QP1 & Anor v Secretary of State for The Home Department & Anor

An applicant for entry clearance outside the Immigration Rules must first make a proper application through the administrative process. A pre-action letter cannot itself constitute an application for entry clearance or bypass established immigration procedures.

An ARAP application is not a visa application form and cannot also serve as an application for leave outside the Rules. ARAP eligibility and consideration of entry clearance are distinct functions. The court should be slow to interfere with the Secretary of State’s operational arrangements for processing such applications, particularly where the proposed route would in substance circumvent the territorial limits applicable to protection claims.

The claimants, Afghan nationals and husband and wife, sought judicial review concerning the Afghan Relocations and Assistance Policy. The first claimant’s ARAP application had been refused by the Secretary of State for Defence, and that decision was no longer challenged. The remaining claim concerned the Secretary of State for the Home Department’s alleged failure to consider leave outside the Immigration Rules on compelling compassionate grounds, and the absence of a separate or unified application form for that purpose.

The court considered whether the pre-action correspondence constituted an application, whether the ARAP form could operate as a visa application form, whether a separate form or referral process was required, and whether adequate reasons had been given for the existing arrangements.

1. The claim was dismissed. The claimant had not made a valid application for entry clearance outside the Immigration Rules. A letter before claim, whose purpose was to identify proposed judicial review proceedings, could not substitute for an application through the Home Office’s administrative process. The court would not grant relief for alleged public law error on matters that had not been properly presented to the decision-maker.
2. The ARAP scheme and leave outside the Rules were distinct routes. The ARAP form was not a visa application form and could not constitute an application for entry clearance. The Ministry of Defence’s role was to assess ARAP eligibility, while the Home Office was responsible for the immigration decision. There was therefore no reviewable error in failing to refer the claimant’s ARAP application to the Home Office or to permit one form to serve both purposes, following S & Anr v Secretary of State for the Home Department [2022] EWCA Civ 1092.
3. The court confined the challenge concerning a separate form to the claimant’s individual circumstances rather than determining a wider systemic challenge. The Secretary of State’s choice of application forms and departmental processing arrangements was an area in which the court should be slow to interfere. The claimant could use the form most closely matching his circumstances and challenge any refusal after making a proper application.
4. The claimant’s case, although framed as one concerning compelling compassionate circumstances, was in substance a protection claim based on risks in Afghanistan. The Refugee Convention and the ECHR did not provide the asserted route to protection from outside Afghanistan. Relief requiring a process which circumvented those territorial requirements would amount to judicial overreach and risk creating a parallel immigration regime.
5. The emailed visitor application was invalid because it was not submitted through the prescribed online process. It was also substantively inconsistent with the claimant’s apparent intention to settle in the United Kingdom. The arguments concerning fee and biometric waivers failed because no proper application or waiver request had been made.
6. Only grounds for which permission had been granted could proceed to a substantive hearing. The court emphasised the need for procedural rigour under CPR 54.4, applying the approach in R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841.

First-instance judicial review proceedings in the High Court (Administrative Court). The claimant’s ARAP refusal and review decision were not pursued at the hearing; the remaining LOTR challenges were dismissed.