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

This claim for judicial review challenges (1) the defendants’ decision dated 1^st July 2025 to close the Afghan Relocations and Assistance Policy (‘ARAP’) scheme to new applications without notice and (2) the defendants’ refusal dated 15^th August 2025 to consider a future ARAP application from the claimant, after the closure of the scheme.

The claimant has been anonymised in these proceedings as EBA and his son has been referred to as EBAS.

The claimant’s case is that he is the father of a former member of Commando Force 333 (‘CF-333’), one of the Afghan Special Forces Units commonly referred to as ‘the Triples’, which worked very closely with United Kingdom Special Forces (‘UKSF’) during the UK’s military engagement in Afghanistan which ended in August 2021 when Kabul fell to the Taliban; that after a period in hiding, his son was murdered by the Taliban at the family home in 2023; that the claimant and other family members have since been repeatedly threatened by the Taliban; and that these threats eventually forced the claimant to the conclusion that he needed to make an ARAP application for his own and his family’s safety.

The claimant’s challenge depends in part on the submission in principle that the closure of the ARAP scheme without notice was unlawful and in part on correspondence between his solicitors and the defendants in which his solicitors sought to find out whether an ARAP application had already been made by his son before his death. This correspondence culminated in a letter dated 3^rd June 2025, in the event less than four weeks before the closure of the scheme. In this letter the defendants confirmed that no ARAP application by the claimant’s son could be found, but said that the claimant could nonetheless make an ARAP application himself. It contained no indication that the scheme might be closed without any period of notice giving potential applicants a final opportunity to make an application.

In summary, Ms Charlotte Kilroy KC advances five grounds of challenge on behalf of the claimant:

Ground 1A was introduced by amendment after permission had been given for the existing grounds 1 to 4. The claimant therefore needs permission for this ground to be pursued.

It is important to make clear that we are not concerned with the morality of the decision to close the ARAP scheme to new applications without notice. That is a matter of political and moral judgment on which views may differ and which was for Ministers, who are democratically accountable, to decide. We are concerned only with whether the challenged decisions were unlawful, applying principles of public law.

Applying those principles, I have concluded that this claim must be dismissed. The decisions in issue were not unlawful.

The ARAP scheme was announced on 29^th December 2020. It was launched on 1^st April 2021 jointly by the Defence Secretary and the Home Secretary. It was a concessionary scheme established under prerogative powers, which followed previous policies in place between 2010 and 2022 providing for redundancy payments, training and relocation to a small number of Afghan nationals employed by the UK Government in Afghanistan.

ARAP guidance published by the Home Office entitled ‘ARAP Relocations and Assistance Policy (ARAP)’ (the ‘ARAP Guidance’) indicates that ARAP ‘is for Afghan citizens who worked for or with the UK Government in Afghanistan in exposed or meaningful roles and may include an offer of relocation to the UK for those deemed eligible by the Ministry of Defence (MoD) and who are deemed suitable for relocation by the Home Office’. The policy has been described as a ‘means of showing commitment and paying a debt of gratitude towards those who had worked for or with the United Kingdom Government in Afghanistan’ (R (LND1) v Secretary of State for the Home Department [2024] EWCA Civ 278, [2024] 1 WLR 4433, para 8).

The scheme was implemented within Part 7 of the Immigration Rules, and was subsequently codified as Appendix ARAP to the Immigration Rules. This Appendix explained that there would be a two-stage process for applications. The first stage was concerned with an applicant’s eligibility. The eligibility requirements included, in ARAP 3.6, that a person:

The Appendix permitted an applicant to include in their application a partner (but only one partner), minor dependent children and additional family members. The ARAP Guidance explained that the eligibility of additional family members must be based either on vulnerabilities leading to exceptional dependence or on the threat of risk to life as a result of the work of the principal applicant. It went on to say that compelling reasons to demonstrate an elevated level of risk directly connected to the work of the principal applicant would be required.

There was a two-stage process. First, decisions on eligibility were made by the Ministry of Defence, if necessary with the assistance of other departments. If an applicant was assessed as eligible, the Ministry of Defence would make an entry clearance application to the Home Office. The second stage was for the applicant and any others included in the application to submit biometrics and for the Home Office to carry out security checks and determine the applicant’s suitability. If the applicant and eligible family members were determined to be suitable and underwent successful tuberculosis screening, the Home Office would grant UK entry clearance, having effect on arrival in the UK as indefinite permission to enter for settlement.

Appendix ARAP did not make provision for family members to apply to come to the UK under the scheme if the principal applicant had died. However, the ARAP Guidance stated that, on a concessionary basis, bereaved family members would be considered as if the principal had not died, in two circumstances. The first was when the principal Afghan citizen had applied for support or relocation under the ARAP scheme before their death and the family members had been included in the application. The second was when the principal Afghan citizen did not submit an application while they were alive. It would therefore be important, when the principal Afghan citizen was dead, to know whether they had submitted an application before their death. If so, only those family members included in that application would qualify for consideration under that application. Family members who were not included would have to make a separate application if they wished to be considered.

One category of Afghan citizens potentially eligible for relocation under the ARAP scheme consisted of those who had served in the ‘Triples’, which included CF-333. This was an Afghan counter-narcotics unit set up in 2002, which later conducted counter-terrorism and counter-insurgency operations, working closely with UKSF. As explained by this court in R (TPL1) v Secretary of State for Defence [2025] EWHC 1729 (Admin) as recently as 8^th July 2025, one week after the ARAP scheme was closed to new applications:

‘16. The work of the Triples has placed members of the Triples at high levels of risk from Taliban reprisals. Some former members of the Triples have been tortured and some have been killed by the Taliban since the departure of UK forces from Afghanistan in August 2021. Members of the Triples who have not relocated to the UK are in Afghanistan, Pakistan and Iran, where the evidence shows that they remain at risk.’

About 185,000 ARAP applications were made by Afghan citizens up to April 2025, although many of these were duplicates. Of the 185,000, about 40,000 applications were by Afghans claiming to be members of the Triples. After eliminating duplicates there were about 27,000 separate such applicants. This compares with a total of 5,000 Afghans who had actually served in these units, which means that the great majority of Triples applications were not genuine. The large number of ARAP applications has caused considerable administrative difficulties and resource issues and has resulted in a substantial backlog.

The procedure adopted by the Ministry of Defence was to refer applications from persons claiming to be members of the Triples to UKSF to determine whether the claims were genuine. It transpired, however, that in none of 1,585 cases referred to UKSF during one period was the applicant found to be eligible. This gave rise to serious concerns, in the media and in Parliament, about the efficiency and reliability of the decision-making process.

These concerns led to a review being carried out in late 2023 (‘the Gold Review’) which identified a number of issues affecting decision-making relating to the Triples. These are described in TPL1, paras 30 to 37, and included a failure to have regard to UK-held records of payments made to members of the Triples. The upshot was a recommendation to Ministers in January 2024 that a tranche of Triples cases which had been referred to UKSF should be re-assessed.

The recommendation was accepted and what has been described as the Triples Review began on 24^th March 2024. In a statement on 14^th October 2024 the Minister for the Armed Forces confirmed that about 2,000 cases were within the scope of the Review, that more than 1,500 of these had so far been reviewed, and that there was an expected overturn rate of about 25%. He announced that pay records had recently been discovered relating to the Triples, which had not been and would now need to be considered. This led to what has been described as Phase 2 of the Triples Review.

By 16^th May 2025, when the Minister provided a further update in a ministerial written statement, the overturn rate had risen to about 30%, that is to say that in about 600 of the 2,000 cases included in the Review, applicants who had previously been wrongly found to be ineligible were now found to be eligible.

The Triples Review eventually completed on 26^th March 2026, with 884 ineligibility decisions being overturned.

