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

A change from an individualised immigration route to a bespoke policy does not, without more, establish that the former route was irrational or unlawful. A requirement to apply using the visa route most closely matching the applicant’s circumstances may remain an adequate alternative remedy, including where the application may invoke leave outside the Rules and Article 8 considerations.

The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 is a process duty. It requires regard to children’s best interests when a relevant function is exercised, but does not dictate the outcome or impose a court-set timetable for policy development. Government policy delay is not irrational merely because a different policy would be preferable. The duty of candour requires relevant, caveated information and the substance of relevant ministerial submissions to be disclosed.

Three Afghan sisters were evacuated to the United Kingdom during Operation Pitting without their parents and brothers, and were later granted indefinite leave under the Afghan Citizens Resettlement Scheme. Their representatives sought a bespoke route or other assistance to reunite the family. The Secretary of State maintained that the family members in Afghanistan should apply through the existing visa process, including the route most closely matching their circumstances and the policy on leave outside the Rules.

During the proceedings, the Secretary of State accepted a recommendation to establish a new route for parents of children evacuated without them, but the route was not yet operational. The claimants challenged the existing application requirement, alleged breaches of section 55, legitimate expectation, unlawful delay, failure to exercise discretion, and Article 8 rights. They also alleged breaches of the duty of candour.

1. Grounds 1–6 dismissed. The claimants had a suitable alternative remedy. Their parents and brothers could apply for entry clearance using the route most closely matching their circumstances and invoke the policy on leave outside the Rules, including compelling compassionate circumstances and Article 8 considerations. The existence of a later decision to create a bespoke route did not make the existing policy irrational or unfair.
2. The requirement to use the application process served legitimate administrative purposes, including fair and consistent treatment, reducing error, identifying the nature of applications and preventing abuse. The evidence did not show that the existing route was futile or systemically incapable of producing lawful outcomes. A bespoke criteria-based route might be easier to navigate and administratively preferable, but that did not establish that the existing approach was irrational.
3. Section 55 of the Borders, Citizenship and Immigration Act 2009 imposed a process duty. It required the Secretary of State to have regard to children’s best interests when exercising a relevant function, but did not require an immediate decision in favour of family reunification or dictate the speed of policy implementation. The duty was engaged, at the latest, when the Ministerial Submission comprehensively articulated the policy options, and the evidence showed that children’s best interests had informed the process.
4. There was no legitimate expectation of a bespoke route within a particular period. The relevant policy materials and ministerial statements were too general and qualified to amount to a clear, unambiguous and unqualified representation. The delay between the Ministerial Submission, its acceptance and the anticipated opening of the new route was not irrational. The court should not dictate the Government’s policy-making timetable or design the detailed route through mandatory relief.
5. The Secretary of State had considered the exercise of discretion; the refusal to exercise it through informal representations was based on the availability of the formal application route. Since there was no unlawful delay, the Article 8 and private-life detriment claim also failed.
6. The duty of candour was breached. The Home Office should have disclosed the known estimate of around 80 separated children, with appropriate caveats, and the substance of the Ministerial Submission before the hearing. Relevant evidence could not be withheld because the defendant considered it weak, and the duty did not permit unilateral pre-judgment of its evidential weight.

First-instance judicial review. The court granted permission at the rolled-up hearing but dismissed all six grounds and made findings of breach of the duty of candour.