Safe Passage International & Ors, R (on the application of) v The Secretary of State for the Home Department

There are three claims for judicial review before the Court, each of which challenges the decision of the Defendant, announced on 1 September 2025 and implemented on 4 September 2025 to amend the Immigration Rules (“the Rules”) (a) to suspend new applications for refugee family reunion (“RFR”) under a part of the Rulesentitled Appendix Family Reunion (Sponsors with Protection) (“Appendix FRP”) pending the outcome of a wider review of family reunion rules and (b) to make provision for refugees’ family members to apply for RFR under Appendix FM: Family Members (“Appendix FM”) of the Rules (“the FRP Suspension” or “the FRP Suspension Decision”). By RFR, I mean the grant of leave to enter the UK for the spouse and dependent children of those with either refugee status or humanitarian protection in the UK (or who has settled status in the UK on one of those bases). For convenience, I shall refer only to “refugees”, which is the status of the individual claimants in these proceedings, and not separately to persons with humanitarian protection.

The Claimants in the three claims are:

SPI claims:

For their part, AXY and BSZ echo SPI’s process irrationality and PSED challenges and add further grounds of claim that:

ESH’s first three grounds of challenge to the FRP Suspension Decision replicate those of SPI and his fifth ground replicates the Article 14 ground of AXY/BSZ. ESH adds distinct grounds of challenge that:

In addition, the Court granted an application by the AIRE Centre to intervene by written submissions in support of the Claimants.

In the remainder of this judgment, I will address:

Factual background

RFR and Appendix FRP

The 1951 Convention relating to the Status of Refugees (“the Refugee Convention”) does not provide for refugees to have a right to family reunion. The UN High Commissioner for Refugees (“UNHCR”) has exhorted signatory states to provide for RFR, arguing, for example:

“A prolonged separation can have devastating consequences on the mental health and physical well-being of all family members in countries of asylum, countries of origin and other countries. Being reunited with family members who remained behind is one of the most pressing concerns of refugees and other persons in need of international protection … Worry about family members and feelings of guilt impact their psychological well-being. This has an adverse effect on the ability to integrate in the country of asylum, become active members of the community, contribute to the economic development and rebuild their lives.” (Family reunification for refugees and other beneficiaries of international protection (2024), p. 2).

The UNHCR’s position does not reflect any treaty obligation (see, recently, R (DM) v Secretary of State for the Home Department [2025] EWCA Civ 1273; [2026] 1 WLR 351, §§15-16). Nevertheless, the UK has for many years recognised the importance of RFR. A bespoke policy or practice on RFR, providing for reunion of the pre-flight spouse and dependent children of refugees based on the relationship alone, without additional requirements or payment of fees, has been in place since at least 1990. What is meant by “pre-flight” is that the relationships in question were formed before the refugee left their country of habitual residence in order to seek protection in the UK.

Appendix FRP came into effect on 12 April 2023 following simplification of the Rules. Like its predecessor policies, it was created by the Government in recognition that refugee families can become separated because of the nature of conflict and persecution, and the speed and manner in which people are often forced to flee their country. It has long been recognised that sponsors and applicants on this route may be vulnerable in one way or another; in the case of family members that is not least because they may be in the same or similar situations which led their sponsor to flee in the first place.

The criteria for a grant of family reunion under Appendix FRP are relatively straightforward. The applicant must be the pre-flight spouse/partner or minor child of a person with protection status or settlement on a protection route. Spouses/partners must show the relationship is genuine and subsisting and meet all the requirements of “Appendix Relationship with Partner”, a part of the Rules which governs the type of “partner” relationships which will be accepted for the purposes of various forms of application for leave. Children must show that they formed part of the family unit pre-flight, remain dependent and have not formed an independent life. Children over 18 may exceptionally qualify. Post-flight family members, whose relationships with their sponsors were formed after the sponsor fled their place of habitual residence, must seek family reunion under the general rules for family reunion in Appendix FM (see below).

Where the Appendix FRP eligibility requirements are met the applicant is granted entry clearance and permission to stay in the UK for a period of leave expiring at the same time as the refugee sponsor’s leave or indefinite leave if the sponsor is settled (FRP 9.1). Family members not granted immediate settlement are granted leave with access to public funds and with work and study permitted (FRP 10.1), and can apply for settlement (that is, Indefinite Leave to Remain (“ILR”)) alongside the sponsor, once the sponsor has completed 5 years with leave to remain.

There are no fees for an application under Appendix FRP, nor are there fees for subsequent settlement applications for persons entering the UK under this route. Nor is Appendix FRP subject to the Immigration Health Surcharge (‘IHS’), which is charged to most applicants under the Rules in respect of them having immediate access to NHS treatment. There are no conditions as to the sponsor being able to accommodate or maintain their family members without claiming help from public funds; nor are there any language requirements.

Notwithstanding the relative simplicity of the Appendix FRP criteria, the Claimants’ evidence was that Appendix FRP applications were far from uncomplicated. According to Ms Decla Palmer of the Greater Manchester Immigration Aid Unit (“GMIAU”), on behalf of SPI, “even before the suspension of Appendix FRP, most applicants required legal representation in order to make an application” (witness statement, §31). Ms Alice Giuliato of the Refugee and Migrant Forum of Essex and London (“RAMFEL”) gave evidence of the “obstacles and delays” in using Appendix FRP, access to legal representation being one of the biggest obstacles (witness statement, §25). Another obstacle is the need to apply for legal aid under the Exceptional Case Funding (“ECF”) regime (see §14 of the witness statement of Mr Adam Spray of Wilsons Solicitors LLP (“Wilsons”) and §78 of the first witness statement of Mr Jeremy Bloom of Duncan Lewis Solicitors Ltd (“Duncan Lewis”), solicitors to AXY and BSZ). According to Mr Bloom, a straightforward application under Appendix FRP would take 12-25 hours of fee-earners’ time to prepare (first witness statement, §16).

The demand for RFR has substantially increased in recent years. According to figures which were before the Defendant when she took the decision to proceed with the suspension of Appendix FRP (in a Ministerial Submission dated 29 August 2025 (“the August MinSub”)):

The Home Office’s view was that recent substantial increases in applications for and grants of visas under the RFR route were primarily due to increased numbers of claims for asylum and greatly increased numbers of grants of protection, due to successful efforts to clear an historic backlog of asylum claims, resulting in higher numbers of eligible sponsors. By way of example, the number of initial asylum decisions increased from 91,556 in 2023 to 135,151 in 2025. Particular efforts were made by the Home Office to accelerate the processing of claims from nationals of five countries – Afghanistan, Eritrea, Libya, Syria and Yemen – where asylum grant rates were particularly high.

Once the online application forms appropriate to Appendix FRP were completed, there was then a requirement for an applicant family member to attend a UK visa centre within 240 days to enrol their biometric data and upload any evidence in support of their application. According to Nick Wale, who is the Head of the Domestic Asylum Policy team in the Asylum & Protection Unit at the Home Office, straightforward applications were considered within 12 weeks of biometric enrolment (which was the Defendant’s published service standard) but more complex applications, where evidence of identity or relationship was more limited (approximately 60-70% of the intake) could take much longer. The average length of time for determination of an Appendix FRP application between January and September 2025 was 175 calendar days (that is, around 6 months) (§53). Mr Bloom gave evidence that what he and his colleagues regarded as straightforward applications under Appendix FRP were often decided on a 6–9-month timescale (first witness statement, §17).

According to guidance to decision-makers (“Appendix Family Reunion (Sponsors with Protection)”), standard timescales are shortened for applications under Appendix FRP by unaccompanied children, which are automatically prioritised. There is provision in the guidance for others who are particularly vulnerable to request prioritisation of their applications but it is made clear that the circumstances in which such a request should be granted will be narrow and must arise from the circumstances of an individual case, rather than being applicable to groups of individuals or particular regions or crises. An applicant or sponsor with a serious medical condition or a terminal illness is the only example mentioned in the Guidance.

In late August 2025, the backlog of applications under Appendix FRP which were awaiting a decision was just under 13,000. According to Mr Wale’s first witness statement, prior to the RFR Suspension Decision, grants of RFR visas had been running at around 500 per week (§51). Given the usual rates of grant, this would translate to roughly 580 decisions per week. However, 29 decision-makers had recently been redeployed either to assist in other priority areas, in particular asylum and appeals decision-making and asylum-seekers and refugee accommodation, working directly with local authorities to ease pressures caused by the impact of family reunion arrivals (§12 of the August MinSub and §51 of Mr Wale’s first statement). This had the effect of reducing numbers of grants of RFR visas to approximately 200 per week (so, around 232 decisions per week). The redeployment of staff was envisaged as temporary, and all of the relevant staff had returned to RFR decision-making by 2 February 2026. However, six other decision-makers and a more senior member of staff were deployed, from November 2025, to assist with the UK/European Applicant Transfer Scheme (established under the July 2025 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic on the Prevention of Dangerous Journeys) (§15 of Mr Wale’s second witness statement). The redeployment of RFR decision-makers in August 2025 coincided with an increase to 12 months in the Home Office’s expected decision-making timeframe for an Appendix FRP application. Mr Wale’s evidence indicated that 12 months from biometric enrolment remains the Defendant’s internal benchmark – stipulated in a Service Level Agreement – for processing of an Appendix FRP application.

SPI alleges that, alongside the FRP Suspension Decision, the Defendant took a deliberate decision to slow down decision-making on the Appendix FRP backlog. Mr Wale disputes this: his evidence, in his second statement, is that redeployment of staff was a routine operational decision taken within the Home Office (and so not by the Defendant herself), before the FRP Suspension Decision was taken. He accepts, however, as he must, that the effect of the reallocation of decision-making resources was that, in general terms, decision-making took longer (as reflected in the new, 12-month processing expectation). It was no part of the arguments in this case that the redeployment of RFR decision-makers was itself unlawful or that the 12-month standard processing period is unlawfully long or that I should discount it for any other reason.

A substantial backlog remains. An Equality Impact Assessment dated 3 March 2026 stated that the backlog of Appendix FRP applications was around 12,600 at the start of January 2026 and was forecast to reduce to around 2500 by March 2027. The reason that it had barely decreased since August 2025 was that there was a “spike” of 6500 applications between the announcement of the FRP Suspension on 1 September and its implementation on 4 September 2025.

