FMA & Ors v Secretary of State for the Home Department

In a challenge to refusal of entry clearance under paragraph 9.3.1 of the Immigration Rules, the court must review legality, not substitute its own view of whether admission is conducive to the public good. Anxious scrutiny heightens care in reviewing the reasoning but does not itself alter ordinary judicial-review principles.

The decision-maker must identify and consider relevant matters, make reasonable enquiries, and comply with the applicable policy. The policy does not require a balancing of the public-good assessment against the applicant’s risk of harm if refused entry. Eligibility under the ARAP Appendix is distinct from the later suitability and entry-clearance decision. Where reliable information reasonably supports a precautionary national-security assessment, the Home Secretary has latitude to decide whether refusal is justified.

The claimants were an Afghan interpreter who had worked for British and United States forces, his wife and their two children. They had been found eligible under the Afghan Relocation and Assistance Policy, but their entry-clearance applications were refused under paragraph 9.3.1 of the Immigration Rules because the First Claimant’s presence in the United Kingdom was assessed not to be conducive to the public good.

The August 2021 refusal was withdrawn and reconsidered in March 2022. After further evidence was provided during the judicial-review proceedings, the Home Secretary reconsidered the matter again in January 2023 and maintained the refusal. The claim challenged the decisions on grounds including anxious scrutiny, policy compliance, reasonable enquiry, consideration of other ARAP decisions, and disclosure under article 6 of the Convention.

1. Anxious scrutiny and the scope of review. The court rejected the submission that [2010] 4 All ER 448 entitled it to decide for itself which matters were relevant. In that case the court had adopted an exceptional approach to a certification decision under section 94 of the Nationality, Immigration and Asylum Act 2002. Here the Home Secretary’s paragraph 9.3.1 decision was not one the court could second-guess. The applicable approach remained ordinary judicial review, including the principles in [1981] 1 NZLR 172, applied in the context of the Immigration Rules and policy.
2. Policy and ARAP. The suitability policy did not require the Home Secretary to balance the public-good assessment against the risk the claimant faced in Afghanistan if refused entry. That risk was relevant to eligibility under the ARAP Appendix, but eligibility and entry clearance were separate stages. The March 2022 consideration minute had, in any event, taken the asserted risk into account.
3. Gravity and precaution. The policy required consideration of the nature and seriousness of the conduct, its frequency, the difficulty admission might cause, and other relevant circumstances. The court held that it was open to the Home Secretary, on the available evidence, to find that release of sensitive information and a threat to kill were sufficiently serious. The court could not substitute its assessment. The Home Secretary was entitled to latitude and to adopt a precautionary approach, provided the conclusion was reasonable, proportionate and evidence-based.
4. Reasonable enquiry. The obligation explained in [1977] AC 1044 requires reasonable, not exhaustive, enquiries. What was reasonable was initially for the decision-maker. The court was satisfied, for reasons in the closed judgment, that reasonable steps had been taken.
5. Other ARAP decisions. The Home Secretary was entitled to consider the applications on their own facts. The withdrawal and reconsideration of other decisions did not establish a generic defect requiring investigation in this case.
6. Article 6 and disclosure. The legality of the visa decisions did not entail determination of a civil right or obligation. The court followed the reasoning in (2001) 33 EHRR 42, as repeated in Application 3599/18, judgment 5 March 2020, and maintained its conclusion in [2022] EWHC 2380 (Admin). Article 8 procedural rights could not be used generally to expand the scope of article 6. The documents covered by the further section 8 application were unnecessary for determining the legal issue.
7. Disposition. Permission to apply for judicial review was granted on all grounds, but the claim failed on every ground and was dismissed. The court also stated that relevant documents should not be redacted to remove provenance or context on grounds of relevance without permission.

Not an appeal. The judgment describes successive administrative decisions: an August 2021 refusal, withdrawn and reconsidered in March 2022, followed by a further reconsideration in January 2023. The claim for judicial review of the maintained refusal was dismissed.