BEL & Ors, R (on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs

Article 8 ECHR does not ordinarily require the United Kingdom to provide diplomatic or consular assistance to persons outside its territory, even where their family life with a person in the UK is protected by Article 8 and they have conditional permission to enter.

A decision to make an exception to a consular-assistance policy remains subject to rationality review. Where the consequences are grave, the court will examine the reasoning rigorously. The decision-maker must engage with the policy context, the relevant size of the potentially affected group, the position of British nationals, and evidence bearing on the likely diplomatic cost of assistance. A refusal based on an irrational process must be reconsidered, but the court need not direct the ultimate outcome.

The claimants were a Palestinian family living in Gaza. Following a successful appeal to the Upper Tribunal on Article 8 grounds, the Home Secretary indicated that they would be granted conditional leave to enter the United Kingdom, subject to biometric and security checks.

Because there was no available visa application centre in Gaza, the family sought consular assistance from the Foreign Secretary to leave Gaza and travel to Jordan. Their request fell outside the Extended Eligibility Criteria and was refused on 6 June 2025.

They challenged that refusal as irrational, procedurally unfair and inconsistent with policy, and argued that Article 8 imposed a positive obligation to assist their departure. The central issues were the territorial scope of Article 8 positive obligations and whether the refusal was rationally reached.

1. Article 8. Article 8 may impose positive obligations to promote family reunification, including admission at the border or provision of travel documents. It does not, however, require diplomatic or consular intervention to secure the departure of persons outside the United Kingdom. The Strasbourg authorities, including HF v France, did not support such an obligation. The claimants’ Article 8 claim therefore failed and the question of justification did not arise.
2. Effect of entry clearance. Conditional entry clearance did not itself create an obligation to provide assistance or make the Upper Tribunal’s decision ineffective. The claimants’ status could nevertheless be relevant when considering whether to extend the consular policy or make an exception.
3. Rationality. The decision-maker had broad latitude to identify relevant considerations and gather information. That latitude did not remove the obligation to reason rationally. Given the grave consequences for the family, the decision required rigorous examination. Rationality included both process rationality and outcome rationality.
4. Policy context. The rationality of an exception decision had to be assessed against the policy reasons, particularly the need to preserve limited diplomatic capital. The distinction between making an exception and modifying the policy was not fundamental. The decision-maker had to confront whether assistance to persons in the claimants’ position would actually expend diplomatic capital, and by how much.
5. The decision was flawed because it failed adequately to consider: the claimants’ conditional entry clearance and close family connection to a UK national; the likely size of the relevant group; the number of British nationals seeking assistance; and evidence that Israel might more readily permit departures. Treating Israeli policy and the viability of departure requests as categorically irrelevant was irrational.
6. It was not highly likely that the outcome would have been substantially the same absent the errors. The refusal was quashed and remitted for reconsideration. The Foreign Secretary was not required to grant assistance, but had to think again, with an opportunity for further representations.

The claim arose after the First-tier Tribunal dismissed the family’s Article 8 appeals. The Upper Tribunal allowed the further appeal on 13 January 2025, concluding that refusal of entry clearance was disproportionate. The Home Secretary did not seek to appeal and indicated that conditional entry clearance would be granted. This judicial review challenged the Foreign Secretary’s later refusal of consular assistance.