The Court of Appeal (CoA) ruled that the Government's decision to implement a highly restricted and secretive priority relocation policy for Afghan nationals whose safety was compromised was both a rational and lawful exercise of prerogative power.
Facts:
The case concerned two separate appeals brought by Afghan nationals (referred to as AFA and QP1) against decisions made by the Secretary of State for Defence and the Home Office concerning their applications for relocation to the UK. AFA worked between July 2011 and March 2019 as an armoured vehicle driver and security officer for various companies, assisting the Afghan Ministry of the Interior, which in turn was funded by the UK Government’s Strategic Support to the Ministry of the
Interior (SSMI) programme and the Strategic Support for Countering Violent Extremism (SSCVE) project. The other five appellants are the first appellant's wife and children. He applied for relocation under the Afghan Relocations and Assistance Policy (ARAP) in August 2021.
QP1 assisted the British and coalition mission in a variety of roles, including translating military vehicle manuals, working for non-governmental organisations (NGOs), including Médecins sans Frontières and Afghan Aid, while focusing on gender equality and gender-based violence issues. He applied for ARAP assistance in October 2021.
In February 2022, a catastrophic data breach occurred at the Ministry of Defence (MoD), and a dataset containing significant personal details of ARAP applicants was inadvertently shared beyond the MoD. The individuals affected, most of whom were resident in Afghanistan, were exposed to the risk of death, torture, or serious harm if their details fell into the hands of the Taliban. Following the data breach, the Government devised a secret policy to prioritise the relocation of those at greatest risk.
The Secretary of State declined to take further action on AFA's case, concluding that he did not fall within the highest-risk category because his role as an armoured vehicle driver was not identified as a high-profile role, nor was he deemed to be at equivalent risk.
Similarly, the Secretary of State decided that no assistance would be offered to QP1, finding that neither he nor his wife fell within the highest-risk category based on the new data breach relocation policy.
Both AFA and QP1 initially sought judicial review in the Administrative Court, which was dismissed, upholding the lawfulness and rationality of the Government's revised priority policy.
Decision:
The CoA dismissed both appeals. The Court rejected the argument that the Government's revised policy was irrational for failing to provide an individualised assessment of risk for every applicant. The Secretary of State was rationally entitled to draw the line—prioritising those in high-profile roles (including those in roles deemed "equivalent risk")—and this policy was deemed consistent within the law. The Court's role was not to determine where the best line should be drawn, but whether the line chosen was rational.
The Court determined that the policy for identifying the appropriate eligibility criteria (Stage 1) was created under the Royal Prerogative, rather than under the auspices of the Immigration Act 1971.
Implications:
This decision significantly restricts the path to entering resettlement programmes via judicial review for those individuals who do not fit within the Government's strict priority criteria. This means that individuals must successfully argue that their pre-existing role was sufficiently high-profile to place them within the highest-risk category, regardless of the danger posed by any data breach. The Court will not mandate the Government to conduct an individualised risk assessment for every person on a leaked list.
By classifying the policy as an exercise of the prerogative (Stage 1 eligibility), the Court effectively shielded the Government from the public law challenge of fettering discretion, which only applies to statutory powers. This finding validates the Government's ability to create and apply highly sensitive policy criteria without having to lay them out before Parliament as required by the Immigration Act, providing the power is properly sourced in the prerogative.