Although the Triples Review forms part of the background to the present claim, the claimant’s son would not have been directly affected by this episode unless he had submitted an ARAP application which had been refused. In the course of the review, Ministers acknowledged that many members of the Triples remained ‘in grave circumstances’ and referred to ‘the perilous situation in which many former Triples still find themselves’ (see the written ministerial statements by the Minister for the Armed Forces on 9^th September and 14^th October 2024).

In February 2022 a dataset containing details of some 18,800 Afghans and their family members who had applied for relocation to the UK under the ARAP scheme and its predecessor on the ground that they were at risk from the Taliban was released in error from the Ministry of Defence. The Ministry became aware of this data breach in August 2023 when a part of the dataset was published on a Facebook page. This led to the grant of a super-injunction which prevented not only the reporting of details of the data breach, but also the fact of the super-injunction itself.

The super-injunction was granted, and was renewed on numerous occasions, because of the risk that if the Taliban learned about the existence of the dataset, it was likely that they would be able to acquire it and would use it to identify those who had applied for relocation and to target them for extra-judicial killing or severe physical ill-treatment as a result of their work with or for the UK Government.

As a result of the data breach the Ministry of Defence and the Home Office developed what was described as the Afghanistan Response Route (the ‘ARR’). This secret policy provided for the relocation of individuals impacted by the data breach who were determined to be at highest risk of targeting by the Taliban. It had to be carried out without revealing the fact of the data breach to those affected.

The super-injunction continued in force until 15^th July 2025, when it was discharged by Mr Justice Chamberlain (Ministry of Defence v Global Media and Entertainment Ltd [2025] EWHC 1806 (Admin)). It was discharged following a review by a retired senior civil servant, Mr Paul Rimmer. At about the same time the ARR was discontinued. Mr Rimmer concluded that although ‘killings are undoubtedly still occurring, and human rights violations remain extensive’, by this time (June 2025) acquisition of the dataset by the Taliban (if they did not already have it) was ‘unlikely to substantially change an individual’s existing exposure given the volume of data already available’; that it appeared ‘unlikely that merely being on the dataset would be grounds for targeting’; and that it was ‘therefore also unlikely that family members – immediate or more distant – will be targeted simply because the “Principal” appears in the dataset’.

It appears that the claimant’s son was not one of those named in the dataset (which he would not have been if he had not applied under ARAP). However, this data breach is relevant to the present claim because of the concern within government, which existed by early 2025, that the fact of the data breach was likely to become public knowledge in the near future, an event which was referred to as ‘break glass’. It was anticipated that, if this occurred at a time when the ARAP scheme was still open, there would be a very significant spike in the number of applications. This was to be an extremely important consideration in deciding when and how to close the scheme.

In October 2024 Ministers across government agreed that work should be done towards ending the ARAP scheme, which had never been intended to remain open indefinitely. Similar schemes in other countries had already closed.

On 18^th December 2024, in a written ministerial statement, the Defence Secretary indicated his intention to bring Afghan resettlement schemes to a close. He said:

‘Alongside British personnel, many Afghans also worked with commitment and courage to support the UK mission in Afghanistan. This includes members of Afghan specialist units, commonly known as the Triples, who fought valiantly alongside UK personnel, with some giving their lives and others suffering life changing injuries. …

This Government are fully committed to delivering on the pledge made by Parliament to those in Afghanistan who are eligible to relocate and resettle, and we continue to welcome eligible Afghans and their families to the UK through our Afghan resettlement schemes. …

Over the past 12 months, we have welcomed around 90 eligible families each month and we expect this pace to continue. This cannot, however, be an endless process and ultimately, the Government intend to reach a position where the UK Afghan resettlement schemes can be closed. We will update the House on this accordingly.

We are grateful for the cross-Government commitment and approach to delivery on this important program and will provide further updates in the new year. We will continue to work to deliver on our commitment to resettle those eligible Afghans who have supported the UK, and to whom we owe a debt of gratitude.’

On 21^st February 2025 a submission to Ministers in the Ministry of Defence recommended that ARAP should be closed to new applications as soon as possible and in any event by summer 2025, with a 21 day notice period, and that a business case for additional resources should be prepared. This would enable the majority of eligibility case working to be completed by the end of 2026 and most successful applicants to be relocated to the United Kingdom by the end of the current Parliament (i.e. by mid-2029). The submission noted what was perceived to be the increased likelihood of ‘breaking glass’ and recommended that ARAP should be closed as soon as was feasible ‘to try and ensure a gap between the two events’.

Evidently it was thought desirable that the scheme should be closed before the data breach became public knowledge. At this stage, however, it was not recommended to close the ARAP scheme without giving any notice. Rather, the standard convention would be applied whereby changes to the Immigration Rules would take effect 21 days after being laid before Parliament. Nevertheless, even at this stage there was a concern that giving advance notice of the closure of the scheme would lead to a spike in applications, and that this would be particularly acute after a break glass event. It was thought that if break glass occurred before closure of the scheme, there would be a ‘staggering spike’ in the number of applications, which would be operationally unmanageable.

The submission also recorded that about 20,000 Afghans had so far been relocated and that a further 32,000 were expected to be relocated under ARAP and ARR over the next five years. The existing backlog consisted of some 20,000 cases, which it was thought would take five years to review, with new applications (half of which duplicated existing applications) coming in at the rate of 1,250 each month. The submission suggested that it was reasonable to conclude that the vast majority of those likely to be found eligible would have made their applications by this time, while those who had not applied had had ample time to do so; and that to keep the scheme running for a small number of potential future successful applicants would be disproportionate, particularly as during the last six months 90% of all applications assessed had been unsuccessful.

It is apparent that it remained a major concern that giving any advance notice of the closure of the ARAP scheme would cause a significant spike in the number of applications. This was not dependent on a break glass event, although it was expected that the spike would be much greater if such an event occurred while the scheme was still open. That would overwhelm the system and could lead to individuals at high risk being delayed in their relocation, to wrong decisions being made at pace and to increased litigation due to delays in decision-making. Consideration was therefore given to limiting or eliminating the notice period, and to the advantages and disadvantages of doing so, but this was not recommended at this stage.

It was recognised that closing the ARAP scheme ran the risk that some people who would have been eligible would be unable to apply, but this cohort was thought to be small in number.

It appears from a Home Office ministerial submission that by 18^th March 2025 the Defence Secretary wished to announce the closure of the ARAP scheme before the parliamentary Easter recess (i.e. by 3^rd April 2025), with a period of one month for all final applications to be made. At this time it appears that the view was taken that providing no notice was unlikely to be politically tenable, although it was recognised that this had been done in the past, for example when closing the Ukraine Family Scheme, in order to avoid a surge in last-minute spurious applications. Again, however, there was concern that if an announcement with a notice period were to coincide with a break glass event, the spike in applications which could occur would be operationally unmanageable. It was recognised also that it would not be possible to explain to Parliament ‘some of the core reasons driving the MOD’s need to close the ARAP in the pre-break glass period’ because of the super-injunction. The submission referred to being ‘as honest as possible to Parliament’, which was evidently an uncomfortable position in which Ministers found themselves. At this stage it was considered to be a realistic possibility that break glass could occur as soon as June 2025.

Despite the Ministry of Defence’s wish for an early announcement, the view of the Home Office was that this was not achievable because amendments to the Immigration Rules would be required and parliamentary scheduling would not allow this to happen before Easter. Discussions between the two departments as to the timing and content of any announcement therefore continued. It appears that they included a request by the Home Secretary that closure without notice should be considered, as well as a request for assurances about what the Ministry of Defence had done to minimise the risk of an uncontrolled break glass event (i.e. otherwise than as a result of a court order).

