COR, R (on the application of) v Secretary of State for Defence

A pending internal merits review may be a suitable alternative remedy despite substantial delay. Suitability depends on the claim and relief sought, including whether resolving the complaint requires factual inquiry, whether the review can consider new evidence, and whether urgent cases can be expedited. The legal label attached to a challenge does not determine whether it turns on a point of law. Fairness to other applicants, pressure on limited resources and the real prospect of many similar claims may also be relevant when considering whether to permit judicial review before the review process is complete.

The claimant, an Afghan national, worked as a security guard at the British Embassy in Kabul under contracts with private companies. He applied to be relocated to the United Kingdom under the Afghan Relocations and Assistance Policy. The Secretary of State accepted that he had provided relevant services but refused his application, finding that he had not made the required contribution to the United Kingdom’s national security objectives.

The claimant sought permission to challenge the refusal, arguing that the Secretary of State had applied an incorrect test and unfairly distinguished contract workers from direct employees. His request for an internal review remained pending, with a lengthy estimated wait. The issue before the court was whether that review provided a suitable alternative remedy.

1. Permission refused. Bourne J held that the pending review was a suitable alternative remedy for the proposed challenge.

2. The court applied the approach in In Re McAleenon [2024] UKSC 31: suitability is assessed by reference to the type of claim and the relief sought. A different process is not suitable if it cannot remedy the public law complaint.

3. The claimant argued that the decision introduced a requirement that he work “directly” on national security objectives, and compared the case with R (CX1 No.2) v SSHD [2024] EWHC 94 (Admin). The court was not persuaded that the challenge necessarily raised a point of law. If the Secretary of State relied on the claimant’s contractor status, the reason that affected his contribution required factual exploration. The review could address that inquiry and consider evidence available by the time it concluded.

4. The estimated delay did not make the review unsuitable in the circumstances. The review process could consider expedition, and the claimant’s request had been rejected on its merits. Allowing an earlier claim could disrupt the queue and divert scarce resources. Given the risks faced by people in Afghanistan and the scale of the ARAP exercise, the court considered the prospect of many similar claims to be real. The claimant’s circumstances did not provide a reliable or substantial distinction from those of other applicants.

5. The judgment records that the claimant had not been considered under the separate Afghanistan Response Route, but makes no further ruling on that issue. The court had regard to closed material and Special Advocate submissions received under orders made pursuant to section 8 of the Justice and Security Act 2013. No costs order was made at that stage; there was liberty to apply on notice.

The judgment records that judicial review proceedings issued in December 2024 were compromised by consent order on 14 February 2025. The Secretary of State withdrew the January 2025 eligibility decision and undertook to make a fresh decision. The fresh refusal, issued on 15 May 2025, was the subject of the present application for permission.