BAL, R (on the application of) & Ors. v Secretary of State for Defence & Anor.

In reviewing exceptional applications for leave outside the Immigration Rules, decision-makers must apply the published policy accurately and give rational reasons for departing from a highly probative risk assessment. Under the additional-family-member guidance, a security-based application turns on whether there is a genuine, verifiable and compelling risk to the applicant’s safety or security linked to the ARAP principal’s work. The guidance does not impose a separate exceptionality requirement for security cases. A specialist panel may evaluate the evidence, but it cannot rationally downgrade an expert assessment on the basis of a material mistake of fact, ignore relevant evidence, or rely on irrational credibility reasoning. ACRS Pathway 1 requires notification during Operation Pitting that the individual had been called forward or specifically authorised for evacuation. Later disclosure of an earlier approval does not satisfy that requirement. A legitimate expectation also requires a clear, unambiguous and unqualified undertaking.

The claimants were Afghan adult children of a judge who had been assessed as eligible for relocation to the United Kingdom under ARAP category 4. They challenged decisions refusing their applications for leave outside the Immigration Rules as additional family members. The applications relied on security risks arising from the father’s work, additional vulnerabilities, and, for two claimants, eligibility under ACRS Pathway 1.

Permission had been granted on irrationality and procedural unfairness. The claimants renewed permission on grounds alleging incorrect application of ACRS Pathway 1 and breach of legitimate expectation. The court considered three refusal or review decisions together.

1. Ground 1 succeeded. The decisions of 15 July, 12 August and 7 September 2022 were irrational and were quashed.
2. Under the AFM Guidance, a security-based application required consideration of whether the applicant faced a genuine, verifiable and compelling risk to safety or security related to the ARAP principal’s work. The reference to the most exceptional and unusual circumstances applied to applications based on additional vulnerabilities, not to security applications. The court was not persuaded that references to an exceptional risk alone demonstrated irrationality.
3. The MOD’s Threat Assessment was not determinative, but it was highly probative. The panel could depart from it only for cogent reasons. Its decision to downgrade the assessed risk from high to medium was founded on the mistaken belief that only one son had been arrested. The evidence before the panel showed that both sons and their father had been detained. The mistake materially infected the decision concerning all four applicants.
4. The alternative reasoning was also irrational. It treated the different treatment of the brothers as undermining the claimed link to the father’s work, failed to account for the different circumstances of their arrests, and relied on manifestly bad credibility points. The decision-maker also failed to address evidence of a further security incident after the father’s departure.
5. Ground 2 failed. The defendants confirmed that all relevant materials were before the maker of the 7 September decision. Any failure to engage with particular evidence was considered under rationality.
6. Ground 3 failed. ACRS Pathway 1 required notification during Operation Pitting that an individual had been called forward or specifically authorised for evacuation. The claimants had not received such notification. Earlier approval, internal security-check communications, and later disclosure did not establish eligibility.
7. Ground 4 failed. No clear, unambiguous and unqualified undertaking had been given, so no legitimate expectation arose. Permission was granted on ground 3 but the claim was dismissed on grounds 2, 3 and 4. The court was to hear the parties on the precise consequential order.

First-instance judicial review in the Administrative Court. The court quashed the three challenged decisions on irrationality, rejected procedural unfairness, and dismissed the ACRS Pathway 1 and legitimate-expectation grounds.