A ministerial submission to the Minister for the Armed Forces dated 29^th April 2025 presented options for the timing of ARAP closure in the light of these discussions. The recommendation (Plan A) was that the announcement should be made during the week commencing 12^th May 2025 and that the scheme should be closed without notice on the same day as the announcement. This was the first occasion on which the recommendation was to close the scheme without notice. The reason for this change of recommendation was that the number of people aware of the data breach was increasing, with an increased risk of an uncontrolled break glass event occurring in the near future. It was recognised that closure without notice would attract criticism, but this was said to provide ‘the best chance of ARAP closure ahead of BG [break glass]’.

Alternatives were suggested which would have allowed a seven day notice period (Plan B) or following the 21 day convention (Plan C). The submission observed that ‘the choice between Plan A and C largely comes down to risk appetite and presentational priorities’.

The Government’s intention to close the ARAP scheme was reiterated on 16^th May 2025 in a written ministerial statement by the Minister for the Armed Forces. He said that:

‘… Finally, as the Defence Secretary set out in his statement in December, the Government intend to reach a position where the UK Afghan resettlement schemes can be closed. We will update the House on this accordingly.’

The statement did not say anything specific about the timing of any decision or whether the announcement of the closure would take effect immediately or only after a period of notice. Nor, for obvious reasons, did it say anything about the data breach, the super-injunction or the possibility of a break glass event occurring in the near future or about the impact which these factors might have on the decision to close the scheme.

By 13^th June 2025 the Defence Secretary had accepted the Home Secretary’s suggestion that the ARAP scheme should be closed without notice and recommended that this be included in the package of changes to the Immigration Rules to be laid before Parliament on 1^st July 2025. The Home Secretary was asked to agree to this recommendation. She did so on 17^th June 2025.

On the same day the matter went before the Parliamentary Business and Legislation (PBL) Cabinet Committee to implement this decision. Because not all the members of this Committee were aware of the data breach and the super-injunction, this had to be done without referring to those matters. The submission to the PBL Committee noted that the Ministry of Defence and the Home Office were currently receiving thousands of applications under the ARAP scheme each month, over 95% of which were found to be ineligible, and that there was now an existing backlog of 27,000 applications. It recognised that closure without notice would not comply with the 21 day convention, but stated that providing notice would lead to a spike in applications, a high proportion of which would be from individuals who were not likely to be found eligible; and that the Ministry of Defence considered that the majority of those who were eligible had already applied. It recognised also that there was likely to be a high level of parliamentary and media interest in the decision to close the scheme.

Although the decision to close the ARAP scheme without notice was made on 17^th June 2025 when the Home Secretary finally agreed with the Defence Secretary’s position, it appears that a final review of this decision was carried out within the Ministry of Defence on 26^th June 2025. By this stage it was thought to be a reasonable assumption that the earliest date for breaking glass would be 7^th July 2025, but the review pointed out that this could not be guaranteed. Two scenarios were considered. The first was that there was a controlled break glass event while the ARAP scheme remained open. This was described as likely to cause severe operational risk, with an inevitable surge in ARAP applications exacerbating an already difficult situation:

‘7. Keeping ARAP open at BG will cause severe operational risk. ARAP casework is already slow due to its complex nature, and it is litigation intensive. With a current backlog of over 30k eligibility cases and 135 live legal challenges (over a third of which are delay-related) the inevitable surge in applications post-BG would exacerbate this to an unmanageable level. Even with the newly approved resourcing levels, completing the programme within this Parliament quickly becomes very unlikely. …

9.

Leaving ARAP open for a month, or even a week post-BG, would provide more than enough time to inflict this operational damage to DARR’s current capacity. The only mitigation to this risk is closure before BG.’

A footnote added that after a written ministerial statement about the Triples in October 2024, the rate of ARAP applications had spiked by 300%, and that it was expected that the impact of announcing break glass would precipitate an even higher spike.

The second scenario was that ARAP would be closed on 1^st July 2025, followed by a controlled break glass event a few weeks later.

This review did not lead to any change to the existing decision to close the ARAP scheme on 1^st July 2025 without giving any prior notice.

The Statement of Changes to the Immigration Rules was laid before Parliament on 1^st July 2025. It provided for the closure of the ARAP scheme to new applications with effect from 15:00 hours BST on that day. It did so by introducing a new requirement for eligibility, namely that an application under the scheme had been made before this deadline.

The Appendix continued to provide, as it had done before this change, that an application which did not meet all the suitability and eligibility requirements of the scheme (now including the making of an application before the deadline) would be refused. There was no provision for any exercise of discretion. If the requirements were met, the application would be granted; otherwise it would be refused.

Under the negative resolution procedure it was open to any Member of either House of Parliament to submit a motion within 40 days to disapprove the Statement of Changes, in which case it would not take effect if either House passed such a resolution.

The accompanying Explanatory Memorandum stated (among other things) that:

‘6. Legislative and Legal Context

6.4

Due to the reasons set out above in section 5, and in section 11, these changes will come into effect at 15:00 BST on 1 July 2025 as also detailed in the implementation section of the accompanying Statement of Changes. …

9.

Impact Assessment

9.5

Closing the ARAP to new principal applications to the MOD after 15:00 BST on 01 July 2025 will impact eligible individuals who would have otherwise applied after this point. Those who have not yet made applications will be unable to do so following immediate closure on announcement. …

9.6

The MOD has seen 13,000 new principal applications since October, with new applications still being received. The impact of the closure of the scheme with no notice period will prevent a spike in last minute applications and mitigate against an increase to the backlog of outstanding applications that need to be considered for eligibility by the MOD. Data on the expected volume of future applicants are not available, meaning it is not possible to quantify the expected impact of closing ARAP. …

9.8

There is a risk that closure of ARAP will displace applications from the MOD to the Home Office, either in the form of asylum claims, considerations for leave outside the rules, or other applications on family and human rights grounds. Similarly, there is a risk that eligible individuals will remain at risk, or will seek to use irregular routes, including small boats, following the closure of ARAP. The latter would result in wider costs to Government. However, it is not currently possible to estimate these potential impacts. …

11.

Matters of special interest to Parliament

11.1

These changes will come into effect at 15:00 BST on 1 July 2025 and therefore depart from the usual convention that changes to the Immigration Rules come into force no earlier than 21 days after their being laid in Parliament.

11.2

The ARAP scheme remaining open will lead to a growing backlog of cases for the MOD to consider. The rationale for breaching the 21-day convention is that the MOD anticipates that the closure of the route with 21-days’ notice, or less, would lead to a spike in applications, with the expectation that these would likely feature a high proportion of applications from individuals who are not likely to be found ARAP eligible, with over 95% of all applications submitted to date being duplicates or ultimately found ineligible. This would further increase the backlog of ARAP applications and, in turn, risk increasing the time it will take to process existing applications.

11.3

The MOD also considers that the majority of those who would be eligible for ARAP have now applied and considers the ARAP to have fulfilled its original purpose such that it can be closed to new principal applications. By bringing the scheme to a close with immediate effect, the MOD can focus on growing priority issues elsewhere and re-allocate critical defence resource currently assigned to servicing and case working the ARAP to where they are most needed – on our nation’s security, to combat the acute threats and destabilising behaviour of our adversaries.

11.4

An immediate closure will also allow the MOD to process outstanding ARAP applications more efficiently, mitigating delay for existing applicants who may be found eligible for ARAP and move Afghan friends and allies to safety in the UK at a reasonable pace.’

The Explanatory Memorandum did not and could not refer to the data breach or the super-injunction.

The Defence Secretary has not denied that, after the closure of the ARAP scheme, he has been prepared in some cases to exercise a discretion to re-open previously concluded ARAP applications. I am prepared to assume that he has done so, in order to determine whether a conclusion that an applicant was ineligible for the scheme should be overturned in the light of further information or representations.