Appendix FM

Applications for family reunion under Appendix FM are subject to a range of additional criteria and requirements over and above those that apply under Appendix FRP, including:

The fees for making an entry clearance application under Appendix FM are currently £1,938, as well as payment of the IHS which is currently £1,035 per year of leave granted for adults and £776 per year of leave granted for children. Since leave is commonly granted for almost 3 years (see §24 below), this means that the total fee, including the IHS, for an entry clearance application is £5043 for an adult and £4266 for a child application. Fee waivers are available if the Defendant considers that an application is not ‘affordable’ for the applicant. There was evidence from Mr Bloom that only a minority of fee waiver applications are granted in respect of Appendix FM applications, but these statistics necessarily concerned applicants who were not, or very largely were not, refugees.

Where the Appendix FM eligibility criteria are met, spouses and accompanied children are granted leave with a condition of No Recourse to Public Funds (“NRPF”), for up to 33 months on a 5 year route to settlement (which means that the individual must reside lawfully in the UK for a minimum of five years before being eligible to apply for settlement, or Indefinite Leave to Remain (“ILR”)).The fee to apply for ILR is £3,029; there is no provision allowing for it to be waived.

Where a spouse or accompanied child cannot meet all of the Appendix FM eligibility conditions, including the NRPF condition, they may rely upon the ‘exceptional circumstances’ provision under Appendix FM, where leave will be granted if a refusal of entry clearance would breach Article 8 ECHR because a refusal would result in ‘unjustifiably harsh consequences’ for the applicant or sponsor, or a child impacted by the decision. Leave granted on the basis of Article 8/exceptional circumstances will be for 30 months on a 10-year route to settlement. SPI has calculated that the total fees including IHS which are payable to achieve settlement on a 10-year route under Appendix FM are, currently, £20,378 for an adult and £17,659 for a child (although fee waivers are available each time that limited leave is renewed). There is a presumption that leave on Article 8/exceptional circumstances grounds will be subject to an NRPF condition but this can be waived or subsequently lifted, for example, where there is an imminent risk of destitution.

The Defendant was at pains to emphasise that refugees do not constitute a homogeneous group and noted that 22 out of the first 32 successful applicants under Appendix FM who would previously have applied under Appendix FRP had met the core requirements and were granted leave on the 5-year route. However, it was not seriously in dispute that typical Appendix FRP applicants would be unlikely to be able to meet the conditions which are set by Appendix FM or to pay the necessary fees. Very commonly, a refugee will have arrived in this country without significant funds, will have been unable to work whilst their protection claim was determined, and when they do enter work, it will usually be low paid, with some earnings being remitted to support their family. The typical applicant for RFR seeking to use Appendix FM is, therefore, very likely to have to apply for a fee waiver and, if one is granted, rely upon Article 8/exceptional circumstances as the basis for their reunion application. It was also not in dispute at the oral hearing that the position of a typical applicant for RFR is likely to attract the protection of Article 8 and so be regarded as exceptional. That is, in particular, because refugees cannot safely return to their country of origin, so the question of whether there are insurmountable obstacles to family life in another country, which is, for many, a significant hurdle to reliance upon Article 8 in the immigration context, is only applicable to them in the exceptional case where their spouse is entitled to live with their family in a safe third country.

The Defendant’s published customer service standard for Appendix FM applications for overseas applicants is that they should be processed within 12 weeks (after biometric enrolment has been completed). There was evidence on the Claimants’ side that Appendix FM decisions which are based on exceptional circumstances can take much longer than this (see, for example, Mr Bloom’s first witness statement, §95). However, the evidence of Mr Bloom and others as to their experience of using Appendix FM was at least very largely concerned with cases which did not involve refugees who had already established to the Defendant’s satisfaction that they could not live, and so could not enjoy family life in, their country of origin. Prior to the suspension of Appendix FRP, only post-flight applications for RFR, which are relatively few in number, were made under Appendix FM. It may reasonably be expected that applications made under Appendix FM based on Article 8/exceptional circumstances by pre-flight family members would be more straightforward, and take less time, to process than applications where that important issue remained to be proved. Mr Wale gave evidence that fee waiver applications are generally processed within around three weeks – which is consistent with the experience of AXY and BSZ – but some applications can take significantly longer than this. The Defendant is planning to introduce a 12-week standard processing time for fee waiver applications, in response to a recommendation of the Independent Chief Inspector of Borders and Immigration.

Appendix FM applications can be prioritised on payment of an additional fee. There has been no clear statement by the Defendant that that fee can be waived, alongside the basic application fees, in a suitably urgent case (see §96 of Mr Bloom’s first witness statement). That may be because the route has not generally been used by refugees in the past and demand for expedition of what is already a relatively quick process once an application is made will have been low. The position on prioritisation of Appendix FM applications should be made more explicit by the Defendant but I would not accept on the evidence before me that such applications cannot be prioritised for those unable to pay an additional fee, at least in the limited circumstances in which an Appendix FRP application would be prioritised.

There is, then, some evidence which indicates that an Appendix FM family reunion application, even one which requires the grant of a fee waiver, may be processed more quickly than an Appendix FRP application would currently be processed. The Defendant relied upon the respective processing times of applications as a positive advantage of the Appendix FM route. However, the Claimants filed extensive evidence from solicitors and others who have advised refugees on family reunion matters to the effect that an application for RFR under Appendix FM will, generally, entail substantial preparation time, which leads to delay before the application can be made. In summary, the Claimants maintained:

The Defendant did not file any evidence on these matters (or indeed any other matter concerned with the difficulties of using Appendix FM). She merely argued that Appendix FM applications “are not designed to depend on being completed by lawyers and they are not exclusively made by lawyers” (Skeleton Argument, §94). These arguments were directed at propositions which had not been advanced by the Claimants. It seems to me that the evidence of Mr Bloom, supported by his colleagues at Duncan Lewis, on the complexity of, and time-scales for preparing, Appendix FM applications for RFR is likely to be somewhat over-stated, again for the reason that the important Article 8 issue of whether family life can be enjoyed elsewhere will not usually arise in a case of RFR (unless, exceptionally, the sponsor’s partner has a right to live with their family in a third country). Also, as Mr Nettleship explains, the resources which Duncan Lewis have at their disposal, and could devote to an Appendix FM application, are not typical; the average firm could not afford to spend large amounts of time over many months on such applications and would not do so. Subject to that caveat, I accept the Claimants’ evidence, as I have summarised it in §29 above.

It is also necessary to consider post-decision delays, in that applications based on Article 8/exceptional circumstances are often refused by the Defendant only to be granted on appeal to the First-tier Tribunal (“FTT”). Mr Spray of Wilsons, who gave evidence on behalf of SPI, has since July 2022 conducted 8 cases in which entry clearance was sought in reliance upon Article 8/exceptional circumstances. All were refused by the Defendant and all were allowed on appeal. Ms Caterina Franchi of SPI summarises evidence filed by GMIAU, the Migrants’ Law Project and RAMFEL in support of SPI, which is consistent with SPI’s own experience, as being that “only applications under Appendix FRP are generally granted, and other types of family reunion applications are overwhelmingly refused but then succeed at appeal” (§89 of her witness statement). Between January and March 2025, the average time taken for determination of a human rights-based appeal to the FTT was 51 weeks (although this figure does not cover appeals which are conceded, which is said to be a common occurrence).

I am not prepared to accept on the basis of anecdotal evidence, authoritative as it may be, that an Appendix FM Article 8/exceptional circumstances claim will be, or is likely to be, wrongly rejected by the Defendant’s decision-makers. That is not least because – again – the evidence is not specific to human rights-based claims for family reunion by refugees (as RFR has, up to now, been sought almost entirely under Appendix FRP, without the need to make out an Article 8 justification). Whether family life can be pursued elsewhere is a question which may have provoked a negative decision and given rise to an appeal in Appendix FM cases up to now but should rarely do so in a case of RFR. But I do accept that the Appendix FM route poses a more significant risk of post-decision delay than the Appendix FRP route did.

The decision-making process

In a White Paper of 12 May 2025 (Restoring Control over the Immigration System, CP1326) (“the Immigration White Paper”), the Government stated a commitment to reform the framework for family migration, including RFR (§147). It would set out a new family policy before the end of 2025 which would cover routes for British nationals, settled persons and refugees seeking to bring family members to the UK. That policy would include, inter alia, English language requirements and steps to ensure that the family has sufficient money to support any migrants without relying on the taxpayer through reviewing and extending financial requirements to other dependant routes. There would be steps taken to “make the system fairer” whilst this work was undertaken (§§148-149). Whilst the precise nature of any changes to family reunion rules remained to be determined, it was clear from the Immigration White Paper that the Government’s intention was to add further requirements for RFR over and above those currently in Appendix FRP. The Immigration White Paper also contained a commitment to bring forward legislation to “clarify Article 8 rules and set out how they should apply in different immigration routes so that fewer cases are treated as “exceptional”” (§156).

As promised in the Immigration White Paper, further policy details were provided in a 21 November 2025 policy statement entitled Restoring Order and Control: A statement on the government’s asylum and returns policy (CP1418). The policy statement set out an intention to introduce a new “core protection” offer for refugees under which refugees would initially receive only 30 months of leave, rather than the current five years, which could only be renewed if they were still considered in need of protection. Settlement would only be achieved after 20 years of core protection, rather than the current five years. Importantly for present purposes, there would be no automatic right to family reunion for those on core protection. Again, it is plain that the Government intends to impose restrictions on RFR which were not to be found in Appendix FRP prior to its suspension. A little more information was also provided on the intended reform to the application of Article 8 rights. Legislation would set out “how to properly balance the public interest against individual rights” so as to narrow the circumstances in which an individual’s Article 8 rights would outweigh the public interest in removing them and would also “clarify application routes for Article 8” so as to “prevent the creeping extension of Article 8 rights to those living overseas”. Work is continuing within Government to establish precisely what the additional restrictions on RFR might be.

As I have noted, a primary objective of the FRP Suspension Decision was to relieve the burden which, according to the Defendant, RFR arrivals were placing on the resources of local authorities. The starting position of Mr Alan Payne KC for the Defendant, with which I agree, is that it follows as a matter of logic and common sense that increased numbers of RFR visas are liable to create an increased burden for local authorities in whose areas refugees’ families come to settle. The very same factors which make it unlikely that refugee sponsors will meet the conditions set by Appendix FM, including minimum income and accommodation suitable to house their dependents, also make it likely that many sponsors and their families will need to seek local authority support, in particular with housing. In these cases, the presence of children is likely to give rise to priority need which must be met by a local authority with either temporary or more permanent accommodation. Similarly, newly-arrived children, who may be suffering from the effects of trauma and have language difficulties, may well place an additional burden on local authority education and children’s services, as well as local health services.

