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

A concessionary immigration scheme established under prerogative powers may be closed when the executive considers appropriate. There is no general legal right that such a scheme, or the Immigration Rules, will remain unchanged or open indefinitely.

A legitimate expectation requires a clear, unambiguous and unqualified promise, or a practice tantamount to such a promise. Even where an expectation exists, it may be defeated by an objectively justified and proportionate response to a legitimate public-interest aim. Procedural fairness is context-specific. Immediate closure without notice may be lawful where notice would cause an unmanageable surge in applications, prejudice existing applicants and frustrate the scheme’s objectives.

The claimant sought judicial review of the closure of the Afghan Relocations and Assistance Policy scheme to new applications on 1 July 2025 without notice, and of the defendants’ subsequent refusal to accept or consider a future application. He contended that the decisions were unfair, defeated a legitimate expectation, unlawfully fettered discretion and were irrational.

The claimant had corresponded with the defendants about whether his deceased son had made an application. On 3 June 2025 the defendants said that no such application had been located and that the claimant could make an application, but they did not indicate that closure without notice was being considered. The central issues were whether the claimant had a legitimate expectation of notice or consideration, whether immediate closure was procedurally unfair, and whether the defendants retained a discretion to treat a post-closure application as timely.

1. Disposition. Permission to amend to add ground 1A was refused. The claim was otherwise dismissed. The defendants’ decisions were lawful.
2. The ARAP scheme was a concessionary policy established under prerogative powers in the field of foreign and security affairs. Its inclusion in the Immigration Rules did not create a continuing legal right that it would remain open. The executive was entitled to decide when and how it should close.
3. A legitimate expectation requires either an express promise, representation or assurance which is clear, unambiguous and devoid of relevant qualification, or a practice tantamount to such a promise. The 21-day convention for changes to the Immigration Rules was only a convention. It had been departed from on several occasions, and there was no consistent practice governing what would happen when it was not followed. No legitimate expectation therefore arose.
4. Even assuming an expectation of advance notice, it was objectively justified and proportionate not to honour it. Avoiding a last-minute surge in applications was directed to the legitimate aim of processing existing applications promptly and relocating applicants at serious risk. The concern extended beyond administrative convenience and was supported by the scheme’s backlog, the high proportion of ineligible applications and the risk of an especially severe surge following disclosure of the data breach.
5. Procedural fairness is context-specific and is for the court to determine. The claimant was not entitled to notice so that he could make representations about closure. Nor was the defendants’ correspondence unfair: it accurately stated that he could apply and supplied a link to an application form which could have been completed promptly. The defendants did not deprive him of an opportunity to apply.
6. The post-closure rules made timely application a condition of eligibility and provided no discretion to treat an ineligible post-closure application as timely. A possible application for leave outside the Rules did not require the defendants to process it under the closed ARAP scheme. Requiring a further discretionary decision in every similar case would undermine the purpose of closure.
7. The irrationality ground was premature because no application had been made. In any event, the defendants’ position was rational and lawful.

First-instance judicial review proceedings. No prior decision under appeal was stated in the judgment.