However, such cases only occurred where an application had been made and refused before the closure of the scheme. They do not demonstrate any willingness to consider new ARAP applications after the closure of the scheme by an applicant who had made no application before the closure on 1^st July 2025. They are therefore irrelevant to the present claim.

The claimant’s case is that his son, EBAS, served as a sergeant on active operations with CF-333 for about a year until Kabul fell to the Taliban in August 2021. A former officer of CF-333, referred to as TPL1, says that he remembers signing transfer papers to accept EBAS into CF-333 and knew him well. He says that on 15^th and 16^th August 2021 they were together at the Baron Hotel at Kabul Airport, the base for the UK’s evacuation efforts after the Taliban took over Afghanistan.

The claimant says that after the fall of Kabul, EBAS was in hiding because it was not safe for him to come home. However, he did come home for a funeral in 2023 and his presence in the area became known. The claimant describes two Taliban members coming to the family home on motorbikes. They said that they knew that EBAS was there and wanted to talk with him. They said that they wanted information about weapons and military vehicles. The claimant invited them to eat and went into the kitchen to prepare food when he heard gunshots outside. Outside the house, he found EBAS shot in the head and the Taliban gunmen already in the distance.

The claimant says that some days later a group of Taliban came to the house wearing masks and scarves and wanting to search it. He says that they threatened to kill the whole family if he told anyone what had happened, that they knew that EBAS had worked with CF-333, that he must have hidden weapons and vehicles from the unit, and that the claimant must know about their location. They then searched the house.

The claimant says that the family moved away to try and keep safe, but the Taliban came to their new home once or twice a month, asking about vehicles, weapons and money from CF-333, until March 2025. Again the family moved house, but visits from the Taliban continued.

At some point in early 2025 the claimant contacted TPL1 to ask for his help. It was TPL1 who referred the claimant to his solicitors. The claimant says that he did not know about the possibility of obtaining legal help before this, or how to access the ARAP scheme, but the implication of his statement is that he did know about the scheme itself from about the time when his son was killed. It is apparent from the number of applications made under the scheme that its existence was widely known in Afghanistan.

TPL1 says that he is certain that EBAS made an ARAP application before his death. They spoke about it together and EBAS told him that he had an ARAP reference number, although he did not tell him what it was.

The claimant’s solicitors, Deighton Pierce Glynn (‘DPG’), were instructed on 27^th February 2025. The claimant told them that he believed that his son had submitted an ARAP application, but he had no documentary evidence of this. DPG submitted a Subject Access Request to the Ministry of Defence, providing a copy of the claimant’s and EBAS’s ID documents, a post-mortem report into EBAS’s death and an announcement of the death on social media.

On 24^th March 2025 DPG wrote to the ARAP Casework team at the Ministry of Defence explaining that it was believed that EBAS had submitted an ARAP application before his death, but that because his mobile phone had been broken when he was killed, they were unable to locate his ARAP reference number. The letter explained that the claimant and his wife and children continued to face risks as a result of EBAS’s previous employment and wished to make an application under the relevant concessionary rules. They asked for confirmation of the status of EBAS’s ARAP application including, if it was refused, a copy of the decision letter. A copy of EBAS’s Afghan National police ID card was enclosed.

The ARAP Casework team requested the email address used by EBAS to make his ARAP application in order to enable the team to conduct their searches. However, DPG responded on 10^th April 2025 that they were unable to provide this, although they did provide two phone numbers used by EBAS together with further identifying information such as his Afghan police ID number.

DPG chased for a response on 14^th and 29^th April and again on 8^th May 2025 when they referred to a potential pre-action letter for judicial review challenging the delay in responding. On 3^rd June 2025 the Government Legal Department (‘GLD’) replied as follows:

‘My clients have searched for records of an application relating to your client’s son [EBAS], they have used the information provided by yourself which would be captured in an ARAP application.

They have not located an application related to the information provided, as stated in your letter it remains open to your client to submit an ARAP application.’

This response did not refer to the fact that the ARAP scheme would be closed shortly (in the event in four weeks’ time, although the date had not yet been decided). Nor did it refer to the fact that closure without any period of notice was being considered (at this time this was being considered but the decision to close without notice had not yet been made). There was nothing in the letter to indicate that the conclusion that EBAS had not made an ARAP application was anything other than final.

The letter also provided a link to the online ARAP application form. This form enabled an application to be made with the provision of only high-level information about the applicant. There was no requirement to provide detailed supporting evidence at this stage. It would therefore have been possible for DPG to make an application on the claimant’s behalf more or less immediately, but they did not do so.

On 22^nd July 2025, after the ARAP scheme had closed to new applications, DPG wrote to the GLD requesting that the Ministry of Defence make further efforts to locate EBAS’s ARAP application and providing evidence of his work with CF-333. They said that if this could not be located, a new application on behalf of the claimant would be submitted, and asked for confirmation that this would be accepted as an ARAP application:

‘If our client is forced to submit a new ARAP application, in light of the difficulties faced by our client in obtaining the necessary evidence of his deceased son’s CF-333 service; the 10-week delay to respond to our letter of 24 March 2025; and the unexpected and immediate closure of the ARAP scheme, please confirm that your clients will exercise their discretion to accept our client’s ARAP application, in the unusual circumstances of this case.’

I would make three comments on this letter. First, the primary position adopted on behalf of the claimant continued to be that EBAS had made an ARAP application while he was still alive. If that was so, the claimant would not be affected by the closure of the scheme to new applicants. Second, the letter was not itself (and did not purport to be) an ARAP application, but only an indication that such an application would be made if it was confirmed again that what was believed to be the existing application could not be located. Third, it was wrong to say that the closure of the ARAP scheme was unexpected. On the contrary, the fact that the Ministry of Defence intended to close the scheme had been announced publicly. What may have been unexpected was that this had been done without any period of notice giving potential applicants a final opportunity to make their application.

The response by the GLD dated 15^th August 2025 confirmed that, after a search of the Ministry of Defence records using the information provided by DPG, as well as conducting further reviews of relevant pay records, there was no outstanding application by EBAS. It stated that ARAP was now closed and no longer available, adding that ‘the UK is not required, and indeed cannot, accept an application to an immigration scheme which is now closed’ and continuing that:

‘Insofar as your letter seems to suggest that our clients should exercise their discretion to accept your client’s ARAP application given the “unusual circumstances of this case” it is not open to our clients to do so. … As clearly explained on the gov.uk website – ARAP policy:

“All ARAP applications received before the scheme closed on 1 July will be processed, but new principal applications will not be accepted after this point. Those who are found eligible will still have their immediate family members – such as one spouse and children under 18 – automatically considered for relocation. They will also have 30 days from accepting their ARAP offer to make an application to relocate any additional family members to the UK. However, no new applications will be accepted following the closure of the scheme”.’

Finally, the letter rejected any suggestion that the claimant alone should have been informed about closure of the ARAP scheme before this was formally announced and drew attention to the Defence Secretary’s announcement in December 2024 of the Government’s intention to bring the scheme to a close.

It is worth pointing out some of the things which we are not deciding. First, we have not been asked to decide whether as a matter of fact the claimant’s son, EBAS, did make an application under the ARAP scheme while he was alive. Rather, this claim for judicial review has been argued on the basis that he did not. This means that any problems arising out of the way in which the Triples Review was conducted are not directly relevant, although the Review forms part of the background to this claim.

Second, we are not deciding whether an application under the ARAP scheme by EBAS would have succeeded if made in time or should now be dealt with as if it had been made in time. Sadly, it is too late for those questions to arise.

