HS, R (on the application of) & Anor v Secretary of State for Foreign, Commonwealth & Development Affairs

The ARAP-AFM policy requires an applicant to be a family member of the eligible Afghan principal. “Family member” has no fixed meaning and must be construed from the policy’s language, context and purpose. The substance of the relationship matters more than its formal label, but the policy does not extend to connections outside a family relationship.

An ex-spouse is not automatically excluded. However, a dissolved marriage does not, without more, establish a continuing family relationship. If the applicant is outside the policy’s scope, the decision-maker need not assess security risks, vulnerabilities, dependency or the child’s best interests under the policy. Article 8 and section 55 cannot create a procedural gateway through an ARAP application form.

The claimants, Afghan nationals, challenged the refusal to endorse ZN’s application under the ARAP-AFM policy for leave outside the Immigration Rules. ZN was the former wife of HS, an ARAP principal, and the mother of their settled-status child, D. Following the parties’ divorce, they had maintained a close co-parenting arrangement, but lived separate lives.

The defendant treated ZN as outside the policy because she was HS’s ex-wife and did not assess the claimed security risks or exceptional dependency. Permission was granted on the question whether an ex-spouse could constitute an “additional family member” under the policy.

1. Claim dismissed. The defendant was entitled to refuse the application as outside the ARAP-AFM policy.
2. The policy had to be interpreted as a matter of law by its natural and ordinary meaning, read as a whole and in light of its context and purpose. The construction principles in Mahad v Entry Clearance Officer [2009] UKSC 16, R(Raissi) v Home Secretary [2008] QB 836 and R(CX1) v Secretary of State for the Home Department [2024] EWHC 94 (Admin) applied.
3. Being an “additional family member” was a precondition to applying under the policy. The relevant relationship was between the ARAP principal and the applicant. The policy did not require a blood or formal legal connection, but it did require a family relationship. Substance, rather than formal description, was decisive.
4. An ex-spouse was not automatically barred. Nevertheless, a historic marriage did not create an enduring family relationship after dissolution. On the evidence, HS and ZN had lived independently since 2018 and their continuing relationship was confined to co-parenting D. ZN was therefore not HS’s family member for the purposes of the scheme.
5. Because ZN fell outside the policy, the defendant was not required to assess security concerns, additional vulnerabilities or exceptional dependency. The observations concerning those criteria were unnecessary to the decision.
6. Section 55 of the Borders, Citizenship and Immigration Act 2009 required a child’s best interests to be considered in a decision falling within the policy. It did not require an out-of-scope application to be processed under the policy. Article 8 ECHR likewise did not make the ARAP form a procedural gateway to another immigration route; an application under Appendix FM remained available, subject to its own requirements, consistently with S, AZ v SSHD [2022] EWCA Civ 1092.
7. The claimants were ordered jointly to pay the defendant’s reasonable costs, subject to the applicable legal-aid protection. There was no principled basis for apportioning liability between them.