It is not possible to be scientific about where, when and to what extent these demands on public services will arise. Refugees who seek RFR will be living in different local authority areas and they could choose to settle in a different area again after an application for RFR is made. The timing of arrival of a refugee’s family will depend upon multiple factors including the date of grant of refugee status, the date of application for RFR, the complexity of the application including the time taken for biometric enrolment, the extent of the backlog of similar applications, the date of grant of RFR and the date of travel in the 90 days allowed for entry into the UK after the grant of visas. Some families will not require assistance with housing from the local authority in the area in which they choose to settle or may not require it for very long. But the essential proposition, that greater numbers of RFR visas will likely lead to a greater burden on local authorities, is a sound one.

The Home Office had received some anecdotal evidence that that essential proposition was being borne out in practice, causing difficulties for local authorities. The following reports were emphasised by Mr Payne KC:

Around the same time, the same civil servant was provided by MHCLG with a table summarising the data and evidence available to them on the impact of RFR on local government. The table estimated, based on a modelling methodology which is not made clear, that 5500 reunited families would access homelessness services in 2026/27, rising to 6100 in 2028/29. MHCLG estimated that total homelessness costs in that period in respect of those families would be £175m.

In early 2026, after the FRP Suspension Decision, and as part of efforts to monitor the effect of the decision, the Home Office sent questionnaires to local authorities which sought answers to various questions regarding the impact of RFR. Only a small proportion of local authorities replied (which led the Claimants to question the utility of the exercise). However, some of the replies were informative and although this information was not available to the Defendant when the relevant decisions were taken, the Defendant relies upon it as supportive of the logical/common-sense position and of the earlier reports. For example, the response of Norfolk County Council stated, in response to a question as to what specific impacts RFR family arrivals have on local authorities:

“RFR arrivals results in sudden, and unexpected family homelessness presentations, often where the sponsor is a single adult male with Non Priority need or in a 1 bed/shared accommodation, and when the sponsor’s family arrive under RFR, they present as homeless and usually become immediately Priority Need, for which the lower tier authority has a duty to provide emergency accommodation. From the upper tier authority perspective this also creates significant challenges with in-year school admissions, people arriving with disabilities/health needs, mental health problems, situational distress, cultural adjustment problems, and without support.”

On 11 February 2025, officials provided a Ministerial Submission to the Defendant and other Home Office ministers which outlined potential policy changes to the RFR route as part of ongoing work towards the Immigration White Paper. The policy background, including a substantial increase in grants of RFR, and concerns of local authorities impacted by family groups requiring access to local services, particularly housing, was explained. It was noted that “[w]e do not have any data which measures the impact asylum backlog clearance or refugee family reunion grants on local authorities” but that there was a plan to obtain data on the current pressures on local authorities (§7). Attention was drawn to the fact that applicants under the RFR route tend to be a more vulnerable cohort than applicants under other routes because “these family members may be in the same countries or circumstances which led their sponsor to flee and seek protection in the UK in the first place” (§11). A wide range of reform options was presented (§§8-12), including some which would have expanded the RFR route.

A Ministerial Submission of 19 June 2025 (“the 19 June MinSub”) provided urgent advice on options should the Defendant wish to announce a pause on RFR on 23 June 2025, to coincide with another announcement on UK-France cooperation on migration issues. A background section explained to the Defendant that: (a) applications for and grants of RFR had substantially increased and were forecast to continue to increase (earlier iterations of figures set out in §15 above were used). It was noted that these increases could be attributed to the notable spike in new asylum claimants in recent years as well as clearing backlogs, using case prioritisation strategies which significantly increased asylum grant rates; and that “[our] current RFR route has minimal requirements when compared internationally to other like-minded countries”. There was then mention of the pressure placed by RFR on public services, in particular (but not limited to) local authority housing provision (§10).

Further detail of the policy rationale for pausing RFR was set out in Annex A to the 19 June MinSub. It included more detailed figures showing increases in applications for and grants of RFR and projections showing a likely significant further increase in applications and grants over the next few years (§§9-10). It explained that “46% of granted asylum route refugees become homeless after leaving asylum accommodation”, that “The cost of homelessness is the fastest growing onward service pressure for councils” and that MHCLG had been unsuccessful (in the Spending Review) in a bid for £1.2bn to meet refugee homelessness pressures, including £175m specifically to meet the cost to local authorities of family reunion homelessness pressures. The result of that was “unfunded pressure” which would have to be met by local authorities, some of whom were at risk of bankruptcy, reallocating limited resources (§13). These costs were “exacerbated by the minimal advance notice local authorities receive to plan for family reunion homelessness. A large family presenting as homelessness with reduced notice may necessitate the use more expensive forms of temporary accommodation, for example B&Bs” (§14). Reference was then made to a recently-introduced system whereby the Home Office would notify local authorities of a grant of family reunion to a sponsor located in their area.

The 19 June MinSub set out various possible options for an immediate announcement. One of these was the temporary suspension of Appendix FRP. This was not recommended as the practical steps to suspend this route could not be achieved immediately and “any pause would need to be imposed at the same time as the announcement, to avoid a ‘closing down sale’ which could see a significant surge of applications, adding to the already significant RFR WIP [work in progress]”. A pause in decision-making under Appendix FRP was the only option that could be implemented immediately but this carried significant risks, including that the already large backlog would continue to increase, at the likely rate of 1850 per month, and all pending cases would have to be considered under existing rules once the pause was removed. There would then be a spike in grants of RFR which could cause more acute pressures for local authorities. In the event, no announcement in relation to RFR was made on 23 June 2025. According to Mr Wale (§46), the Defendant had agreed to the principle and direction outlined in the 19 June MinSub but wanted to further consider the interplay with Article 8, out of concern that Article 8 via Appendix FM could circumvent potential changes to the operation of Appendix FRP.

A Ministerial Submission of 25 June 2025 (“the 25 June MinSub”) provided advice to the Defendant on options for making an announcement to suspend RFR before the summer recess (which began on 22 July 2025). The policy rationale for an announcement was summarised as follows (§5):

“Due to increased numbers of applications, we would seek to alleviate pressure on local authorities and services by suspending RFR applications. As a route which directly creates pressure on local authorities, this is one of the only levers that we have to manage numbers. This suspension also enables a comprehensive review and reform of the RFR route, alongside wider reform of family routes, to ensure its sustainability and effectiveness in the long term”.

The recommended option was to make an announcement suspending Appendix FRP simultaneous with changing the Rules, so as to avoid the risk of a sharp spike in applications in any gap between announcement and rule change (§§6, 8). Each of the possible options would be temporary, “to allow for a more comprehensive review of the RFR route to coincide with the [Immigration White Paper] family policy reform” (§7). It was recommended that if any of the suspension options was pursued, the Rules should also be changed so as to permit a partner and child of a refugee to apply for family reunion under Appendix FM. This was said to be necessary to reduce the risk of legal challenge along the same lines as the successful challenge in Asylum Aid (§17).

There was also advice given as to what to do about the backlog of Appendix FRP applications, if any of the suspension options was adopted. The recommended option was to continue to process applications already received, even though this would mean that in the short term RFR grants would continue to place a burden on local authorities. The alternative, to suspend decision-making on existing applications, would (see the 19 June MinSub) simply postpone grants to a future time and would likely lead to multiple requests to override the suspension and process urgent cases, and litigation, if those requests were not agreed to.

It was noted that the Defendant wished to avoid the situation whereby grants of RFR pursuant to Article 8 effectively circumvented the proposed changes to the Appendix FRP route. Officials advised that “[i]n the short-term, our judgment is that Article 8 does present a risk in circumventing, at least in part, any immediate suspension to RFR”. It was recommended that if Appendix FRP were suspended there should also be amendments to incorporate a partner and child of a refugee into Appendix FM “as a precursor step to the new family policy”, in order to avoid the risk of successful legal challenge and to exercise some control over the route under which an Article 8-based claim for RFR would be made.

According to Mr Wale (§48), in response to the 25 June MinSub, the Defendant “decided not to pursue a pause to Appendix FRP before the summer recess and instead indicated that it should be included to the package of Immigration Rules changes scheduled for the Autumn” (see also §8 of the August MinSub).

During the week of 26 August 2025, officials were asked for advice on the expressed wish of the Defendant to proceed with suspending new applications under Appendix FRP and announcing it on 1 September 2025, when a broader Parliamentary statement on immigration matters was scheduled. The August MinSub summarised the policy rationale for the RFR Suspension in §§5-7:

“5.

You previously noted the policy rationale, which is set out more fully in Annex D, and centres on managing the sharp rise in applications and grants, which has placed increasing pressure on local authorities - particularly in housing and homelessness services. The surge is linked to efforts to clear the asylum backlog, resulting in more individuals eligible to sponsor family members. Nearly half of refugees granted asylum become homeless after leaving asylum accommodation, and local councils are struggling to meet statutory duties with limited resources.

6.

A temporary suspension would allow the Home Office to stem the flow of new applications while continuing to process existing ones, giving time to review and reform the route in line with broader family migration policy. This approach is seen as the most deliverable [words redacted] option to reduce immediate pressures without permanently closing the route or disadvantaging refugees compared to other UK residents. While an SLA extension to RFR applications has been implemented, we expect to see [Work in Progress] increase unless we pause applications temporarily.

7.

The rationale for proceeding with the temporary pause is ever more pertinent due to the current situation of high small boat arrivals, pressures on our accommodation estate and the current pressures on local authorities and their ability to house and support anyone who has been granted protection.”

The “SLA extension to RFR applications” (§6) was a change to the Home Office’s “Service Level Agreement” with the decision-making team responsible for Appendix FRP applications, so that their target processing time increased from three months to 12 months (see §19 above). It is also apparent from §6 (“while continuing to process existing ones”) that the decision had already been taken not to suspend decision-making during any suspension of Appendix FRP but to work through the backlog of Appendix FRP applications.

Officials recommended that the Defendant make clear that the pause on new applications under Appendix FRP was “a temporary suspension, to allow for a more comprehensive review of the RFR route to coincide with the [Immigration White Paper] family policy and wider, planned asylum system reform” (§8). They then noted a number of risks, including:

In a section on “Operational implications”, it was noted that the rate of decision-making on Appendix FRP applications had slowed due to redeployment of staff to provide support in Home Office business-critical areas (§17). The August MinSub annexed an Equality Impact Assessment (“the August EIA”), which included some treatment of the Defendant’s s. 55 duty.

I reject the submission pursued by AXY/BSZ (but not the other Claimants) that the Defendant had taken the FRP Suspension Decision in response to the 25 June MinSub, such that everything before her in, and annexed to, the August MinSub, should be ignored, as coming after the event. Certainly, the Defendant had expressed a wish to pause new applications under Appendix FRP in response to the 25 June MinSub but it is clear from the contents of the August MinSub that no final decision had been made, not least because there were issues of timing which affected the potential consequences of the proposed decision. The advice contained in the August MinSub, including on risk, operational and financial implications and other aspects of the tests which the Home Office’s Accounting Officer was required to consider went to the substance of whether there should be a suspension and not merely to the timing of it.

