CX1 & Ors, R (on the application of) v Secretary of State for Defence & Anor

The common-law duty to give reasons is context-specific. A high-volume, urgent administrative scheme may use template decisions where they identify the relevant criteria and leave a realistic prospect of challenge; bespoke reasons are not invariably required. A policy must be read objectively as a whole and in light of its purpose. Under ARAP category 4, employment by an independent organisation does not itself exclude eligibility: work alongside a UK government department may qualify if the conditions are met on the facts. An unpublished caseworking document is lawful where it merely assists application of the published criteria. An online form may be required for leave outside the Rules if, read with the guidance and free-text facility, it does not unlawfully deter applications or fetter discretion.

The claimants were Afghan nationals who had worked for the BBC and other news organisations in Afghanistan. They challenged refusals of relocation under the Afghan Relocations and Assistance Policy (ARAP), and sought consideration under the Secretary of State for the Home Department’s residual discretion to grant leave outside the Immigration Rules.

The challenges concerned the adequacy of the ARAP reasons, the interpretation and application of category 4, the use of online visa application forms for leave outside the Rules, and an unpublished ARAP caseworking procedure disclosed during the proceedings. The central issues were whether the decisions were unlawful for inadequate reasons or misunderstanding the policy, whether the LOTR process unlawfully fettered discretion, and whether the unpublished procedure imposed a different eligibility threshold.

Disposition. Permission to bring judicial review was granted on all grounds. Ground 1(b) succeeded. Grounds 1(a), 2, 3 and 4 failed.

1. Reasons and procedural fairness. The common-law duty to give reasons is fact- and context-specific. The court applied the principles identified in R (Help Refugees Ltd) v Secretary of State for the Home Department (Centre for Advice on International Rights in Europe intervening) [2018] 4 WLR 168. Reasons must generally leave a realistic prospect of challenging an administrative decision, subject to operational requirements which make more detailed reasons impractical. In the ARAP context, the volume of applications, urgency, translation requirements and the need to prioritise eligible applicants justified template decisions identifying the criteria met and not met. The reasons were legally sufficient.
2. Policy interpretation and category 4. Policy meaning is an objective question, assessed by reading the policy as a whole and in light of its purpose, following R (KA) v Secretary of State for the Home Department [2022] EWHC 2473 (Admin) and R (O) v Secretary of State for the Home Department [2016] 1 WLR 1717. A material failure to understand a policy renders a decision unlawful, consistently with Gransden & Co v Secretary of State for the Environment (1987) 54 P & CR 86.
3. Under paragraph 276BB5 of the Immigration Rules, direct employment by a government department is not the only route to category 4 eligibility. A person working for an independent organisation, including the BBC, may have worked alongside a UK government department in partnership with or closely supporting and assisting it. Mere physical proximity is unlikely to suffice, but embedded work or significant activities aligned with government objectives may do so. Independent journalists may also satisfy the contribution requirement through substantive and positive contributions to intelligence, democratic systems or national security objectives. Applicants need not identify the precise sponsoring department if they describe sufficiently who or what they worked alongside; the department can establish the relevant identity. The Taliban’s perception cannot alter the meaning of condition 1, but may be relevant to the causal risk requirement in condition 3.
4. Materiality. The error in treating work for the BBC as automatically incapable of satisfying category 4 was material. There was more than a fanciful prospect of a different eligibility outcome, and the court declined to undertake an individual merits assessment which the defendants had not carried out.
5. Leave outside the Rules. The court distinguished the low-intensity approach in R (SC and others) v Secretary of State for Work and Pensions and others [2022] AC 223, and applied the broader rationality analysis in R (Johnson and others) v Secretary of State for Work and Pensions [2020] PTSR 1872. The use of a non-bespoke online form was sub-optimal, but the guidance and free-text boxes enabled applicants to explain inaccurate entries. The requirement did not realistically deter applications and did not unlawfully fetter the discretion under section 3 of the Immigration Act 1971. The reasoning in R (Al-Enein) v Secretary of State for the Home Department [2020] 1 WLR 1349 provided some assistance on discretionary requirements. Grounds 2 and 3 therefore failed.
6. Unpublished procedure. The court distinguished the principle in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245. Properly read, the SOP merely assisted caseworkers to apply paragraph 276BB5 and imposed no materially different threshold. Ground 4 failed.