CX1 & Ors, R (on the application of) v Secretary of State for Defence & Anor

Where Government action under the prerogative responds to an exceptional risk to life, the absence of a statutory discretion does not prevent judicial review for rationality. The court may examine whether a rigid policy excluding individual assessment is rationally justified.

The intensity of review depends on context. Where life and safety are at stake, the decision must provide a sufficiently cogent and reasoned justification, while allowing the primary decision-maker a wide evaluative discretion over competing policy, resource and operational considerations.

The claims concerned a Government response to a serious data leak affecting applicants to the Afghan Relocations and Assistance Policy. The claimants challenged a decision not to offer them relocation to the United Kingdom under a targeted relocation policy.

The policy prioritised a defined cohort of high-risk individuals identified by reference to specified high-profile roles. The central issue was whether the policy and its application were irrational because they excluded individual consideration of whether other claimants, including a former judge and a journalist, were at equivalent risk.

1. Outcome. The court granted permission to apply for judicial review, quashed the decision not to offer relocation to MP1 and CX6, and directed reconsideration of the approach to identifying the highest-risk cohort. CX4 and CX7’s claims were dismissed. Other claims were withdrawn or contingent on the reconsideration of another claimant’s case.
2. Because the relocation response was made under prerogative powers and outside a statutory framework, there was no statutory discretion capable of being unlawfully fettered. The rule in Sandiford nevertheless confirmed that prerogative decision-making remained reviewable for rationality. That review could encompass whether it was rational to adopt a rigid rule preventing case-by-case consideration.
3. The decision-maker was entitled to prioritise a limited cohort, given the scale of the risk, the practical limits on relocation, national-security concerns and competing resource demands. The court would not substitute its own assessment for that of the Government.
4. However, anxious scrutiny was required because the case involved a risk of torture or death, a very large affected population, an arguable breach of data-protection obligations, concealment of the risk from those affected, an exceptional injunction and significant consequences for the claimants. The policy therefore required close analysis and a sufficiently cogent and reasoned justification.
5. The identified roles were not shown to be exhaustive. The decision-maker had information from the ARAP applications with which to assess whether other high-profile individuals faced equivalent risks. Automatically excluding a former judge and a journalist because their roles were not listed was irrational. The court left open whether every applicant required individual assessment, since some might plainly not be high-profile.
6. The alleged risks to claimants not named in the dataset, based only on speculative professional links, did not require further action. The court also expressed concern, without determining a separate ground, that insufficient protective planning might have been undertaken for those outside the prioritised cohort, including persons at risk of refoulement.

This was a first-instance judicial review in the Administrative Court. The judgment records earlier open judgments concerning the underlying ARAP claims: [2024] EWHC 94 (Admin) and [2024] EWHC 410 (Admin).