations under Article 8, including consideration of the proportionality of spousal separation. The judge did not determine the precise immigration obligations but hoped that the Secretary of State would reconsider the case.

The applications were refused. No application for costs was made; detailed assessment of publicly funded costs was permitted.

• Administrative Court: Permission had previously been refused on the papers in WA’s case. The renewed application, together with the direct permission applications in the other cases, was refused by Mr Justice Blake under [2008] EWHC 2227 (Admin).