On 1 September 2025, the Defendant announced the FRP Suspension Decision in Parliament in the following terms:

“In our asylum policy statement later this year, we will set out a new system for family migration. Including contribution requirements, longer periods before newly granted refugees can apply, and dedicated control arrangements for unaccompanied children, and for those fleeing persecution who have family in the UK. We aim to have some of those changes in place for the spring.

In the meantime, we need do to address the immediate pressures on local authorities. And the risks from criminal gangs using family reunion as a pull factor to encourage more people onto boats.

Therefore, we are bringing forward new Immigration Rules this week to temporarily suspend new applications under the existing dedicated Refugee Family Reunion route. Until the new framework is introduced, refugees will be covered by the same Family Migration rules and conditions as everyone else.”

It appears from the Defendant’s statement that the temporary FRP Suspension was envisaged as lasting until spring 2026, when at least some of the changes to the conditions for RFR would be in place.

On 2 September 2025, the Home Office published an “Update: Temporary Suspension of Appendix Family Reunion” which explained the rationale for the FRP Suspension Decision and stated that changes to the Rules had been made and would take effect at 15.00 on 4 September 2025. The announcement made clear that the suspension was pending review and reform of the current rules governing RFR, with the aim “to bring greater fairness to the rules” on RFR, as promised in the Immigration White Paper.

As already stated, the changes to the Rules both closed Appendix FRP to new applications and made changes to Appendix FM to ensure that refugees’ partners and children could apply via that route. During the three-day period between the Defendant’s announcement and its implementation, officials’ fear of a “closing down sale” effect was realised: as I have already noted, 6500 new applications for RFR were made, adding to the existing backlog of just under 13,000.

Also on 4 September 2025, the changes to the Rules were presented to Parliament (HC 1298) along with an Explanatory Memorandum and an Economic Note. The Economic Note expressed the costs of the RRP Suspension as the “personal wellbeing impact” on families because of “the increased difficulty of achieving family reunion” (§22). Those impacts were difficult to assess and this had not been attempted, but it was emphasised that the new policy was only a pause of the existing RFR route pending a more comprehensive review and refugees could apply for family reunion through alternative routes (§23). The benefits were expressed as reducing pressure on local authorities and it was acknowledged that there was no data which directly measured the impact of RFR on local authorities (§30). The main risk associated with the FRP Suspension was that it did not reduce RFR and so reduce immediate pressures on public services, since refugees could apply under Appendix FM and claim exemptions under Article 8 ECHR. Although the Home Office expected that “both the conditions and additional friction associated with the [Appendix FM] route may lead to a reduction in applications there is the risk that this does not materialise” (§36). The Economic Note indicated that it was intended to complete the review of family migration routes, including RFR, by the end of 2025 (§2).

Shortly before the oral hearing of the claim, the Defendant disclosed a tranche of further material, pursuant, it was said, to the duty of candour. The material evidenced that a further decision had been taken on 6 May 2026 to continue the FRP Suspension. Appendix FRP would remain closed and the route for RFR would remain through Appendix FM, but with differentiated requirements for RFR being introduced into Appendix FM in summer 2026. The position would change again once the Government had introduced the wider reforms promised in the Immigration White Paper and the November 2025 policy statement (see §34 above), including core protection and reforms to Article 8 protection, which was likely to be in 2027 (§§10-11). This decision effectively superseded the FRP Suspension Decision which is under challenge in these proceedings.

The March 2026 MinSub noted that there had been fewer than expected applications for RFR under other family routes, which would primarily refer to Appendix FM (only 340 since 4 September 2025, by individuals who would formerly have used Appendix FRP, when applications under Appendix FRP had been approaching 500 per week before that). This was thought to reflect applicants deferring applications for RFR in the expectation that Appendix FRP would re-open in spring 2026, the spike of around 6500 applications after the Defendant’s statement to Parliament on 1 September 2025 and limited availability of suitably accredited legal representatives, although more had recently become accredited (§6). It was also noted that continuing the suspension may not significantly reduce the volume of applications for or grants of RFR, as applicants who do not meet the current or future Appendix FM requirements would be likely to qualify for grant pursuant to Article 8 (unless the sponsor’s partner is from a different country or has the right of abode elsewhere, allowing them to live together in that location) (§12). A further and more detailed EIA, and s. 55 impact assessment, were provided to the Defendant with the March 2026 MinSub.

There is, in my judgment, force in the Claimant’s complaint that the Defendant breached her duty of candour in failing to disclose at an earlier stage material contained in the March 2026 MinSub. There was no duty to disclose the March 2026 MinSub, or advice contained in it, prior to the Defendant considering and taking a decision on it (R (TP) v Secretary of State for Work and Pensions [2020] EWCA Civ 37, [2020] PTSR 1785, §141). However, there was factual material contained in the March 2026 MinSub which is relevant to the issues in the case, for example, statistics on the numbers of Appendix FM applications since the suspension of Appendix FRP and information on the progress of clearing the Appendix FRP backlog, including on the large spike in applications following the Defendant’s announcement on 1 September 2025.

Such material could and should have been addressed in Mr Wale’s witness statement, filed some 10 days after the March 2026 MinSub was drafted. It was not protected from disclosure merely because the March 2026 MinSub had not yet been considered by the Defendant. Further, once a decision was taken by the Defendant on 6 May 2026, the Defendant’s legal representatives should have acted very quickly in providing the decision-making material, bearing in mind the fast-approaching oral hearing on 13 May 2026. In the event, it was only disclosed on 11 May. Predictably, and despite having said that the material was only being disclosed pursuant to the duty of candour, the Defendant sought to place substantive reliance on the 6 May 2026 decision, and the decision-making papers. But because of the timing of its disclosure, the parties’ submissions on this material had to be made after the oral hearing had concluded, causing additional costs, and inconvenience to the parties and to the Court.

Detriment likely to be caused by the FRP Suspension Decision

The Claimants have filed extensive evidence to attest to the detrimental impacts of the FRP Suspension Decision. The starting point for this evidence is the contention that requiring applications for RFR to proceed by Appendix FM rather than Appendix FRP creates additional barriers for refugees, introduces additional complexity into the application process and so would take significantly longer, taking into account pre-application and post-decision delays. Significant delays in RFR can have very serious consequences for the sponsor’s family members, who may well be at risk where they are living. These delays, and risks, are liable to encourage family members themselves to undertake unsafe journeys to the UK. Such delays can also cause serious deterioration in the mental health of the refugee, who may already be suffering from the effects of persecution and/or their journey to the UK, which may be exacerbated by prolonged separation from their families. There is research evidence to show that RFR has positive benefits in encouraging integration in society and economic self-reliance whilst, conversely, prolonged separation is liable to harm refugees’ ability to integrate and reduce their capacity to work (due to adverse impacts on mental health).

However, the factual position is considerably less clear-cut than the Claimants made out. The Claimants invite a comparison between timescales for an application under Appendix FRP, had it not been suspended, and timescales for applying for RFR instead under Appendix FM during the period of the suspension. Yet it was not the Defendant’s intention or expectation that everyone who would have applied under Appendix FRP during the suspension period should instead use Appendix FM during that period. To the contrary, the Defendant’s primary intention was that prospective applicants for RFR should wait until the reformed regime for RFR was in place, which was expected to be in spring 2026. The option of applying under Appendix FM during the period of the suspension was established in order to comply with Article 8 (see §47 above) but in the expectation that only a proportion of prospective applicants – those who felt that they could not wait until the new regime was in place – would seek to use it during that period. On that basis, a more appropriate comparison in terms of complexity and delay in the application process might be thought to be between an application under Appendix FRP had it not been suspended, and an application which awaited the new regime, on the timescales for introduction of the new regime as they were predicted to be in August 2025.

On the Claimant’s proposed comparison, it is far from clear that applying under Appendix FM would result in RFR visas being granted significantly later than they would have been if applying under Appendix FRP had it not been suspended:

Comparisons between the Appendix FRP and Appendix FM application and decision-making processes can only be broad-brush – each individual case will be different on its facts and in its demands, for the applicants, any legal representatives, and the Defendant’s decision-makers. On the necessary, inexact basis, the Claimants have not, in my judgment, established that an Appendix FM application would necessarily take longer to make and to be decided than an Appendix FRP application would have done (taking account of pre-application delay in both cases and acknowledging a material risk of post-decision delay in the case of the former). Nor can it be established that, at the time of the FRP Suspension Decision, the determination of an application for RFR which was not made until the new regime came into effect would necessarily have involved materially greater delay than the determination of one made under Appendix FRP if it had not been suspended. On the information before the Defendant in late August 2025, it was unclear when the backlog would be cleared, whether that would be significantly before or after a reformed Appendix FRP or equivalent was made available for use, and what would be the expectation for processing time under the new regime.

The Claimants’ evidence was also directed to the detrimental consequences of the type of leave which was available under Appendix FM, which for refugees would usually involve a 10-year route to settlement, with multiple applications to renew limited leave necessary before ILR could be applied for. This was said to be likely to cause uncertainty and stress, childhood poverty and negative consequences for employment, health and access to higher education. None of this was disputed by the Defendant (and similar evidence had been accepted by Jay J in Asylum Aid, §§67-68). However, the force of these points for the Defendant’s decision-making is lessened somewhat in the present case by the fact that, at the material time, the Defendant took the view that Appendix FRP is overly generous and that a new regime for RFR should be introduced, with further restrictions and requirements, which may be less favourable than the 10-year route. These views were not challenged in the proceedings. That is entirely understandable, as they had not crystallised into any further decisions, but I must proceed on the basis that these were legitimate views, which would serve to diminish for the Defendant the relevance and weight of Appendix FRP leave being more generous than Appendix FM exceptional circumstances leave. The Core Protection policy, revealed in November 2025, is indeed substantially less favourable than the 10-year route (see §34 above).

The likely efficacy of the FRP Suspension Decision

The key factual contention of the Defendant – that the FRP Suspension Decision was necessary to, and would, ease pressure on local authority resources – was also significantly less clear-cut than had been presented by the Defendant, both in the materials which announced and implemented the decision and in the submissions in these proceedings. Whilst I have accepted the proposition that greater numbers of RFR visas will likely lead to a greater burden on local authorities, particularly in terms of provision of accommodation to homeless families and in education-related support to refugees’ children, the decision of the Defendant to continue to process existing Appendix FRP applications during the period of the suspension meant that RFR visas would continue to be issued, and demands would continue to be placed on local authorities, while the backlog was being cleared.

