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

A relocation policy adopted in response to an exceptional data breach was rational where it prioritised those at the highest risk, defined as high-profile individuals in identified roles or other high-profile roles carrying equivalent risk. Even under anxious scrutiny, judicial review asks whether the line actually drawn was rational, not whether another line might have been chosen.

The rule against fettering discretion applies only to a statutory discretion. The formulation of initial eligibility criteria for a relocation policy may be an exercise of prerogative power, although the later grant of entry clearance is statutory. Human Rights Act 1998 section 6 imposes a duty of Convention compatibility; it does not itself confer a power or statutory discretion.

Two groups of Afghan nationals challenged decisions refusing them assistance under a confidential policy adopted after a Ministry of Defence data incident exposed personal details of many Afghan relocation applicants. The policy confined relocation to high-profile individuals in specified roles, or in other roles carrying equivalent risk.

Jay J dismissed AFA’s claim. Saini J dismissed QP1’s claim in [2024] EWHC 1905 (Admin). Both judges treated the policy as lawful in light of the Divisional Court’s decision in CX1.

The appeals raised whether the policy was irrational and, in AFA’s case, whether it unlawfully fettered a statutory discretion.

1. The appeals were unanimously dismissed. The respondents’ amended policy was not irrational. It was rationally open to them, in the exceptional circumstances created by the data incident, to prioritise the highest-risk cohort rather than relocate every affected person.

2. The court applied anxious scrutiny because the consequences included risks to life and serious harm, and because the risk flowed from governmental error. That standard did not entitle the court to redraw the policy boundary. The relevant question was whether confining relocation to high-profile roles, including other roles carrying equivalent risk, was rational. The policy had been formulated following expert assessment, remained under review, and required the balancing of grave security, resource, operational and domestic social-policy considerations. It was therefore within the respondents’ public-law judgment.

3. The court broadly agreed with the Divisional Court’s analysis in CX1, especially its contextual assessment. However, that court had not determined the full issue now raised. Saini J therefore erred in treating CX1 as having conclusively endorsed the policy in every respect other than those expressly held unlawful. The error was immaterial because the amended policy was independently rational.

4. The objection based on fettering discretion failed. The principle in British Oxygen applies only where a public authority exercises a statutory discretion. The respondents’ formulation and application of the confidential stage-one relocation policy was an exercise of prerogative power. Although control of leave to enter or remain, and the eventual grant of entry clearance, are statutory matters under the Immigration Act 1971, the Ministry of Defence’s assessment of initial eligibility was not an exercise of that Act.

5. Human Rights Act 1998 section 6 did not supply a statutory power. It imposes a duty not to act incompatibly with Convention rights when a public authority exercises a power conferred elsewhere. The court therefore did not need to determine whether the appellants were within the United Kingdom’s jurisdiction under article 1 of the Convention, or whether article 8 was otherwise engaged. No statutory discretion existed to which the rule against fettering could apply.

• Court of Appeal (Civil Division): Both appeals dismissed unanimously: [2025] EWCA Civ 825.
• High Court, Administrative Court: Saini J dismissed QP1 and another’s judicial-review claim: [2024] EWHC 1905 (Admin). Jay J dismissed AFA and others’ judicial-review claim on 18 July 2024; the citation is not stated in the judgment.