Two Afghan nationals sought to enchantment the Excessive Courtroom’s dismissal of their challenges to the Dwelling Workplace’s resolution to refuse their purposes for relocation to the UK underneath the Afghanistan Response Route, the key relocation scheme arrange in response to the info breach in February 2022. In an OPEN model of a CLOSED judgment, the Courtroom of Enchantment dismissed the appeals and held that the Afghanistan Response Route, as amended after the court docket’s order in R (CX1 & others) v Secretary of State for Defence & one other [2024] EWHC 892 (Admin), was not irrational and subsequently not illegal. The case is R (AFA & Others) v Secretary of State for the Dwelling Division & one other (OPEN Judgment) [2025] EWCA Civ 825.
Background
Each appellants made purposes underneath the Afghan Relocations and Help Coverage on behalf of themselves and their dependants in August and October 2021.
The primary appellant, AFA, labored as an armoured car driver and safety officer for numerous corporations, aiding the Afghan Ministry of the Inside, which was funded by the UK authorities funded Strategic Assist to the Ministry of the Inside (SSMI) program and the Strategic Assist for Countering Violent Extremism (SSCVE) mission. The primary appellant’s spouse and youngsters are dependants on the declare.
The second appellant, QP1, supported the supported the British and Coalition mission earlier than the Taliban takeover. His work included translating army car manuals for Afghan safety forces, aiding NGOs, representing Afghan missions overseas, and serving as a mission officer for Afghan Support and different UK humanitarian organisations, together with in roles targeted on gender equality and gender-based violence. The second appellant’s spouse is a dependant on the declare.
The case was heard within the Courtroom of Enchantment in Might 2025, at which era the primary appellant was difficult the delay in making a choice in his substantive ARAP utility in OPEN proceedings. The primary appellant’s problem to the refusal of his ARAP utility was lately dismissed by the Excessive Courtroom.
In the meantime, the second appellant was difficult the Dwelling Workplace’s resolution to refuse his substantive ARAP utility. On 10 June 2025, the Excessive Courtroom dismissed this problem.
Each appellants have been affected by the Ministry of Defence’s knowledge leak incident and subsequently probably got here throughout the remit of the Afghanistan Response Route.
Within the instances of each appellants, the Secretary of State for Defence knowledgeable the respective Particular Advocates in CLOSED proceedings that the appellants have been ineligible for relocation underneath the Afghanistan Response Route as a result of they didn’t fall throughout the ‘excessive threat’ class.
The appellants sought to problem these choices in CLOSED proceedings within the Excessive Courtroom.
Within the problem by the primary appellant, AFA & others, the Excessive Courtroom discovered that, even when making use of anxious scrutiny and the Wednesbury rules, the Secretary of State was not appearing unlawfully by limiting their evaluation to the roles carried out by candidates when contemplating whether or not to relocate people affected by the info breach to the UK. The court docket accepted the Secretary of State’s evidential foundation for the coverage, emphasising useful resource, operational and immigration considerations, and the issue of assessing threat for these exterior the outlined ‘excessive profile’ roles. The Courtroom additionally rejected the primary appellant’s second floor superior on the premise of Article 8 ECHR, and held that this floor was “unrealistic” and unapplicable.
The declare for judicial assessment was accordingly dismissed by the Excessive Courtroom on 18 July 2024.
Within the problem by the second appellant, QP1 & Anor, the Excessive Courtroom highlighted the impact of CX1 and others, specifically that in figuring out whether or not to relocate somebody underneath the Afghanistan Response Route, it was lawful on the degree of coverage for the federal government for the Secretary of State to contemplate whether or not a related applicant was a ‘excessive profile’ individual performing one of many roles within the Ministry of Defence’s record, or was an individual performing one other ‘excessive profile’ position placing them at successfully equal threat. The second appellant’s spouse, whose knowledge was not compromised, was not related to the declare.
The problem was in flip dismissed by the Excessive Courtroom on 23 July 2024.
The appellants sought to enchantment the selections of the Excessive Courtroom to dismiss their claims for judicial assessment.
Grounds of enchantment
Each appellants sought to enchantment on the premise that the respondents’ coverage on relocation was irrational and subsequently illegal. The primary appellant additionally sought to enchantment on the bottom that the respondents unlawfully fettered their discretion in devising and making use of the Afghanistan Response Route.
The judgment
In its judgment, the Courtroom of Enchantment famous the judgment of the court docket within the case of CX1 and others, the place the court docket present in favour of the claimants, quashing the Secretary’s of State’s resolution to not relocate them underneath the Afghanistan Response Route and requiring them to rethink their instances.
The Courtroom of Enchantment highlighted that following the court docket’s order in CX1 and others dated 23 April 2024, the Divisional Courtroom directed, at paragraph 5, that the Secretary of State for Defence “shall rethink the strategy to be taken to figuring out these throughout the highest threat cohort for the needs of the 25 March coverage” by 14 June 2024.” In a letter dated 14 June 2024 the Authorities Authorized Division confirmed that the Secretary of State had undertaken that reconsideration and had decided:
that the very best threat cohort for the needs of the 25 March coverage includes high-profile people who both (i) held one of many roles recognized within the MOD’s record; or (ii) held a special position which places them at equal threat to these within the recognized roles.
Turning to the grounds within the on the spot case, the court docket thought of the appellants’ argument that the respondents’ underlying coverage was illegal. The court docket endorsed the strategy in CX1 and others, notably the seven “essential contextual options”, noting these options made “the crafting of a coverage that will be each simply and workable very troublesome.” The court docket additionally emphasised the significance of anxious scrutiny on this context due to the potential threat to life, a degree raised and emphasised in CX1 and others. The court docket went additional to focus on that the potential threat to life could be mentioned to have arisen on account of the “mistaken conduct of the British authorities”.
Nonetheless, noting the modification to the coverage in gentle of the judgment in CX1 and others, the Courtroom of Enchantment in the end rejected the bottom of irrationality of the underlying coverage and held that the respondents have been entitled to “draw the road the place they’ve” when it comes to limiting the Afghanistan Response Path to high-profile roles solely.
The primary appellant argued that the respondents unlawfully fettered their discretion in devising and making use of the relocation coverage. As mentioned within the case of CX1 and others, the doctrine of the fettering solely applies the place a statutory discretion exists, and right here the coverage was made and utilized underneath prerogative powers, not statute. The primary appellant argued that the Afghanistan Response Route was not created underneath prerogative and there have been two sources of statutory discretion, specifically the Immigration Act 1971 and part 6 of the Human Rights Act.
The court docket rejected these arguments. It famous that though the train of powers to regulate go away to enter and stay within the UK have been created by statue, the formation and adoption of the Afghanistan Response Route, which was a background coverage of relocation, is an train of the prerogative. The court docket additionally rejected reliance on the Human Rights Act as a supply of discretion, noting that the Act creates duties, not powers, and doesn’t itself confer decision-making authority.
While the Courtroom of enchantment famous the “pure sympathy” that the appellants’ instances attracted, each appeals have been in the end dismissed.