This was drawn to the attention of the Defendant, as was the risk of a spike of applications, adding to the backlog, before the FRP suspension could be implemented. The August MinSub did not explicitly spell out that clearing the backlog would delay any beneficial effects of the suspension for local authority resources (see §§6 and 19, referring to the immediate reduction of pressure on the RFR system, not limited to pressure on local authority resources). But the Defendant had herself decided that RFR visas would continue to be issued during the suspension period and it was not suggested by any of the Claimants that the Defendant had in fact been misled as to the impact this would have on the potential for the FRP Suspension to ease burdens on local authorities. Nor, understandably, did the Claimants criticise the Defendant’s decision to continue to work through the backlog during the suspension period – pausing decision-making as well as preventing new applications would have had a more far-reaching impact on refugees and their families. The upshot of that decision was that, as of the date of the March 2026 MinSub, “the suspension has not yet translated into the desired sustained reduction in pressures on local authorities and public services due to continued RFR arrivals” (§22).

The decision to continue to work through the backlog of Appendix FRP applications does not mean that the FRP Suspension Decision was liable to be ineffective, just that the point in time at which the effect of it was felt would be delayed, perhaps for some time, depending upon the rate of decision-making on existing applications. The suspension of new applications under Appendix FRP, which had been running at around 450 per week (see §26 of Mr Wale’s first statement), would ensure that the backlog did not continue to increase (see §6 of the August MinSub) and would be likely to have a real impact as the backlog was cleared (assuming that there had not been large-scale displacement of applications for RFR to Appendix FM). Nor does the decision to work through the backlog mean that the FRP Suspension Decision was not properly characterised as urgent. It can be urgent to take immediate action which will have a delayed effect, when not acting with urgency would be very likely to increase the scale of the problem which the action is intended to address.

A reduction in the rate of decision-making on existing applications would be likely to have a direct and immediate impact on pressure on local authorities regardless of whether or not Appendix FRP were suspended. The Defendant was informed in the August MinSub, before she took the FRP Suspension Decision, that the rate had slowed due to redeployment of decision-making resource but was not given any indication of how significant was the reduction or how long it might last. However, suspending Appendix FRP would be likely to have a more significant effect in the long term than keeping it open but taking fewer decisions, as it would likely lead to a proportion, potentially a large proportion, of new applications being delayed until the advent of the new regime for RFR. It was anticipated by the Defendant that that regime would have additional conditions directed at reducing the burden of RFR on the public purse.

The potential for displacement of new applications for RFR to Appendix FM added another layer of uncertainty as to the effectiveness of the FRP Suspension. In theory, displacement to Appendix FM could result in the suspension of Appendix FRP giving rise to no reduction at all in the rate and overall numbers of grants of RFR visas. That uncertainty was spelled out to the Defendant but the expectation was that Appendix FM would not operate as a full replacement for Appendix FRP. Overall, then, the suspension of Appendix FRP would be likely to cause a reduction in the pressure on local authorities’ resources caused by RFR, just not an immediate one. (In the event, there has been a significant reduction in applications for RFR, even taking into account the “spike” between 1-4 September 2025).

The outcome irrationality ground

The claim, by SPI and ESH, that the FRP Suspension Decision was outcome irrational was based squarely on the reasoning of Jay J in Asylum Aid, which was said to read across directly to the present case. A wider outcome irrationality challenge was mooted in post-hearing submissions addressing the March 2026 MinSub but a wider challenge of this nature was not pleaded (or accompanied by any application to amend) and was too late, as well as focusing upon facts, and advice, which were not before the Defendant at the material time. (I do, however, consider a wider challenge to the merits of the FRP Suspension Decision under the Article 14 ground).

The challenge in Asylum Aid was to changes to the Rules which removed the bespoke route for family members of stateless persons to apply for leave to enter the UK and required them to apply instead under Appendix FM. The Defendant’s rationale for those changes was (a) to ensure that only persons who were themselves stateless should benefit from the bespoke, “generous” regime which had hitherto applied both to stateless persons and to their dependents, even if the latter were not stateless, and (b) to require stateless sponsors to demonstrate that they were unable to reside in any other country including the country of nationality of their spouse (§§35-36). The numbers affected by this change were small: the numbers of successful applicants for statelessness leave had been well under 100 in each of the years that preceded the change and the numbers of dependents applying to join them was “very low” (§30).

Jay J held that the decision challenged in Asylum Aid was irrational, as one which was not open to a reasonable decision-maker, for a number of reasons. SPI and ESH placed particular reliance upon these sentences of §115 of his judgment:

“ .. para 8 of the Ministerial Submission states "we anticipate that most dependents will still be granted [under Appendix FM, on Article 8 ECHR grounds]". In oral argument Mr Payne demonstrated how and why this would be the case. Certainly in relation to child applicants, I accept Mr Payne's submission. However, I cannot see how this point avails him. Why require a child to go through a lengthy and stressful application process under Appendix FM, assuming that with appropriate assistance she or he works out how to apply, when the highly likely upshot is that the application will eventually succeed? In my judgment, the imposition of this unnecessary and close to pointless requirement is a paradigm example of a perverse policy.”

It was argued that, in the present case, the Defendant also took the view that most dependents of refugees would qualify for leave on Article 8 grounds and therefore it was similarly pointless, and perverse, to require them to go through the lengthy and stressful Appendix FM application process. As SPI put it, “The diversion of RFR claims from Appendix FRP to Appendix FM thus achieves nothing, except delay, disadvantage and strain to both refugees and the state” (Skeleton Argument, §39). SPI and ESH also relied upon §117 where Jay J criticised the Defendant for treating dependents of stateless persons in the same way as all those seeking to apply to come to this country (i.e. by requiring them to use Appendix FM) when “many of the dependants of stateless persons inhabit a different category”.

I do not accept that the reasoning in Asylum Aid should lead to the conclusion that the FRP Suspension Decision was irrational:

The Claimants urged me to adopt an “anxious scrutiny” approach to the determination of this and their other rationality complaints. That approach, which is at the upper end of the sliding scale of intensity of rationality review, was said to be called for by the severity of the impacts of the FRP Suspension Decision on refugees seeking family reunion. I do not think that the outcome irrationality ground, as it was put by the Claimants in their statements of case, and at the oral hearing, turns on the intensity of review; the question is whether the reasoning in Asylum Aid should be distinguished by reason of factual differences between the two cases. In my view, it should. (In any event, I explain below that I do not consider that the anxious scrutiny standard applies in this case).

The process irrationality ground

The Claimants submit that the FRP Suspension Decision is unlawful on the grounds of process irrationality because the Defendant failed (variously) to investigate, engage with, consider and/or assess a number of different factors: (a) the pressure which grants of visas under Appendix FRP was in fact placing on local authority resources, (b) the Defendant’s own contribution to the pressures relied upon, (c) the alternative ways of assisting local authorities short of suspending Appendix FRP, (d) the key adverse impacts of the decision on refugees and their families, (e) whether the FRP suspension will encourage more small boat crossings and other irregular migration, and (f) the high cost of the FRP Suspension to public services and economic productivity.

The allegation that a decision-maker has failed to investigate or equip themselves with necessary information imports a rationality standard. The court “should not intervene merely because it considers that further inquiries would have been sensible or desirable but only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision”. The question is whether “no reasonable authority possessed of the material [before the decision-maker] could suppose that the enquiries they had made were sufficient” (R (Balajigari) v SSHD [2019] 1 WLR 4647, §70).

As for failure to consider a relevant consideration which a decision-maker is not required by statute to take into account, the question is whether a particular consideration was so obviously material that it was irrational not to take it into account. Where the decision-maker has adverted to a consideration falling into that category, the extent to which they have engaged with or given weight to that consideration is again a matter of rationality, and it may be rational to give the consideration no weight (see the explanation in R (Friends of the Earth Ltd & Ors v Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190, §§116-121).

The necessity of applying a rationality standard as an integral part of these principles raised in turn the question whether the present case is an “anxious scrutiny” case, where I should apply a high intensity of review, and ensure that “every factor which might tell in favour of an applicant has been properly taken into account” (R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448, §24).

It is well-established that the intensity of review – that is to say, the degree of weight or respect given to the assessment of the primary decision-maker – depends on the context. This means both the legal context (the nature of the rights asserted by the Claimant), and the factual context (the subject-matter of the decision impugned): R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010, [2021] 1 WLR 472, §154. I accept that the rights and interests relied upon by the Claimants are of substantial weight: as I have explained, delay in the process of seeking family reunion can have serious consequences and the type of leave likely to be available under Appendix FM is significantly more disadvantageous than that which was available under Appendix FRP. However, as the Court of Appeal also made clear in Hoareau (§155), the weight of the interests at stake does not answer the question about the extent to which the Court will recognise that any evaluative judgment involved is a matter for the decision-maker.

This case arises in an area of Government policy which calls for particular respect for the evaluative judgment of the Defendant, for five reasons. First, the immigration context. The comments of Lord Reed in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823, §§47-48 concerning the approach to be adopted to a human rights challenge to the Rules, are equally applicable to the intensity of review appropriate to a domestic public law challenge to a policy decision to change the Rules:

“Immigration control is an intensely political issue, on which differing views are held within the contracting states, and as between those states. The ECHR has therefore to be applied in a manner which is capable of accommodating different approaches, within limits. Under the constitutional arrangements existing within the UK, the courts can review the compatibility of decision-making in relation to immigration with the Convention rights, but the authorities responsible for determining policy in relation to immigration, within the limits of the national margin of appreciation, are the Secretary of State and Parliament.

The Rules therefore reflect the responsible Minister's assessment, at a general level, of the relative weight of the competing factors when striking a fair balance under article 8. The courts can review that general assessment in the event that the decision-making process is challenged as being incompatible with Convention rights or based on an erroneous understanding of the law, but they have to bear in mind the Secretary of State's constitutional responsibility for policy in this area, and the endorsement of the Rules by Parliament.” 

In the present case, there were judgments which were central to the FRP Suspension Decision, which are squarely within the constitutional responsibility of the Defendant and not of the Courts, including that there is a need for reform of RFR to ensure a “fairer and more balanced system”, and that the increase in recent years of the numbers of RFR visas is “unsustainable” and risks placing public services under “unreasonable pressure” (to quote the 2 September 2025 announcement).

Second, the basis for the FRP Suspension Decision was a view taken by the Defendant about the appropriate allocation of scarce public resources at local authority level, and the appropriate means to safeguard those resources. That is another area where the Courts will afford considerable respect to the evaluative judgment of the decision-maker (e.g. R v Chief Constable of Sussex ex parte International Trader's Ferry Ltd [1999] 2 AC 418, 430).

