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

An overseas application for leave outside the Immigration Rules must be made using the application form for the route that most closely matches the applicant’s circumstances. An application made on an ARAP form is not thereby a valid LOTR application. Where an applicant can truthfully identify a Visa Application Centre at which biometrics will be provided, refusal to treat an ARAP-form application as valid is not irrational merely because rejection prevents a biometric appointment.

Policies governing evacuation during Operation Pitting ceased when that operation ended. A person’s case is generally assessed under the policy applicable when the decision is made. Guidance identifying priority groups did not create a legitimate expectation that every person within a group would be evacuated, or that undisclosed prioritisation processes would be applied in a particular way.

The claimant, an Afghan national and women’s rights and human rights activist who had also held a senior government post, sought judicial review of the defendants’ failure to grant her leave to enter the United Kingdom. She relied on applications and representations made under ARAP, the ACRS and LOTR.

She challenged the requirement to make a LOTR application on an online visa form and to provide biometrics, alleging irrationality and procedural unfairness. She also alleged inconsistent treatment compared with people evacuated during Operation Pitting and relied on the 22 August 2021 GovUK guidance as giving rise to a legitimate expectation.

The central issues were whether she had made a valid LOTR application, which policy applied to any future application, and whether the guidance made a sufficiently clear representation.

1. The claim was dismissed on both grounds. The Court of Appeal’s decision in S and AZ, [2022] EWCA Civ 1092, was binding on the validity of the application route. An ARAP online form was not one of the online visa application forms specified by the LOTR guidance, and the claimant had therefore not made a valid LOTR application.
2. The claimant’s biometric argument failed on the facts. Unlike the claimants in S and AZ, she had been able to travel to Pakistan with her adult children. She could truthfully state that she would provide biometrics at a VAC in Pakistan. The Secretary of State therefore did not act unlawfully by refusing to accept the ARAP-form application as valid, even though the absence of a valid application prevented allocation of a GWF reference number and a biometric appointment.
3. The policy and criteria applicable to any future LOTR decision were those in force when that decision was made. The Operation Pitting LOTR criteria ceased to operate when the evacuation ended on 28 August 2021. The Secretary of State was entitled to continue granting leave to those called forward or authorised for evacuation, because honouring prior commitments provided a rational basis for distinguishing that cohort.
4. The 22 August 2021 guidance did not contain a clear, unambiguous and unqualified representation that every person within a listed priority group would be evacuated, or that prioritisation would follow a particular fair and consistent system. On a fair reading, it offered consideration for assistance to at-risk non-British nationals within the groups who contacted the helpline, subject to selection criteria and practical flight-capacity limits. It did not give rise to the claimed legitimate expectation.
5. The court directed the practical course that the claimant should make a valid LOTR application, supported by the material assembled in the proceedings. The defendants confirmed that material would be considered with such an application.

1. Court of Appeal: In the conjoined claims in S and AZ, the Court allowed the appeal on the use of the ARAP form and dismissed the appeal concerning the biometric requirement: [2022] EWCA Civ 1092.
2. High Court (Administrative Court): The present judicial review claim was dismissed on both grounds.