Nor are we deciding whether an application by the claimant and other members of his family would now succeed if such an application were to be treated as made under the ARAP scheme (i.e. if the eligibility requirement for an application to be made before 15:00 hours on 1^st July 2025 were to be ignored). It is worth pointing out, however, that the claimant and other family members of EBAS on whose behalf this claim for judicial review is brought do not fall into the categories (partner and dependent minor children) who would have been entitled to relocation in the United Kingdom under the ARAP scheme without satisfying any additional requirements. Rather, they are additional family members whose eligibility under the scheme would in the case of each family member have depended either on demonstrating vulnerabilities leading to exceptional dependence (which have not been suggested) or on showing compelling reasons to demonstrate a risk to their life directly connected to the work of EBAS. The question whether they or any of them would have been or would now be able to satisfy this requirement does not arise for decision in these proceedings. Appalling as the circumstances of EBAS’s death were, it is not a foregone conclusion that they would be able to do so.

The decision to set up the ARAP scheme was distinctive and unusual. It was a policy decision in the prerogative field of foreign and security affairs. No pre-existing UK domestic or international legal obligations were engaged. As explained by Lord Justice Singh in R (AFA) v Secretary of State for the Home Department [2025] EWCA Civ 825, paras 53-55, with reference to the judgment of Lord Justice Underhill in S & Another v Secretary of State for the Home Department [2022] EWCA Civ 1092, although the terms of the ARAP scheme were contained in an Appendix to the Immigration Rules, the policy was not adopted in exercise of a function under the Immigration Act 1971. The rationale for the unilateral decision to admit to the UK a new limited class of overseas foreign nationals was to respond, as a matter of substantive fairness (‘paying a debt of gratitude’: see para 10 above), to an acute situation consequent on the UK’s military withdrawal from Afghanistan.

It was therefore for the executive to decide for how long the scheme should run and when and how it should be closed. It can never have been thought that the scheme would remain open indefinitely.

In principle, therefore, the executive was entitled to formulate a policy for closure of the scheme which would ensure that it was indeed closed to new applications, and to take the necessary steps to give effect to that policy. It has not been suggested in these proceedings, and in my view could not be suggested, that the Government was not entitled to close the ARAP scheme when it judged it appropriate to do so. Neither the claimant nor anyone else had any legal right that the scheme would remain open, just as in general nobody has any right that the Immigration Rules will remain as they are for any particular time (R (Alliance of Turkish Businesspeople Ltd) v Secretary of State for the Home Department [2020] EWCA Civ 553, [2020] 1 WLR 2436). The ‘debt of gratitude’ which the Government recognised when establishing the scheme in the first place did not in that sense give rise to any continuing legal right in domestic law. Whether or when the debt had been paid was a political and moral question, not a legal one. This is an important starting point for consideration of the claimant’s challenge to the way in which the scheme was closed.

Moreover, as is apparent from the summary of the facts set out above, the policy decision which the defendants ultimately adopted was not just to close the ARAP scheme to new applications, but to do so without giving advance notice of the date on which it would be closed. Their objective was not only to close the scheme, but to avoid a spike in last-minute applications which would prejudice the defendants’ ability to deliver the objectives of the scheme to existing applicants. Thus the decision not to give advance notice of the date on which the scheme would be closed to new applications was not some kind of add-on, but was an intrinsic part of the decision.

Although the claimant’s first ground of challenge is that the decision to close the ARAP scheme without notice was unfair, in my view it is helpful to begin with ground 2, which is that the claimant had a legitimate expectation, either that his application would be considered notwithstanding the closure of the ARAP scheme, or that he would be given notice of its impending closure so that he could make an application in time. The question whether there was any such expectation is highly material to any issue of unfairness. If there was no such expectation, the absence of anything said or done by the defendants to give rise to such an expectation is the starting point (and perhaps may even be the finishing point) for any consideration whether closure without notice was unfair. Similarly, if there was objective justification for the closure of the scheme without notice, that too will be material to the issue of unfairness which needs to be viewed holistically.

A challenge to the decision of a public authority on the ground that it was contrary to a legitimate expectation involves two stages. The first requirement is that in all the circumstances the claimant had a relevant legitimate expectation. Secondly, however, a legitimate expectation may be defeated if there is good reason not to honour the expectation or, in other words, if there is an objective justification for this.

What is required in order to give rise to a legitimate expectation was considered in R (MP) v Secretary of State for Health and Social Care [2020] EWCA Civ 1634, [2021] PTSR 1122, paras 41 to 53, where Lord Justice Newey conducted an extensive review of the previous case law, which I need not repeat. His conclusion, in summary, was that it is necessary to show either an express statement which is clear, unambiguous and unqualified or a practice by the public authority which is tantamount to such a promise:

‘50. It will be seen that the courts have used a variety of expressions when describing representations or practices that do, or do not, suffice to give rise to a legitimate expectation. In CCSU [1985] AC 374, 401 Lord Fraser spoke of a “regular practice” that was “so well established … that it would be unfair or inconsistent with good administration … to depart from the practice”. In MFK [1990] 1 WLR 1545 there was reference to a representation needing to be “clear, unambiguous and devoid of relevant qualification”, and similar formulations featured in the Bancoult [2008] UKHL 61, [2009] AC 453, Patel [2013] EWCA Civ 327, [2013] 1 WLR 2801, Badger Trust [2014] EWCA Civ 1405, [2015] Env LR 12, Brooke Energy [2018] EWHC 2012 (Admin) and Heathrow Hub [2020] EWCA Civ 213, [2020] 4 CMLR 17 cases. Judges have also referred to a practice having to be “sufficiently consistent to be regarded as more than an occasional voluntary act” (Sedley LJ in BAPIO [2007] EWCA Civ 1139, [2008] ACD 7), to an “unequivocal” or “plain” assurance (Laws LJ in Bhatt Murphy [2008] EWCA Civ 755), to a practice being “so unambiguous, so widespread, so well-established and so well recognised as to carry within it a commitment” (Lord Wilson in Davies [2011] UKSC 47, [2011] 1 WLR 2625), to a practice being “sufficiently settled and uniform” (Brooke Energy) and to a “consistent practice” (Heathrow Hub). …

53.

The correct position appears to me to be as follows: (i) an express promise, representation or assurance needs to be “clear, unambiguous and devoid of relevant qualification” to give rise to any legitimate expectation, whether substantive or procedural; (ii) A practice must be tantamount to such a promise if it is to found any legitimate expectation. It may be, as Sedley LJ said in BAPIO, that a practice does not have to be entirely unbroken, but it does have to be so consistent as to imply clearly, unambiguously and without relevant qualification that it will be followed in the future.

Ms Charlotte Kilroy KC accepted on behalf of the claimant that in the present case there was no express promise, representation or assurance either that the claimant’s application would be considered notwithstanding the closure of the ARAP scheme, or that he would be given notice of its impending closure so that he could make an application in time. Thus she did not submit (and was right not to do so) that the GLD’s letter of 3^rd June 2025 (para 63 above) contained any such express promise, representation or assurance.

Nor did I understand her ultimately to rely on the written ministerial statement that the House of Commons would be updated on the Government’s plan to close the ARAP scheme (para 39 above), although at one point she submitted that this was inconsistent with any announcement of immediate closure. We did not hear detailed submissions on the question whether such a statement is capable of founding a legitimate expectation (cf. R (D1914) v Secretary of State for the Home Department [2025] EWHC 1853 (Admin), paras 7 and 8 and Annex, paras 52 to 64). However, this point need not be pursued as the ministerial statement lacks the necessary clarity and absence of ambiguity to give rise to any such legitimate expectation. The only expectation it was capable of generating was that the ARAP scheme would or at least might be closed in the near future.