Third, this was not a decision affecting individual rights in an individual case where, in the immigration context, the “anxious scrutiny” standard frequently applies. Rather, it was a policy decision affecting many thousands of individuals. It had the potential to cause additional delay and additional complexity and uncertainty to some individuals in securing family reunion, but whether and to what extent that occurred in any individual case was uncertain. Its likely impacts could only be considered by the Defendant in the round.

Fourth, it was, moreover, a decision which was to be implemented by a change to the Rules which was subject to scrutiny by Parliament. This was also a factor relied on in Agyarko as justifying a low intensity of review (§47).

Fifth, the decision whether to suspend Appendix FRP was a polycentric decision which entailed the weighing-up of incommensurable factors. The decision involved a weighing of the burden placed on public resources by RFR against the potential for delays in obtaining family reunion in individual cases and the harms which could flow from that, in the broader context of Government immigration policy, including efforts to deter small boat crossings. There is some factual analogy between the present case and the recent judgment of the Court of Appeal in R (DM) v Secretary of State for the Home Department [2025] EWCA Civ 1273, [2026] 1 WLR 351. In DM, the Court considered the rationality of the Defendant’s policy, reflected in Appendix FRP before it was suspended, and in guidance, whereby the parents and siblings of child refugees did not have an automatic right of family reunion but would have to establish – by a process which was slower, more complicated and more stressful than was ordinarily required under Appendix FRP – that refusal of family reunion would cause unjustifiably harsh consequences, which was equivalent to breach of Article 8 ECHR. The Court held that the rationale for the policy depended upon matters of assessment rather than primary fact and upon an evaluative judgment, weighing up incommensurable factors (§§175-176). The Defendant’s decision to maintain the policy was “quintessentially of a kind to which the courts should apply the least intensive standard of review, on grounds both of constitutional principle and institutional competence” such that “that the threshold for proving a case of irrationality is correspondingly very high” (§177).

The Claimants criticised the material which was in the possession of the Defendant regarding the burden placed on (in particular) local authority resources by the grant of visas under Appendix FM as based on guesswork and speculation. They relied on various statements in the advice to the Defendant and in internal Home Office, and Home Office-MHCLG, communications to the effect that there was no data which directly measured the impact of RFR on local authorities. Undoubtedly, there was more information which could have been gathered, as shown by the survey of local authorities conducted by the Defendant in early 2026. However, it was not, in my judgment, irrational for the Defendant to proceed in August 2025 on the basis of the information which she had, rather than commissioning more studies at that stage and awaiting their outcome.

I have set out in §35-39 above an account of the evidential case in favour of RFR imposing a significant burden on local authority resources. It starts from logic and common sense and proceeds through a range of reports from local authorities and MHCLG. Efforts were made to gather information on the subject. The limitations of the evidence base were made clear to the Defendant in the MinSubs. Further, and significantly, this was an issue where awaiting further information, which would likely have taken some time to collate and analyse, could be disadvantageous, given increased, and increasing, numbers of grants of RFR visas. And all in the context of a proposed suspension of Appendix FRP which was expected to be temporary, until the RFR rules could be reformed. In the circumstances, a reasonable decision-maker possessed of the material before the Defendant could suppose that the enquiries which had been made were sufficient.

In my judgment, there is nothing in the point that the Defendant failed to confront the contribution of her own policies, in particular vis-à-vis clearing the backlog of asylum claims, to the increases in grant of RFR visas. The Defendant could reasonably regard the pressure which local authorities were experiencing as unacceptable and warranting action regardless of what were the long-term causes of that pressure.

As for the argument that there were alternative ways of addressing the burden placed on local authorities by grants of RFR visas, the Claimants placed reliance on the fact that, with the exception of the City of Doncaster, there was no evidence that local authorities who had complained about this burden had called for reform of Appendix FRP. Indeed, there was evidence from shortly after the FRP Suspension Decision that some London authorities were opposed to the suspension and other evidence of wider opposition by individual councillors. Rather, prior to the decision, local authorities had tended to suggest practical solutions within the current rules for alleviating the burden upon them, such as the notification which was introduced in April 2025 (see §42 above). I do not find it at all surprising that local authorities making representations to central Government would, in general, focus their attention on improvements within the current rules rather than pressing for changes to Government immigration policy. It was a matter for the Defendant whether alternative solutions, including those advocated by local authorities, were sufficient to address the problem which she had identified. It was explained to the Defendant (see, for example, §17 of Annex B to the August MinSub) that the notification system was introduced because lack of notice of RFR arrivals was liable to increase the cost to local authorities of providing temporary accommodation. Whether this was sufficient to address the problem identified was a matter for her rational judgment and I see no basis for impugning that judgment. There are obvious reasons why notification might not a sufficient response; for example, it would not affect the duty of the relevant authority to provide temporary accommodation and would be unlikely to reduce the cost of services other than temporary accommodation, for example, in relation to the education of a refugee’s children.

As to the claim that the Defendant failed to take account of or make enquiries as to the key adverse impacts of her decision on refugees and their families, the impacts relied upon by the Claimants were those which, they say, flowed from the additional complexity and delay which would be involved in applying for RFR under Appendix FM, which is likely to be harmful to them.

In my judgment, this is not a case where the Defendant failed entirely to consider the impacts relied upon by the Claimants, although she considered adverse impacts largely in the context of the need for prospective applicants to await the lifting of the suspension on applications under Appendix FRP. That was, from the Defendant’s perspective, the key adverse impact of the FRP Suspension Decision. It would have been obvious to the Defendant that the proposed suspension could have the effect of delaying family reunion for some families. That indeed was the point of the suspension, and it was mentioned in terms in the advice to the Defendant: see for example, §§11b-c of the August MinSub referring to “prolonged family separation causing emotional distress and hardship, especially for vulnerable children” and it being likely that the suspension “will slow down decision-making for applicants”. It is unfortunate, but no more than that, that the former reference appeared under the heading of “Reputational damage” to the Home Office.

The Defendant did also receive specific advice on the extent to which Article 8/exceptional circumstances applications under Appendix FM would act as a substitute for applications under Appendix FRP. This predicted that the option of using Appendix FM “may slow down the volume of applications from family members of refugees” because of additional complexity (the need for fee waivers was mentioned), but acknowledged that there was “no clear data or analysis on this”, whilst also noting that it may not reduce the number of grants of RFR in the long term (§§17-18 of the 25 June MinSub). There was also analysis in the EIA provided with the August MinSub to the effect that the additional requirements in the Appendix FM application process meant that additional effort would be required to make such applications (p. 5) and advice that refugees will find it much more difficult than British citizens to meet the requirements of Appendix FM (Annex D to the August MinSub, §38). There is no evidence that the Economic Note of 4 September was put before the Defendant prior to her decision, but the point made in §36 that additional conditions and “friction” under Appendix FM may lead to a reduction in numbers of applications for RFR was of a piece with the advice which the Defendant did receive (and which, in the event, under-estimated the extent of use of Appendix FM).

There appears to have been no consideration in the decision-making documents of the disadvantages of the type of leave granted under Appendix FM as compared with that available under Appendix FRP. That is unsurprising given the Defendant’s position that Appendix FRP was too generous, and that a new set of rules would be formulated for applicants for RFR (which could well provide for a type of leave which was equivalent to, or less generous than, Appendix FM). Those who were not willing to wait until the new regime was in force could apply under Appendix FM, but whether or not any individual did so would depend upon a range of factors, including, perhaps, the conditions on the leave which was available under Appendix FM. In my judgment, this was not a factor which a rational decision-maker was required to take into consideration as a matter weighing against the suspension of Appendix FRP.

Nor, in my judgment, can it be said that the Defendant acted irrationally in proceeding on the basis of the information that she had, rather than commissioning further investigations into the difficulties of using the Appendix FM procedure. The advice to her was that Appendix FM involved additional complexity but that it was difficult to predict the extent to which applications for RFR would continue under Appendix FM during the period of the suspension. The wealth of evidence in the present case has confirmed that the relative difficulties and timescales involved in using Appendix FM as compared to Appendix FRP will vary from case to case and from time to time according to the extent of the Appendix FRP backlog and to internal Home Office decision-making timescales (which were also drawn to the attention of the Defendant). The Claimants did not suggest any straightforward means of arriving at greater clarity on this topic, and I note again that this was a decision which was to have limited temporal effect and where delay to await further evidence would – on the advice put to the Defendant – have had detrimental consequences in and of itself.

The Defendant was advised of the risk that the FRP suspension could encourage people to undertake dangerous crossings who might not otherwise have done (see, for example, §11(e)(II) of the August MinSub). There was no further enquiry which could have provided a clear or objective answer on that issue (see, by analogy, §176 of DM).

SPI alleged that the FRP suspension would cause high costs to public services and economic productivity by undermining refugee integration and their recovery from trauma, and by exposing successful Appendix FM applicants to disadvantageous conditions on their leave. I do not agree that it was realistic to expect the Defendant to pause to investigate these matters in more detail in the context of a temporary suspension, which carried some urgency, and where it was uncertain to what extent Appendix FM would be used as an alternative basis for RFR, as opposed to awaiting the end of the suspension. The fact that the notification system recently put in place for Appendix FRP grants would not apply to grants under Appendix FM was a relatively minor disadvantage given the limited value of notification and the uncertainty around how many grants would be made under Appendix FM during the suspension period.

The s. 55 ground

Section 55 provides that the Defendant must make arrangements for ensuring that any of her functions in relation to immigration, asylum or nationality “are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”. The duty encompasses the making of the Rules, which are relevant “arrangements” (DM, §69). As to the contents of the s. 55 duty:

“The best interests of the child are a primary consideration, not the primary consideration, still less the paramount consideration or a trump card. This does, however, mean that no other consideration is inherently more significant than the best interests of the child. The question to be addressed, if the best interests point to one conclusion, is whether the force of other considerations outweigh it.

This in turn means that Secretary of State must identify and consider the best interests of the child or .. of children more generally and must weigh those interests against countervailing considerations.”

“the evaluation needs to consider, where relevant, the interests both of children in general and of those directly affected by the action. It also needs to indicate the criteria by which the “high priority” given to children’s interests has been weighed against other considerations. In so far as that evaluation shows conflict with the best interests of the children affected, it needs either to demonstrate how that conflict will be addressed, or alternatively what other considerations of equal or greater priority justify overriding those interests.”

The first two of those paragraphs are drawn from the judgment of David Richards LJ (as he then was) in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2021] 1 WLR 3049, §70 and the third from the judgment of Lord Carnwath in R (JS) v Secretary of State for Work and Pensions [2015] 1 WLR 1449, §108.

