MXR v Secretary of State for Defence

Permission to amend grounds of judicial review requires the proposed ground to be properly arguable.

Under Appendix ARAP, a requirement that an applicant must be at elevated risk refers to the applicant’s present status. The assessment may include the risk of removal from a third country to Afghanistan, but a person safely established in a third country without such a risk will not satisfy the requirement. A review should consider current circumstances where the scheme is directed to securing the applicant’s safety. ARAP is an ex-gratia scheme. Its discretionary operation cannot be used to bypass its eligibility requirements.

The applicant sought permission to amend his judicial review claim concerning the Secretary of State’s decision that he was ineligible for relocation under the Afghan Relocation and Assistance Policy (ARAP).

He proposed three grounds: that Appendix ARAP 13(3)(a) concerned elevated risk in Afghanistan rather than his current location; that the review should assess facts at the time of the original decision rather than at the review; and that the Secretary of State had unlawfully failed to exercise, or properly consider exercising, a discretion in his favour despite his having fled to a safe third country.

The issue was whether any proposed ground was properly arguable.

1. Application refused. The applicant was refused permission to amend the claim form because none of the three proposed grounds was properly arguable.
2. Appendix ARAP 13(3)(a) requires the additional family member presently to be at elevated risk. The imperative word “must” and the present tense “be” make the temporal requirement clear. Under the approach in Mahad v Entry Clearance Officer [2009] UKSC 16, immigration rules are construed according to their natural and ordinary meaning. Where the wording is clear, policy, earlier versions of the rules and previous guidance do not assist construction.
3. The rule does not necessarily require continuing targeting in the applicant’s physical location. Risk may include the risk of deportation or removal from a third country to Afghanistan. On the evidence, however, there was no such risk from the United States.
4. The review was properly concerned with the applicant’s circumstances at the time of review. Requiring the decision-maker to disregard the fact that the applicant was then in a safe country would be artificial and inconsistent with the scheme’s objective of securing the safety of persons exposed to elevated risk.
5. ARAP is an ex-gratia scheme available to persons satisfying its particular requirements. A request for discretion based on the same matters relied upon to establish eligibility could not make the applicant eligible under the scheme. The reasoning in R (S and AZ) v Secretary of State for the Home Department and Secretary of State for Defence [2022] EWCA Civ 1092 was applicable: the ARAP procedure is sui generis and is not an appropriate gateway for determining a different application for leave outside the rules.
6. After considering submissions on closed material, the court was satisfied that no comparable exercise of discretion assisted the applicant’s case.