Bam Bahadur Gurung, R (on the application of) v The Secretary of State for the Home Department (ACRS meaning – policy interpretation principles)

A policy is interpreted objectively by the court or tribunal, which determines its meaning for itself from the language used and the proper context. The policy’s purpose, intended readership, structure, related policies and, where appropriate, earlier versions may assist interpretation. Unpublished material unavailable to the intended readership cannot do so. Interpretation is distinct from application: the former is for the court, while evaluative decisions under the policy are for the decision maker.

Under the Afghan Citizens Resettlement Scheme, “resettlement” concerned persons facing future risk arising from recent events in Afghanistan and requiring a route to safety. Past risk alone was insufficient. Third-country nationals were not excluded, but those safely able to return to their home countries generally did not require resettlement, subject to the policy’s protection for close family members of persons at risk.

The applicant, a Nepalese national and private security contractor evacuated from Afghanistan during Operation Pitting, was granted limited leave outside the Immigration Rules and later referred for consideration under the Afghan Citizens Resettlement Scheme. His referral was voided because he was not considered eligible. The respondent maintained that decision, relying on his nationality, his lack of direct UK government or armed forces engagement, and the absence of continuing risk requiring resettlement.

The applicant sought judicial review on grounds of policy misinterpretation, inadequate reasons and irrational inconsistency, because five comparable evacuees had received indefinite leave to remain. Permission was granted on the first two grounds and the third was considered on a rolled-up basis. The central issues were the meaning of the ACRS and the adequacy and rationality of the respondent’s decision.

1. Policy interpretation. Interpretation was a question of law for the Tribunal. The Tribunal had to determine the policy’s meaning for itself, objectively and from the language used in its proper context. A policy was not to be treated as a statute or contract. Its intended readership was relevant: specialist terminology could operate as a term of art for expert readers, while policies directed to the public should generally be understood according to natural and ordinary language. Material unavailable to the intended readership could not assist interpretation.
2. Context included the policy read as a whole, its purpose, its relationship with other policies and statutory provisions, and, where appropriate, earlier versions. Background facts required caution. Their relevance depended on identifying the proposition they were said to support. Interpretation remained distinct from application: the court determined meaning, while the decision maker made the evaluations required by the policy.
3. Meaning of the ACRS. “Resettlement” ordinarily meant re-establishing a permanent home or way of life. In the ACRS, the term took its meaning from the repeated references to risk, protection and a route to safety. The eligibility criteria therefore concerned future risk caused by recent events in Afghanistan, not merely historical risk experienced before evacuation. The exclusion of persons holding leave in a safe country reinforced that construction.
4. The ACRS did not exclude third-country nationals. However, its references to mixed-nationality families and other family members described protection for close family members linked to persons facing future risk. They did not remove the requirement for future risk altogether. A person safely able to return to their country of nationality generally did not require ACRS resettlement.
5. Application and outcome. The respondent had correctly understood the policy. The applicant’s past work as a private security contractor did not establish the continuing risk contemplated by Pathway 1, and the respondent was entitled to conclude that he was not within the relevant vulnerable or values-based group. The reasons adequately addressed eligibility and prioritisation and did not impose an impermissible ARAP requirement.
6. The inconsistent grants of indefinite leave to remain to five other people did not show partiality, a dysfunctional system or irrationality. Inconsistency was not a free-standing ground of judicial review. The applicant had no legitimate expectation of receiving leave merely because the respondent had made errors in other cases. The application for judicial review was refused.

Upper Tribunal (Immigration and Asylum Chamber) On 14 February 2024, permission was granted on grounds (1) and (2); permission on ground (3) was renewed and considered on a rolled-up basis. The application for judicial review was refused.