S (R on the application of) v SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVELOPMENT AFFAIRS & Ors

Consistency and equal treatment are aspects of public law rationality, rather than freestanding grounds of review. Materially different treatment requires a rational justification.

An overseas leave application process may be irrational and procedurally unfair where no prescribed form corresponds to the applicants’ circumstances, the process effectively requires false or misleading answers, or administrative convenience is prioritised over acknowledged risks of serious harm. Where legislation permits biometric enrolment to be waived or deferred, the application process must provide a rational and fair means of seeking that dispensation.

Eligibility under a relocation policy remains governed by its terms at the date of decision. Membership of an at-risk occupational group does not itself establish eligibility where the policy requires individual work for or alongside the United Kingdom Government.

Two Afghan judges sought judicial review of decisions concerning entry to the United Kingdom following the Taliban takeover. Both faced an acknowledged risk of serious harm or death because of their judicial work. Their applications under the Afghan Relocations and Assistance Policy were refused because they had not shown the required work for or alongside the United Kingdom Government.

The claimants compared themselves with judges admitted under that policy or granted leave outside the Immigration Rules during Operation Pitting. They also challenged the refusal to consider their own applications for leave outside the Rules. The prescribed online forms did not correspond to their circumstances, and the forms required biometric arrangements which could not safely be made from Afghanistan.

The issues were whether the different treatment was irrational or otherwise unlawful, and whether the procedural requirements imposed on the leave applications were irrational or contrary to the applicable policy.

1. The claims succeeded in part. The challenges to the refusals under the Afghan Relocations and Assistance Policy failed. The decisions refusing to consider the applications for leave outside the Immigration Rules on procedural grounds were unlawful and were quashed.

2. An Afghan judge could qualify under the relocation policy, but judicial status alone was insufficient. Eligibility required a case-specific assessment of whether the policy criteria were met. The judges admitted under the policy had material connections with the United Kingdom’s work, including relationships with government officials, institutional support and sponsorship. Those features rationally distinguished them from the claimants. The policy decisions were therefore not irrational through inconsistency.

3. The selection process for leave outside the Rules during Operation Pitting was likely to have been inconsistent and arbitrary. It favoured people supported by influential lobbying under an unpublished process. There was no rational distinction between the claimant judges and five comparator judges selected through that process. Both claimants could have met the emergency criteria had their names been put forward. Nevertheless, those criteria ceased with Operation Pitting, and there was no substantive leave decision capable of being quashed.

4. Under section 3 of the Immigration Act 1971, the Home Secretary retained discretion to grant leave outside the Rules. The applicable policy required overseas applicants to use the form for the route most closely matching their circumstances. The route which most closely matched these claims was the Afghan relocation route. The alternative work, study, visit and family forms did not remotely correspond to their circumstances.

5. Requiring the claimants to use unsuitable forms and enter false or misleading information was irrational and procedurally unfair. It exposed them to potentially grave immigration consequences and created a risk that their compassionate circumstances would not receive meaningful consideration. Administrative inconvenience in transferring applications between departments could not rationally justify that procedure when the claimants faced an acknowledged risk of serious harm.

6. Regulation 5 of the Immigration (Biometric Registration) Regulations 2008 empowered the Home Secretary to waive or defer biometrics. The claimants had a strong case for deferral because there was no visa application centre in Afghanistan and travel to a third country created serious danger. A form which required identification of a centre but provided no means to request waiver or deferral was irrational and procedurally unfair. The decisions refusing consideration were quashed, leaving the Home Secretary to determine the applications procedurally and substantively in light of the judgment.

• High Court (Administrative Court): In S’s claim, permission was refused on the papers on 9 December 2021 but granted upon oral renewal on 18 March 2022. In AZ’s claim, permission was granted on the papers on 8 February 2022.