The s. 55 duty does not apply to children who are outside the UK, which will be the situation of at least the great majority of children who are affected by the FRP Suspension Decision. SPI and ESH relied upon statutory guidance issued by the Defendant (Every Child Matters: Change for Children, §2.34), which states that “UK Border Agency staff working overseas must adhere to the spirit of the duty and make enquiries when they have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare needs that require attention”. This guidance does not apply to the making of the Rules and is in any event not capable of extending the s. 55 duty, or the effect of that duty, to children overseas (T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483 (IAC), §23). SPI and ESZ therefore principally relied upon the position of children already in the UK with a refugee parent, whose reunion with other members of their immediate family could be delayed by the FRP Suspension Decision (“split families”). There are, no doubt, children in that position, but there was no evidence to say that this is other than an unusual, if not exceptional, situation, as the great majority of refugees will have travelled to the UK without family members. The best interests of children outside the UK will, nevertheless, fall to be considered as part of the proportionality analysis under Article 8 ECHR.

The s. 55 duty was addressed, briefly, in §35 of the August MinSub:

“Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Home Office to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. Importantly, it does not extend to children outside of the UK. Furthermore, the duty does not mean that it is the only factor that must be considered, and other relevant factors must be taken into account. In this context, the wider interests of managing the pressures arising from this route must be balanced against individual’s rights to benefit from what is a generous provision. In making decisions and devising policy guidance and processes with respect to this policy, the Home Office will continue to comply with the section 55 duty.”

The August EIA also addressed s. 55, albeit whilst promising a “full and separate Section 55 Impact Assessment” which was not in fact prepared until 15 November 2025, and was not then put before the Defendant herself (p. 22). The August EIA identified two groups of children who would be affected by the policy decision to pause Appendix FRP: “[f]irstly, children in the UK who wish to sponsor their immediate family members to join and remain with them in the UK, and secondly, children overseas who may be unaccompanied or unaccompanied by their immediate family members such as mother or sibling(s)”. It was recognised that “it is in the best interests of these two groups of children to remain with their parents/guardians or family”, which I read as meaning “to be with” or "to be united with” their parents/guardians or family; and that the potential impact of the suspension of Appendix FRP on children in the UK “would be difficult for them due to the risk of separation [from] immediate family members who may be overseas”. The effects of that difficulty would be mitigated if children in the UK were already accompanied by close relatives in the UK. There were alternative visa routes, which “present more barriers in terms of costs and visa requirements” but which applied equally to other migrant cohorts and to British citizens seeking family reunification. The August EIA correctly noted that there was a requirement to consider the best interests of a child as a primary consideration.

The best interests of the children in family reunification were, however, outweighed by public interest factors:

“Balanced against this is the strong, constant and increasing public interest in reducing record-high levels of net migration and therefore the need to alleviate pressure on local services such as schools and accommodations. The refugee family reunion visa route is a high contributor to net migration. For example, June 2025, 20,817 people were granted refugee family reunion visas. This is the highest twelve-month period on record and is a 30% increase from year ending June 2024, when 16,001 visas were granted. The need to reduce net migration and implement a fair migration system was highlighted by Prime Minister and Home Secretary with the measures set out in the 12 May “Restoring control over the immigration system: white paper”. Therefore, these strong public interests in the round are considered to be greater than the best interests of these children which we have identified.”

This treatment of the s. 55 duty failed to identify the particular cohort of children to whom the duty applied, namely those already in the UK in split families. Children in the UK who wish to sponsor their family to join them did not benefit from the “generous” Appendix FRP rules but already had to prove their case under Article 8/exceptional circumstances (see DM). The s. 55 duty did not apply at all to children overseas. However, §35 of the August MinSub focused attention more generally on children in the UK who were affected by the suspension of Appendix FRP and some of the comments made in the August EIA did apply equally to the split family cohort (for example, the reference to the difficulty for children of being separated from family members abroad). It is inconceivable that the critical reasoning as to the best interests of the children and those best interests being outweighed by the public interest would have been any different if the split family cohort had been specifically identified.

Further, the reasoning in the August MinSub and the August EIA is brief and there is some force in the Claimants’ criticism that it does not give anything like a full account of the potential harms to children which may result from delays in family reunion. However, brief as it is, the reasoning set out above does, in my judgment, fulfil the essential requirements of s. 55, as set out in §100 above. It identifies the best interests of children affected by the suspension of Appendix FRP as being with their families, identifies the countervailing considerations against which those interests have been weighed and explains that the latter have been preferred to the former. Also, there was coverage elsewhere in the August MinSub of potential harms arising from prolonged family separation (see §100 above). And this in the context of a cohort of children falling within the s. 55 duty who were, at best, a small subset of the overall numbers affected by the FRP suspension. In summary, the Defendant’s consideration of the s. 55 duty was unimpressive in some respects, but it was not unlawful.

The PSED ground

The PSED requires (s. 149(1) EqA):

“A public authority must, in the exercise of its functions, have due regard to the need to -

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

The objective in s. 149(1)(b) is further explained in s. 149(3) as follows:

“Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)

encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.”

It has been held, by the Supreme Court in R (Marouf) v Secretary of State for the Home Department [2023] UKSC 23, [2025] AC 130 that s. 149 does not have extra-territorial effect, so that it cannot be invoked by a person with no connection to the UK (in that case, a Palestinian refugee in the Lebanon). In Asylum Aid, Jay J held that the dependents overseas of a stateless person in the UK had a sufficient connection to the UK for s. 149 purposes through their sponsor, and so distinguished Marouf (§153). Before me, the Defendant accepted that the distinction drawn by Jay J should also apply in the circumstances of the present case, insofar as the Claimants relied upon the situation of refugees’ family members abroad who were affected by the FRP Suspension Decision. The Defendant noted, however, that she would challenge the correctness of Asylum Aid on this point should the opportunity arise in the Court of Appeal.

As a result of §2(1) of Schedule 18 to the EqA, when the Defendant is exercising her “immigration and nationality functions”, including her function under the Immigration Act 1971 of making and changing the Rules, s. 149(1)(b) does not apply to the protected characteristics of age, race (so far as relating to nationality or ethnic or national origins) or religion or belief.

There is, in this case, a further important limitation on the scope of the PSED, which arose in, and as a result of, post-hearing, written submissions prompted by questions which I put to the parties. In R (Adiatu) v Her Majesty's Treasury [2020] EWHC 1554 (Admin), [2020] PTSR 2198, §§229-238, the Divisional Court held that the PSED is applicable to decisions which are to be given effect by delegated legislation, but not those which are to be given effect by primary legislation. The latter are excluded from the PSED by Parliamentary privilege and by §4 of Schedule 18 to the EqA, excluding functions in connection with proceedings in the House of Commons or the House of Lords.

However, the first limb of the PSED (in s. 149(1)(a)) refers to the need to “eliminate discrimination ... that is prohibited by or under this Act”. As I explain in more detail below, the great majority of the Defendant’s consideration given to the PSED in the August EIA, and the great majority at least of the Claimants’ challenge to that consideration, proceeded on the basis that the FRP Suspension Decision could potentially cause discrimination against various groups with protected characteristics. Therefore, the Defendant apparently believed, and the Claimants maintained, it was incumbent upon the Defendant to pay due regard to the impacts of that decision upon those groups, including whether any particular adverse impact was justified, so as not to be indirectly discriminatory. That line of thinking was, in my judgment, erroneous.

The basis for any allegation that the Defendant breached the EqA in her decision-making on immigration policy must be s. 29(6) EqA:

“A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.”

Schedule 3 to the EqA contains exceptions to s. 29. §2(3) of Schedule 3 states:

“Section 29 does not apply to preparing, making, confirming, approving or considering an instrument which is made under an enactment by - ..(a) a Minister of the Crown;”

An enactment includes an Act of Parliament (s. 212 EqA).

The Rules “are not subordinate legislation but detailed statements by a minister of the Crown as how the Crown proposes to exercises its executive power to control immigration” (Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230, §6). They are made by the Defendant under s. 3(2) of the Immigration Act 1971, which states (so far as material):

“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;”

That section also provides for statements of the Rules or of any changes to them, to be subject to disapproval by either House of Parliament within 40 days of laying (that is, a negative resolution procedure). When discussing this procedure in R (Stellato) v Secretary of State for the Home Department [2007] 2 AC 70, §7, Lord Hope referred to the Rules as “an instrument”. That term is plainly broader than “statutory instrument” which is used in various other provisions of the EqA (for example, in s. 207(2)).

The FRP Suspension Decision was a decision by the Defendant to make changes to the Rules. It was, in my judgment, an act of preparing a statement of changes to the Rules, which was an instrument made under an enactment by a Minister of the Crown, and so was excluded from the scope of s. 29(6) by §2(3) of Schedule 3 to the EqA. SPI and ESH submitted that the FRP Suspension Decision was a conventional policy decision which was not caught by §2(3) because that was a provision directed solely at the legislative process. In fact, both of their claim forms specifically referenced the Statement of Changes to the Immigration Rules introduced on 4 September 2025 rather than any earlier policy decision. But, in any event, I reject that submission on its legal merits:

ESH also argues that §2(3) only extends to preparatory and legislative processes and does not preclude a challenge to the instrument itself once it has been made. That submission raises a number of conceptual difficulties. How can it be right that a Minister acts lawfully in preparing the text of an instrument and laying that instrument before Parliament, and Parliament acts lawfully in approving or failing to disapprove it, but the instrument produced at the end of the process is unlawful? And if it is unlawful, who is the appropriate defendant? The Minister has done nothing unlawful, yet it is the Minister who is conventionally the defendant to judicial review proceedings which seek to challenge subordinate legislation (on the basis that they have acted unlawfully in the process of the subordinate legislation being enacted). ESH’s submission also seems very unlikely from the perspective of the practical effect of §2(3) and runs contrary to the SSPNB case.

In the SSPNB case, the Divisional Court (Elias LJ, Sales LJ and McCombe J, as they then were) rejected a judicial review challenge to Orders laid before Parliament by the defendants (the Secretary of State and HM Treasury) which had the effect of changing the basis of uprating of public sector pensions from Retail Price Index to Consumer Price Index. The Court’s decision was by majority on one ground (McCombe J dissenting) but unanimous on the other three, which included a challenge that the Orders had been made in breach of the public sector sex equality duty in s. 76A of the SDA. This required a public authority, in carrying out its functions, to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, and to promote equality of opportunity between men and women (s. 76A(1)). It did not apply, inter alia, to “a function in connection with proceedings in the House of Commons or the House of Lords” (s. 76A(4)(a)). The SDA also had provisions equivalent to s. 29(6) EqA, in s. 21A(1) SDA, and to §2(3) of Schedule 3 in s. 21A(4) and (9), which had the effect that “the making of any kind of subordinate legislation by a Minister, by whatever process the governing legislation dictates, is exempt from the general non-discrimination duty on public authorities set out in section 21A(1) in the same way as is the making of an Act of Parliament” (§92).