Rather, Ms Kilroy relied on what she said was a consistent practice adopted by the Government when making changes to the Immigration Rules. As initially formulated, the consistent practice was said to be that, in accordance with parliamentary convention, a change to the Immigration Rules would take effect 21 days after the Statement of Changes was laid before Parliament. However, when it became apparent that there were numerous exceptions to this convention, the consistent practice as formulated in oral submissions was said to be either that some advance notice of the change would be given (not necessarily 21 days, but something: Ms Kilroy declined to be more precise) or, if it was not, that this would be mitigated in some way. Such mitigation might either be achieved by including some transitional provisions in the Statement of Changes or because applicants no longer able to apply under the scheme which had been closed would still have an opportunity to apply under some other scheme, albeit with different eligibility requirements. I say at once that this seems a rather complicated assurance to be spelled out of governmental practice, and to lack the clarity which is required to found a legitimate expectation.

The defendants were able to show that out of 17 Statements of Changes to the Immigration Rules which were made between 17^th February 2022 and 30^th June 2025, the 21 day convention was departed from in at least seven cases, with the changes coming into force on the day of laying. These included the closure of the Tier 1 (Investor) route (CP 632, 17^th February 2022); changes to the student route (HC 1496, 17^th July 2023), although in this case the planned closure had been previously announced; and the closure of the Ukraine Family Scheme (HC 556, 19^th February 2024).

In some cases the reason for the departure was expressly stated to be to avoid a last-minute surge in applications. For example, the departure from the 21 day convention in the case of the closure of the Tier 1 (Investor) route was explained in the accompanying Explanatory Memorandum as follows:

‘3.1 This Statement of Changes in Immigration Rules has immediate effect and therefore departs from the usual convention that changes to the Immigration Rules come into force no earlier than 21 days after their being laid in Parliament.

3.2

The Government considers this departure from that convention to be necessary and proportionate for reasons of national security and the operation of the immigration system, and to be consistent with the purpose of the closure of the Tier 1 (Investor) route to new applicants. It is anticipated that closure of the route with 21-days’ notice, or less, would trigger a “closing down sale” effect, involving a very substantial upturn in application levels in advance of closure. It is, moreover, anticipated that this effect would be most likely to feature a high proportion of applications from individuals that represent some degree of potential harm. A similar “closing down sale” effect was triggered by anticipated reforms in the wake of a Migration Advisory Committee report in 2014.’

Ms Kilroy submitted that this was an exceptional example because the reasons for giving no advance notice included reasons of national security. However, this was only one of the stated reasons for the departure from the 21 day convention and in any event this example demonstrates that the Government would close a scheme without notice when it considered it appropriate to do so. That is inconsistent with any legitimate expectation that advance notice would always be given. It was at most a practice that advance notice would be given unless the Government considered that there was a good reason not to do so. Even if it is right to say that in practice advance notice would usually be given, as I would accept, that is not tantamount to an assurance, without relevant qualification, sufficient to found a legitimate expectation on which the claimant and others in his position could rely.

I accept that in some of the cases where the change to the Immigration Rules took effect immediately there were transitional provisions, although these could vary in their detail. However, I do not accept that there was any legitimate expectation either that the 21 day convention would be followed or (if it was not) that some advance notice of the change would be given. First, the convention was only a convention and not a rule that could be relied on. Second, there were occasions when the convention was not followed. Third, there was no consistent practice as to what would happen when it was not followed. This is far too uncertain to amount to a practice of advance notice so consistent as to imply clearly, unambiguously and without relevant qualification that such notice would be given in the event of any future changes.

Accordingly the claim based on a legitimate expectation fails at the first hurdle.

The circumstances in which a legitimate expectation may be defeated were discussed by Lord Justice Laws in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363:

‘68. The search for principle surely starts with the theme that is current through the legitimate expectation cases. It may be expressed thus. Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise of practice to be honoured unless there is a good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement – to describe what may count as good reason to depart from it – as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body’s promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body’s legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.’

Lord Justice Laws went on to say, at para 69, that denial of the expectation was more likely to be justified ‘where the government decision-maker is concerned to raise wide-ranging or macro-political issues of policy’ than in cases where a promise was made to an individual or a specific group. He developed this reasoning in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, a case where a discretionary scheme to compensate victims of miscarriages of justice was withdrawn without notice, and the regulations for paying legal fees for solicitors acting under that scheme were changed. He pointed out that cases of legitimate expectation were concerned with exceptional situations and were not the norm. The general rule is that a public authority has a wide discretion, in the public interest, to alter or abandon a previous policy without giving any advance notice:

‘41. There is first an overall point to be made. It is that both these types of legitimate expectation are concerned with exceptional situations (see Lord Templeman in Preston at 864; compare ABCIFER [2003] QB 1397 per Dyson LJ at paragraph 72). It is because their vindication is a long way distant from the archetype of public decision-making. Thus a public authority will not often be held bound by the law to maintain in being a policy which on reasonable grounds it has chosen to alter or abandon. Nor will the law often require such a body to involve a section of the public in its decision-making process by notice or consultation if there has been no promise or practice to that effect. There is an underlying reason for this. Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel. All this is involved in what Sedley LJ described (BAPIO [2007] EWCA Civ 1139 paragraph 43) as the entitlement of central government to formulate and re-formulate policy. This entitlement – in truth, a duty – is ordinarily repugnant to any requirement to bow to another’s will, albeit in the name of a substantive legitimate expectation. It is repugnant also to an enforced obligation, in the name of a procedural legitimate expectation, to take into account and respond to the views of particular persons whom the decision-maker has not chosen to consult.’

Whether there is objective justification for a decision not to give effect to a legitimate expectation is for the court to decide. It is not merely a question whether the decision-maker’s view was rational.

In the present case the reason for closing the ARAP scheme without advance notice of the date on which it would be closed was to avoid a last-minute surge or spike in applications. This would have been particularly acute if a break glass event had occurred while the scheme was still open for applications, in which case it was reasonably expected that the scheme would have been overwhelmed. Even without the complication of a break glass event, however, there was a genuine and in my view reasonable concern, based on past experience, that giving such advance notice would still lead to a significant (even if lesser) spike in applications.

Ms Kilroy characterised these concerns as merely having to do with administrative convenience, referring to Lord Justice Sedley’s comment in R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481, [2005] 1 WLR 2219, para 8 that fairness must not be sacrificed on the altar of speed and convenience, much less of expediency. But in my view the concerns here went far beyond administrative convenience. The policy ultimately developed was not just to close the ARAP scheme, but to do so without notice in order to achieve the objectives of the scheme. Case workers were already struggling to deal with a significant backlog and, while this situation continued, genuine applicants who had already made their application were potentially in real danger. The priority, indeed the imperative, was to determine those cases so that eligible applicants could be relocated safely. In considering whether there was objective justification for closing the scheme without notice, it is right to have regard (as in fact the defendants did) to the facts that the scheme had already been open for four years, that those in real danger were likely to have applied already, that between 90% and 95% of recent applicants had been found to be ineligible, and that while there would be some potential new applicants who would be able to satisfy the eligibility requirements, this was likely to be a relatively small cohort. To have closed the scheme with notice in a way which would generate a last-minute surge in applications, the great majority of which would likely have been ineligible, could have seriously prejudiced the genuine applicants who had already applied and whose cases remained to be considered.

It follows that I would reject Ms Kilroy’s submission that the principal purpose of giving no advance notice was to avoid public criticism in the event that the announcement of closure occurred at the same time or close to breaking glass.

It is legitimate also to take account of the fact that, even though no date had been given, a public warning had been given by the written ministerial statement on 16^th May 2025 (para 39 above) that the Government was working towards the closure of the ARAP scheme. This could be expected to have warned potential applicants that closure was likely to occur in the near future. Given the ease with which an application could be submitted, by means of an online application form which required only high-level information about an applicant, it is reasonable to think that the great majority of eligible applicants would have taken this straightforward step to submit their application.

