SH v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Where an applicant’s circumstances most closely match the Afghan Relocation and Assistance Policy (ARAP), an ARAP application accompanied by correspondence invoking leave to enter outside the Immigration Rules (LOTR) must be treated as an application for LOTR, even where the applicant falls outside ARAP’s substantive scope. A first-instance decision on the same issue should be followed unless the later court is convinced that it is wrong or there is a material distinction. The court should not determine the merits of LOTR, assess alleged inconsistency with previous grants, or dictate relevant considerations before the responsible decision-maker has considered the application.

The claimant, an Afghan national who had worked in broadcast media connected with the BBC, sought relocation with his wife and five daughters, who were at risk from the Taliban. He applied under ARAP and alternatively sought LOTR. The ARAP application was refused because he fell outside the policy’s scope. The First Defendant declined to treat the application and related correspondence as an application for LOTR because the prescribed online visa process had not been used.

The claimant challenged the ARAP decisions, the refusal to consider LOTR, and an alleged failure to exercise a discretion to support or grant relocation. Following R (S) v Secretary of State for Foreign, Commonwealth and Development Affairs & others and R (AZ) v Secretary of State for the Home Department & others [2022] EWHC 1402 (Admin), the central issue was whether there was any material distinction between the claimant’s circumstances and those considered in that judgment.

1. Ground 3 succeeded. The court followed and applied the ratio in S & AZ that, where ARAP is the route most closely matching an applicant’s circumstances, an ARAP application together with correspondence invoking the power to grant LOTR must be treated as an application for LOTR and considered as such. The fact that the claimant was outside ARAP’s scope did not alter that conclusion.
2. In the absence of a material distinction, a first-instance decision on the point was to be followed unless the court was convinced that it was wrong, applying Police Authority for Huddersfield v Watson [1947] I KB 842 and R (ex p Tal) v Greater Manchester Coroner [1985] 1 QB 67. The asserted availability of family-based routes did not create a material distinction. The claimant’s case was closely akin to ARAP circumstances and materially different from family-reunion or family-migration cases. Nor was the timing of the LOTR request material.
3. Ground 2 did not justify relief. The First Defendant had not yet decided the LOTR application. The court would not assess in advance whether the claimant was equivalent to media workers granted Pitting LOTR, particularly where the available information about those persons was general and the proposed comparison would be speculative. The fact that Pitting LOTR criteria no longer governed later grants did not prevent the asserted equivalence being considered as a relevant factor.
4. Ground 4 also failed. It was not self-evident that a lawful consideration of LOTR could lead only to a grant. Any challenge to the eventual LOTR decision had to await that decision. The proposed challenge to the Second Defendant’s alleged discretion to sponsor or support a LOTR application concerned a different decision from those pleaded and had not been properly raised.
5. The refusal to treat the material advanced as an application for LOTR was quashed. The First Defendant was directed, to the extent necessary, to consider the material as an application for LOTR.

The judgment was a first-instance judicial review decision. It records that S & AZ [2022] EWHC 1402 (Admin) was under appeal, with permission granted, but that appeal was not the present proceedings.