GA, R (on the application of) v The Secretary of State for the Home Department & Ors.

A published policy does not create a legitimate expectation that an individual will be considered under an oversubscribed referral scheme unless it contains a clear, unambiguous and unqualified representation to that effect.

In reviewing the rationality of a policy affecting fundamental rights, the intensity of review varies with the seriousness of the consequences. The court must also allow an appropriate margin of appreciation where the decision involves expert, policy-laden or security-sensitive judgments. Eligibility criteria for a beneficial scheme must be rationally or logically connected to its objectives. A later specification of criteria is not an unlawful departure where the earlier policy expressly left the detailed process to be determined.

The claimant, an Afghan national and former lawyer and women’s rights activist, sought judicial review of the operation and implementation of the Afghan Citizens Resettlement Scheme. She argued that the first-year restrictions under Pathway 3 were inconsistent with policy statements published in September 2021, which referred to prioritising people who had supported democratic values, women’s rights and the rule of law, and vulnerable people at risk.

She also claimed a legitimate expectation that she would at least be able to apply or be considered, and challenged the refusal to consider discretionary leave outside the Immigration Rules. The central issues were whether the January 2022 implementation departed unlawfully from the earlier policy and whether the September statements created a legitimate expectation.

1. Legitimate expectation. The September 2021 policy documents did not make a clear, unambiguous and unqualified representation that the claimant, or persons in her position, would be individually considered under ACRS within a particular timescale or at all. The scheme was expressly oversubscribed, operated through referrals rather than applications, and left the details of Pathway 3 to be determined. The claimant therefore failed to establish a legitimate expectation.
2. Rationality and intensity of review. The intensity of rationality review varies according to what is at stake. The protection of fundamental rights may require closer scrutiny, including when a general policy determines the outcome of individual cases. However, the court must also allow an appropriate margin of appreciation for expert knowledge, policy choices, security considerations and subject matter remote from ordinary judicial experience. The applicable task remained whether the parameters were open to a reasonable decision-maker.
3. No unlawful departure. The January 2022 announcement did not change the September policy. The earlier documents stated that the details of Pathway 3 remained to be determined; the later announcement supplied those details for the first year. The criteria for British Council contractors, GardaWorld contractors and Chevening alumni had an obvious connection with the stated objective of assisting those who had supported the UK and international effort in Afghanistan. The claimant had not shown an arguable inconsistency with the scheme’s objectives.
4. The lack of detailed evidence explaining the priority given to those groups was unsatisfactory, but it did not relieve the claimant of the prior burden of showing that the criteria were arguably inconsistent with the policy objectives. Ground 4 stood or fell with ground 3 and required no separate determination. The claim for judicial review was dismissed.