In these circumstances I consider that completing in a timely manner the review of existing applications so that those most in danger could be relocated was a legitimate aim, that it arose in what Lord Justice Laws described in Nadarajah as the ‘macro-political’ sphere, and that closure of the scheme in a way which did not generate a significant spike in applications was objectively justified as a proportionate measure. Such a spike would have added to the burdens of those undertaking the eligibility assessments and would have led to substantial delays while genuine applicants remained at risk. Indeed, we were told that there are already numerous cases in this court in which applicants are complaining about delay in the handling of their applications. This situation would only have been seriously exacerbated by a spike of new applications, diverting and diluting the finite resources available – which, in the meanwhile, were also not available to assist with the UK’s other defence needs.

Ms Kilroy placed some reliance on the final review of the decision not to give advance notice of the closure of the ARAP scheme which was carried out within the Ministry of Defence on 26^th June 2025 (para 43 above). She submitted that because of the statement in this review document that it was a reasonable assumption that the earliest date for breaking glass would be 7^th July 2025, and that this might even occur at a later date, it would have been possible to give at least some notice of the closure of the scheme, even if only a few days’ notice. I would reject this submission for two reasons. First, as the review document made clear, the date when break glass would occur could not be guaranteed. By this stage the court timetable did mean that a controlled break glass event (i.e. sanctioned by the court) was unlikely to occur before 7^th July 2025, but an uncontrolled event could have occurred at any time as an increasing number of people became aware of the data breach. Second, the Government’s concern, which was a legitimate concern, about a spike in applications was not limited to the consequences of a break glass event, albeit that this would seriously aggravate the position. It extended to any giving of advance notice of the date when the ARAP scheme would close to new applications.

For these reasons I would hold that even if there was a legitimate expectation that advance notice of the closure would be given, there was objective justification for not giving effect to that expectation. To have done so would have defeated the defendants’ legitimate ‘macro-political’ objective.

I would add that, as the claimant’s case was ultimately advanced, I did not understand it to be suggested that the claimant had any legitimate expectation which was not shared by Afghan citizens generally. To be clear, however, I would have rejected any such submission. Nor could it have been right (or lawful) for the claimant alone to be told the date on which the ARAP scheme would close or that it was about to do so, even if that had been practicable in circumstances where his solicitors were representing a number of actual or potential Afghan applicants. That would only have led to a host of other claims alleging, with some justification, that it was unfair for the claimant alone to have been told this.

Although the claimant’s pleaded case is simply that the decision to close the ARAP scheme without notice was unfair, it is necessary to distinguish between substantive and procedural unfairness. Substantive unfairness is not a ground of judicial review, as the Supreme Court explained in R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25, [2019] AC 96:

‘41. In summary, procedural fairness is well-established and well-understood. Substantive unfairness on the other hand – or, in Lord Dyson MR’s words [2016] Bus LR 1200, para 53, “whether there has been unfairness on the part of the authority having regard to all the circumstances” – is not a distinct legal criterion. Nor is it made so by the addition of terms such as “conspicuous” or “abuse of power”. Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present may be judged.’

Despite this clear conceptual distinction, it is not always straightforward to decide whether a complaint of unfairness is substantive or procedural. In the present case, however, we need not be concerned with that question because Ms Kilroy made clear that her complaint was one of procedural unfairness, while Mr Rory Dunlop KC for the defendants accepted that a complaint that notice of a policy change should have been given engaged principles of procedural fairness. Whether a decision satisfies the requirements of procedural fairness is a decision for the court (Osborn v Parole Board [2013] UKSC 61, [2014] AC 1115, para 65)

Many of the cases on which Ms Kilroy relied were concerned with a claimant’s right to make representations before a decision was made, and therefore with the need for the claimant to know that the decision was pending or to have access to the material on which the decision maker will make the decision. These included the leading case of R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, 560D-G, where Lord Mustill summarised the requirements of fairness as follows:

‘What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all respects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to preparing its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.’

In the present case it is not suggested that the claimant was entitled to notice of the closure of the ARAP scheme so that he could make representations about the closure. Rather, his case is that if he had known that the scheme was about to close, he could have submitted an application. Nevertheless, the passage is valuable because it demonstrates that the requirements of procedural fairness are context-specific, and that the context includes both the legal context in which a decision is made and the relevant factual circumstances. Similarly, in JA v Secretary of State for the Home Department [2014] EWCA Civ 450, [2014] 1 WLR 4291, para 17, Lord Justice Moore-Bick observed that what is required in order to meet the common law requirement of procedural fairness varies in accordance with the nature of the process, the purpose for which it is undertaken and the importance to the parties of the outcome.

Ms Kilroy submitted on behalf of the claimant that the decision to close the ARAP scheme without notice, followed by the refusal on 15^th August 2025 to consider any ARAP application from the claimant, was ‘conspicuously’ (or ‘deeply’ or ‘grossly’) unfair in view of the serious and potentially deadly consequences for the claimant of which the defendants were aware as a result of their recent correspondence with his solicitors. She relied on the following matters in support of this submission:

In my opinion there is an element of hyperbole in these submissions. The starting point, as I have explained, is that nothing said or done by the defendants constituted or was tantamount to any promise or assurance that the ARAP scheme would remain open to new applications for a particular period of time, that the defendants had given a public warning that the scheme would close, and that the decision to close the scheme without notice was objectively justified in the interests of those who had submitted applications and were most at risk. The scheme had been open for over four years and it appears that the claimant had known about it since his son’s death in 2023. Although the defendants had taken ten weeks to respond to the claimant’s initial letter, that delay was, no doubt, at least in part a result of the very large number of applications needing to be considered, most of which were without merit. Delays would only get worse if there was a last-minute spike in applications.

The response when it came on 3^rd June 2025 was accurate: it was open to the claimant to make an application and the letter provided a link to the online form which would have enabled the application to be made promptly. It was not the defendants’ fault that the claimant’s solicitors decided not to do this, but to wait until they had gathered the evidence which would be needed at a later stage of the application process. That may have seemed sensible, but it carried a risk which could have been appreciated, although in fact the defendants’ decision to close the scheme without notice on 1^st July 2025 had not yet been made (see paras 41 and 64 above). I see no basis on which to conclude that the defendants could have known that the claimant would not submit his application promptly or that they lulled the claimant or those advising him into a false sense of security. Nor did they deprive him of any opportunity to submit a claim. On the contrary, they made clear that it was open to him to do so and facilitated his doing so promptly by a providing a link to the form.

Ms Kilroy advanced a related argument under the heading of fairness, which was that the defendants had failed to consider the special circumstances of the Triples, when the Triples Review was still continuing. However, as I have explained (para 22 above), that Review only affected those who had submitted an ARAP application which had been refused. It is irrelevant to the claimant’s position.

In these circumstances I would reject the submission that there was any want of procedural fairness by the defendants, either towards potential applicants in general or towards the claimant in particular. To have given advance notice of the closure date would have frustrated the defendants’ purpose in closing the scheme.

Ms Kilroy submitted that the decision to close the ARAP scheme without notice was a departure from the defendants’ earlier intention to give notice of the closure, and that there was no rational justification for this departure, so that for that reason the decision was unlawful. Developing this submission, she said that the decision was taken in a chaotic and last-minute fashion, proceeding on the misapprehension that closure without notice was required in order to avoid an unmanageable spike in the number of applications. She submitted that the Government had previously concluded that closure with a period of notice would be sufficient to meet that risk, that all the options originally put to the Home Secretary had included a notice period which would allow any remaining eligible individuals to have a final chance to apply, and that there was no justification for departing from the original conclusion. She submitted that the true rationale for this departure was the Home Office’s delay in responding to the Ministry of Defence’s request for agreement to close the ARAP scheme, which curtailed the time available to create distance between the closure of ARAP and break glass, which was deemed desirable for public relations reasons and to avoid parliamentary scrutiny. Finally, she submitted that the defendants failed to consider other options to minimise unfairness, such as closure with less than the 21 days convention. For all these additional reasons, Ms Kilroy submitted that the closure without notice was unfair, and therefore unlawful, and that the defendants have failed to produce evidence justifying this unfairness, as is required for a decision departing from ordinary standards of fairness (Doody, page 560, the passage set out above).

