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

The claimants, three sisters evacuated from Afghanistan in August 2021, sought declarations and mandatory relief requiring the Secretary of State to establish or effect a bespoke family‑reunion route so that their parents and brothers still in Afghanistan could join them in the UK. The principal legal issues were whether (a) it was irrational or unfair to require the family to apply for entry clearance under existing Immigration Rules and the "leave outside the rules" (LOTR) policy rather than to be granted immediate bespoke assistance, (b) the Secretary of State had breached the section 55 duty to have regard to the best interests of children, (c) there was a legitimate expectation that a bespoke route would be introduced within a reasonable time, (d) there had been unlawful delay, (e) the Secretary of State had failed to consider exercising discretion under the Immigration Act 1971, and (f) article 8 rights and other detriment flowed from any delay.

The court held that the claimants had an adequate alternative remedy by application under the Immigration Rules and the LOTR policy and that the Ministerial Submission and ensuing policy development did not render the existing approach irrational. The court rejected the section 55, legitimate expectation, delay and failure of discretion grounds. The court did, however, find a breach of the duty of candour because the Home Office failed to disclose relevant material, in particular the Ministerial Submission and an estimate of around 80 separated children, before the November 2023 hearing.

Background and parties: The three claimants are Afghan nationals evacuated under Operation Pitting in August 2021 and granted Indefinite Leave to Remain under the Afghan Citizens Resettlement Scheme (ACRS) Pathway 1. Their parents and two brothers remained in Afghanistan. The claimants challenged the Secretary of State's refusal to provide bespoke assistance to reunite their family in the UK and related conduct, brought by way of judicial review in the Administrative Court.

(i) Nature of the claim / relief sought: The claimants sought declarations of unlawfulness, a mandatory order requiring reunification of their family (subject to security checks and biometric enrolment), and damages including under section 8 of the Human Rights Act 1998. They also alleged breaches of the section 55 duty to safeguard and promote children's welfare and of the Home Office's duty of candour.

(ii) Issues framed: The court considered whether it was irrational or unfair to require family members overseas to apply under existing Immigration Rules and LOTR rather than to receive bespoke entry clearance; whether section 55 had been breached; whether a legitimate expectation arose that a bespoke route would be introduced within a reasonable period; whether there had been unlawful/deliberate delay; whether the Secretary of State had failed to consider exercising statutory discretion; whether article 8 rights were unlawfully prejudiced by delay; and whether the Secretary of State had breached the duty of candour by withholding the Ministerial Submission and associated estimate.

(iii) Court's reasoning and conclusions: The court emphasised established authorities recognising the administrative and fairness reasons for requiring applicants to use the visa application forms and the LOTR process. It concluded that the existence of the Ministerial Submission and the decision to develop a bespoke ACRS reunion route did not render the pre-existing approach irrational; policy evolution does not imply prior unlawfulness. The court held that the claimants had a suitable alternative remedy by applying under the Immigration Rules and LOTR, and that the section 55 duty had been engaged and considered in the policy process (not breached in the manner alleged). Legitimate expectation and delay grounds failed because the Parliamentary statements and policy documents did not give unambiguous promises that supported the claimed expectation and the timeframe for developing a route was not irrational. The Secretary of State had considered discretion and was not shown to have unlawfully fettered or failed to exercise it. Finally, the court found that the Home Office breached the duty of candour by failing to disclose the Ministerial Submission and the known estimate of around 80 separated children prior to the November 2023 hearing; that material was relevant and should have been disclosed with appropriate caveats.

Practical note: The court recognised that LOTR grants should remain rare and that policy development to create a rule‑based route for a specific cohort is an appropriate administrative response; the court declined to mandate substantive policy content or timing.

The claim is dismissed. The court found that the claimants had an adequate alternative remedy by application under the Immigration Rules and the LOTR policy; the Ministerial Submission and later policy development did not render the prior approach irrational; there was no breach of section 55 as alleged; no legitimate expectation arose; delay was not unlawfully disproportionate; and there was no failure to consider or exercise discretion in the manner alleged. However, the Secretary of State breached the duty of candour by failing to disclose the Ministerial Submission and the Home Office's estimate of around 80 separated children before the November 2023 hearing.