BA, R (on the application of) v Secretary of State for the Home Department & Ors

At the permission stage, a judicial review claim is arguable where public authorities may have applied overlapping relocation and humanitarian-leave policies as exhaustive criteria, thereby treating a specific threat to a family member’s life and limb as legally irrelevant.

Policy guidance must be interpreted in its wider context. A later interpretation document may not displace broader guidance unless it clearly occupies the whole field. Where the guidance recognises exceptional circumstances, unjustifiably harsh consequences, or threats to family members, those matters may require consideration by the decision-maker. The court’s role remains supervisory: it does not assess the risk itself or substitute its decision for that of the primary decision-maker.

The claimant, the brother of an Afghan female judge evacuated to the United Kingdom, sought judicial review concerning three matters: his failure to be called forward for evacuation in August 2021, the reconsideration of that decision in November 2021, and a requirement relating to biometric data for a visa application.

Permission had previously been refused on the papers. The renewed application challenged the categorisation of the judge’s case under the Afghan Relocations and Assistance Policy and the Leave Outside the Immigration Rules arrangements. The central issues were whether the applicable policy instruments had been correctly identified and interpreted, whether the claimant’s alleged risk to life and limb was a legally relevant consideration, and whether evidence concerning the operation of the schemes should be admitted at the substantive hearing.

1. Permission granted. The claimant crossed the permission threshold because Grounds 1–4, concerning the applicable policy instruments and the reconsideration decision, were properly arguable. Ground 5, concerning the practical impossibility of satisfying the biometrics-related application process, was also arguable.
2. The court was not determining the merits or evaluating the claimant’s risk. Those matters remained for the primary decision-maker. The supervisory question was whether the decision-maker had correctly interpreted the relevant policies and addressed matters which public law required it to treat as legally relevant.
3. The reconsideration panel had treated the security threat faced by an individual family member as not being an eligibility criterion. That raised an arguable public law error. The Afghan Relocations and Assistance Policy guidance recognised genuine and verifiable safety concerns and threats to specific family members as capable of constituting exceptional circumstances. The Leave Outside the Immigration Rules guidance referred to compelling compassionate factors, exceptional circumstances, unjustifiably harsh consequences and relevant family members.
4. It was arguable that the interpretation document, including its cumulative criteria for dependent male siblings, was a reference document rather than an exhaustive code. It was also arguable that it did not displace the broader guidance or prevent consideration of a specific risk to life and limb. The court identified a possible congruence between the Afghan programme and the Leave Outside the Immigration Rules route, under which risk to life and limb could remain a legally relevant consideration.
5. The court rejected any proposed direction requiring the defendants to provide a targeted explanation. If the claim proceeded, the defendants would decide what response and evidence were necessary for the substantive hearing.
6. The claimant’s evidence from Raphael Marshall was retained before the court on a de bene esse basis. Its admissibility was deferred because relevance and admissibility were closely connected and could be assessed properly at the substantive hearing.
7. The anonymity order continued. Detailed grounds were ordered by 4pm on 1 February 2022, the substantive hearing was to be expedited, and costs were reserved.

This was a renewed first-instance application for permission for judicial review. Permission had been refused on the papers by Lane J on 9 December 2021. The present court granted permission and directed an expedited substantive hearing.