It was not altogether clear whether this was a challenge based on procedural fairness, in which case it would be for the court to decide whether the decision was unfair, or a rationality challenge, in which case the question would be whether the decision to close the scheme without notice was rational. Ms Kilroy submitted that it was both. However, whichever standard of review must be applied, these submissions fail on the facts.

There was no stage at which the defendants concluded that the ARAP scheme could be closed after giving a period of notice of the closure date. There were recommendations by officials which included a period of notice, including a judgment that closure without notice would be politically untenable, but it was always a significant concern that closure with notice would cause a spike in last-minute applications which would compromise the working of the scheme. There was no misapprehension about that. However, while the Defence Secretary was prepared on 18^th March 2025 to give 21 days’ notice of the closure (para 35 above), that course was not agreed by the Home Secretary, who requested that closure without notice should be considered (para 36 above). This led to the policy which was ultimately adopted, agreed by both Ministers. It is not a fair summary of the facts that the decision was reached in a chaotic manner.

It is therefore wrong for the claimant to suggest that there was a departure from an existing policy which needs to be justified, independently of the considerations already discussed. There was only one collectively agreed decision, which was to close without notice. As already explained, that decision involved no procedural unfairness, did not defeat any legitimate expectation of the claimant, and in any event was objectively justified. Even if there had been such a change of policy, however, by June 2025 the position had changed with the increasing risk of a (possibly uncontrolled) break glass event. That would have justified reconsideration of any earlier decision to give notice of the closure of the scheme. As it was, however, there was no such earlier decision.

Accordingly I would refuse permission for this ground of challenge to be advanced.

Ms Kilroy submitted that the defendants’ refusal, in the GLD letter dated 15^th August 2025 (para 68 above), even to consider allowing the claimant to make an application under the ARAP scheme despite its closure was an unlawful fetter on their discretion. She submitted that the Home Secretary had a wide discretion under the Immigration Act 1971 which she was obliged to consider exercising outside the Immigration Rules and that the refusal even to consider the claimant’s particular circumstances was unlawful.

This led to some debate whether the decision to close the ARAP scheme without notice was an exercise of prerogative powers or an exercise of statutory powers under section 3(2) of the Immigration Act 1971 in view of the fact that the scheme had been implemented in the Immigration Rules. Mr Richard Evans for the defendants submitted that the closure was an exercise of prerogative powers, so that the principle of not fettering a discretion did not apply (R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, para 191), while Ms Kilroy submitted that even if the scheme was created by an exercise of the prerogative, once it had taken its place in the Immigration Rules, it should be regarded as part of the ordinary statutory provisions governing immigration into the UK.

It is unnecessary to resolve this somewhat abstruse issue. The straightforward position is that the Statement of Changes giving effect to the decision to close the ARAP scheme without notice left no scope for any exercise of discretion to treat an application made after the closure as if it had been made before the closure. That is because it was made a condition of eligibility that an application had been made before the deadline of 15:00 hours on 1^st July 2025, and the Appendix provided that any application by an applicant who was not eligible would be refused, with no provision for any exercise of discretion to treat an ineligible applicant as if they were eligible (see paras 47 and 48 above). Accordingly the refusal of applications made after the deadline was mandatory.

Ms Kilroy submitted that there is always a discretion to consider an application for leave to enter outside the Rules. However, there is a distinction between what the claimant seeks to achieve, which is for an application (which so far has not been made) to be considered under the ARAP scheme despite the closure of the scheme, and an application for leave outside the Rules. An application outside the Rules can always be made but, as explained in QP1 v Secretary of State for the Home Department [2025] EWHC 1388 (Admin), paras 8 to 10, a grant of leave outside the rules will be rare, and the discretion to grant such leave will be exercised sparingly and in a way which does ‘not undermine the objective of the rules or create a parallel regime for those who do not meet them’.

Ms Kilroy submitted that the claimant should be treated as an exceptional case because his solicitors were already in correspondence with the defendants and because of the danger which he faced. Neither point withstands scrutiny. The result of the correspondence was that the claimant could have made an application before the closure of the scheme on 1st July 2025, but he or his solicitors chose not to do so. The danger which the claimant is said to face does not make his case exceptional. On the contrary, any ARAP applicant must show an elevated risk of targeted attacks and a high risk of death or serious injury as a result of working with or for the UK Government in Afghanistan. If the defendants were required to consider whether to exercise a discretion to treat the claimant as if he had made an application before the closure of the scheme despite the fact that he had not done so, they would be under a similar obligation in the case of every Afghan citizen claiming that they would be eligible as a result of facing a high risk of death or serious injury if the scheme was still open. In practice the scheme would not have been closed to new applications at all.

In this respect the position is broadly comparable with that which existed in R (Islam) v Secretary of State for the Home Department [2025] EWCA Civ 458. Mr Islam, who came to the UK from Bangladesh on a student visa, applied to switch to a five-year skilled worker visa, with a view to working as a care worker. His application was invalid because, three days before it had been made, the Immigration Rules had been changed in order to prevent visa-switching of this kind by students during their course of study. Nevertheless, Mr Islam argued that the Secretary of State had a legally enforceable duty to consider whether to waive the invalidity of the application before rejecting it. One of the grounds for so contending was that the rule change took effect in disregard of the usual convention that changes to the Immigration Rules come into force no earlier than 21 days after being laid before Parliament. The Court of Appeal rejected the argument. Lord Justice Peter Jackson said:

‘31. If the appellant’s argument were correct, the ramifications would be wide and undesirable:

(1)

As Mr Malik accepted, a further conscious decision would be required in respect of every invalid application. Adding an extra decision-making stage would negate the purpose for which the filter, with its accompanying fee waiver, was intended. Far from achieving fairness, that burden would work against fairness and good order in the system as a whole.

(2)

If a discretion existed, it would be impossible to exercise it without an investigation of suitability and eligibility that the filter is plainly designed to avoid. Anything less would be an empty and formalistic exercise.

(3)

Rule SW 17.1 provides that valid applications must be refused if the suitability and eligibility requirements are not met. It would be a perverse and unintended outcome if makers of invalid applications were in a better position to challenge decisions.’

Lady Justice Andrews added at para 42 that a requirement to consider whether or not to reject an application which did not meet the mandatory requirements of the Rules, and to explain why such an application was being rejected, ‘would defeat the very purpose which the change to the Rules was designed to achieve’. The same reasoning applies here.

The defendants were right to say that they could not accept an application to a scheme which was now closed and they were under no obligation to keep the scheme open for the claimant alone. This is not a case of an unlawful fettering of discretion. It is simply a case where the claimant, who made no application before 1^st July 2025, no longer meets the eligibility requirements of the ARAP scheme.

It remains open to the claimant to apply for leave to enter outside the Rules. But that does not mean that the defendants must treat such an application as if it were made under the ARAP scheme as it stood before 1^st July 2025. The process for making such an application is provided for in publicly available guidance.

The claimant’s final ground of challenge is that the defendants’ refusal to consider the claimant’s application was irrational. However, the claimant has made no application, so this ground is premature.

Ms Kilroy explained that the real complaint here is that the defendants have made clear that any application which may be made in future will not be treated as if it were an application under the ARAP scheme. She submitted that the claimant’s position is exceptional and that the defendants are required to consider his particular circumstances. However, for the reasons already explained by reference to the other grounds of challenge, the defendants’ position is one which they were entitled to adopt and is not irrational. The claimant has no right to insist on making an application under a scheme which has lawfully closed to new applications and for which, as a result, he is not eligible.

I would refuse the claimant permission to amend to advance ground 1A and otherwise would dismiss the claim.

I agree.