The Court held that the s. 76A SDA duty had been complied with during the process of consideration which led to the making of the Orders (§§86-90). It then considered submissions by the Secretary of State that the s. 76A duty did not in any event apply in that case. The Court rejected a submission by the Secretary of State that the exception to the duty not to discriminate in s. 21A meant that he was also excluded from s. 76A. The majority, with whom McCombe J agreed on this issue, stated (§92):

“There is no basis whatever to read this limited exception to the section 21A duty as intending to apply to the different duty under section 76A. There is nothing intrinsically inconsistent with requiring the Secretary of State to have to comply with the "due regard" duty in section 76A(1) when considering the potential impact of subordinate legislation whilst at the same time not being subject to the non-discrimination duty himself when making the legislation. The scope of that duty may be restricted because section 76A(1)(a) requires the Secretary of State to have regard to the elimination of unlawful discrimination, but section 21A prevents the legislative proposals from being unlawful. But that does not mean that the duty is wholly disapplied.” (underlining added)

The Court went on to find that the exemption for functions in connection with proceedings in Parliament applied, because the Orders were made using the affirmative resolution procedure, which was a particularly strong form of Parliamentary involvement (§§101, 113). That was notwithstanding that the Claimant’s challenge had been directed at the actions of the defendants during the process of deciding whether or not to make the Orders. There was no suggestion that either the non-discrimination duty or the duty to have regard to the need to eliminate unlawful discrimination in the public sector sex equality duty (or the analogous duties in the Race Relations Act 1976, the Disability Discrimination Act 1995 and the EqA) applied to pre-legislative decisions to make the Orders or to the Orders themselves once enacted.

The arguably limited scope of s. 149(1)(a) on a challenge to delegated legislation was also highlighted by Upper Tribunal Judge Wright in JA-K v Secretary of State for Work and Pensions (DLA) [2017] UKUT 420 (AAC), §54, apparently with approval, but he did not decide the point. Against that, there have been a number of cases where it appears to have been assumed either that s. 29(6) applied to the making of delegated legislation or that the PSED required the defendant to consider the potential for discrimination arising out of proposed delegated legislation or – in the case of Asylum Aid – from proposed amendments to the Rules. However, I am not aware of any cases where one or more of these points was taken and decided differently from the analysis above.

This analysis has a direct impact on the EqA discrimination ground, which cannot run as a result of s. 29(6) being disapplied by §2(3) of Schedule 3 in respect of the Defendant’s decision to make the changes to the Rules which were intrinsic to the FRP Suspension Decision (see §‎159 below). It has an indirect effect on s. 149(1)(a), because, on that footing, the FRP Suspension Decision cannot give rise to discrimination which is prohibited by or under the EqA. Section 149(1)(a) is not engaged where the adoption of the decision in question is not within the prohibitions laid down by the substantive provisions of the EqA (Marouf, §62). Therefore, the Defendant was not required to have due regard to the need to avoid unlawful discrimination being caused by that decision, but only to the needs stipulated in s. 149(1)(b) and (c).

The principles to be applied under s. 149 are well-known and are commonly drawn from the formulation of McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, §26, which was approved by the Supreme Court in Hotak v London Borough of Southwark [2015] UKSC 30; [2016] AC 811, §73. McCombe LJ stated (so far as material to the present case):

“(3)

The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154, §§26 – 27 per Sedley LJ.

4)

A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin), §§23-24.

(5)

These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows:

(i)

The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;

(ii)

The duty must be fulfilled before and at the time when a particular policy is being considered;

(iii)

The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;

(iv)

The duty is non-delegable; and

(v)

Is a continuing one.

(vi)

It is good practice for a decision maker to keep records demonstrating consideration of the duty.

(6)

"[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin), §84, approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586, §§74-75.)”

“Due” regard is the regard which is appropriate in all the circumstances of a particular case, including “the importance of the areas of life of the members of the disadvantaged ... group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing” (R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, §31).

The Claimants relied upon R (Hajrula) v London Councils [2011] EWHC 448 (Admin), §62 for the proposition that where a decision affects “large numbers of vulnerable people, very many of whom fall within one or more of the protected groups, the due regard necessary is very high”. I accept that the numbers potentially affected by a proposed decision is a factor which would tend to increase the extent of consideration required by s. 149. However, (a) it must also be necessary to consider how the relevant cohort is affected (as per Baker) as well as the size of the cohort, and (b) certain of the most widespread protected characteristics of the affected group – age and ethnic and national origins – are, in this case, specifically excluded from the most relevant duty (s. 149(1)(b)).

On the other hand, there is also force in the Defendant’s submission that the extent of what was required by the PSED was, to some degree, lessened by the rational view taken as to the urgency of the situation and by the fact that the decision was a short term and temporary one, pending a full review of Appendix FRP, in the context of a broader review of family reunion policy, which would itself be accompanied by detailed consideration of equality implications. Contrary to a submission of SPI, a temporary decision, which the decision-maker intends to supersede in a matter of months, is not the same as a decision to commence a trial of technology, which may or may not become permanent depending upon the outcome of the trial, where it is “all the more important” for the decision-maker to acquire information relevant to equalities considerations before or during the trial (R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058, [2020] 1 WLR 5037, §200).

The August EIA, which was before the Defendant when she took the final decision to suspend Appendix FRP, was almost entirely directed to the first limb of the PSED, due regard to the need to eliminate, in particular, discrimination. It identified that the temporary suspension of Appendix FRP pending a review of family reunion rules, could have discriminatory impacts on a range of groups with protected characteristics. Similar but not identical reasoning was used to minimise or justify the differential impact on each group. The policy justification for suspending Appendix FRP was explained (e.g. pp. 1-3, 4). As the pause on the Appendix FRP route was temporary, “applicants do not have to apply on another route whilst it is in place and could wait until the suspension is lifted” (p. 4). Other routes were available, in particular Appendix FM, which was being amended for these purposes, for persons who wished to be considered during the duration of the pause. A fee waiver and consideration of Article 8/exceptional circumstances was available for those who could not meet the requirements of Appendix FM (and other routes). It was recognised that additional effort is required to make an application under other routes, in particular Appendix FM, due to the additional requirements and steps in the application process, such as paying a fee or seeking a fee waiver. “Any remaining impacts are a proportionate means of achieving a legitimate aim” and therefore (it was said) do not result in any unlawful discrimination. It was also noted that there would be a review of the suspension of Appendix FRP every three months. Stakeholder feedback would be monitored and data collected on refugees who applied under Appendix FM and from local authorities (p. 21)

The August EIA contained a very brief treatment of the s. 149(1)(b) duty, which said little more than that individuals affected by the suspension of Appendix FRP could apply under other routes, including Appendix FM, which was a means of advancing equality of opportunity. Some applicants would face challenges in meeting the requirements of these other routes but that was mitigated by the provision in Appendix FM for exceptional circumstances, which was proportionate in achieving the policy aim. As for s. 149(1)(c), the point was made that some people may welcome subjecting refugees to the same family reunion regime as others. Insofar as refugees and their dependents may feel that they were negatively or unfavourably treated, that was mitigated by the ability to apply under other routes during the pause on Appendix FM.

As I have indicated, the Claimants’ pleaded cases sought to criticise the Defendant’s approach to assessing the potential for adverse impact of the FRP Suspension on groups with protected characteristics, an assessment which was undertaken in the August EIA in the context of avoiding discrimination, pursuant to s. 149(1)(a). Likewise, in oral submissions, the Claimants’ focus was on the principle that a decision-maker “must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated” (§26(4) of Bracking) which was also, in context, directed at the August EIA’s treatment of the s. 149(1)(a) duty. They argued that a submission that the August EIA had failed to investigate and engage with the true impact of the FRP Suspension Decision on the groups with protected characteristics, including children. The AIRE Centre raised the particular case of a child who could turn 18 during the period of the suspension and no longer be entitled to benefit from more generous rules that apply to minor children. The August EIA should have considered expressly various risks, including that delay in RFR would expose family members to danger in the countries from where a refugee had fled and the risk of encouraging dangerous journeys and it was not sufficient merely to refer to “any remaining impacts” being justified, without assessing what those remaining impacts, in particular of having to use Appendix FM, actually were.

When, after the hearing, the point arose as to whether s. 149(1)(a) could apply to the Defendant’s assessment of the potential discriminatory impact of the FRP Suspension, the Claimants pivoted to argue that the same points that they had made against the s. 149(1)(a) assessment in any event applied to s. 149(1)(b) and (c) as well. It is true that the August EIA did refer, albeit briefly, to the possibility of applying for family reunion under Appendix FM in the context of the ss. 149(1)(b) and (c) duties. However, whatever was said in the August EIA, it is not straightforward to formulate arguments, which are not explicitly set out in any Statement of Case or Skeleton Argument, as to how the Defendant failed lawfully to assess the potential for the FRP Suspension to damage equality of opportunity between persons sharing a particular protected characteristic (other than age, nationality or ethnic or national origins or religion or belief: see §2(1) of Schedule 18) and those who do not share it, having regard to the explanation of that duty in s. 149(3), or the potential for the FRP Suspension to damage good relations between persons sharing a protected characteristic and those who do not share it. Further, some of the points made by the Claimants, and the AIRE Centre’s point about children who could turn 18 during the period of the suspension, were unquestionably directed at s. 149(1)(a) points (if only because the relevant protected characteristic is excluded from s. 149(1)(b)). I except from that point the protected characteristic of disability, where the complaint that refugees with certain types of disability will find it more challenging to utilise Appendix FM can be read as a complaint about inequality of opportunity between disabled persons and others. Otherwise, however, the necessary procedural rigour in judicial review proceedings required specific complaints about breach of s. 149(1)(b) and (c) to be pleaded. Similarly, it was not permissible at that very late stage for AXY/BSZ to shift position to argue that, even if s. 149(1)(a) were inapplicable to the assessment of the discriminatory effects of the FRP Suspension Decision, the Defendant had chosen to have regard to those effects and had committed a public law error by concluding that there were none or none which required different action.

However, even if the pleaded claims which are summarised in §130 above, and which were in truth directed at the Defendant’s purported discharge of the s. 149(1)(a) duty, can be applied equally to other limbs of the PSED, I reject them for essentially the same reasons as I rejected the equivalent submissions under the heading of process irrationality (see §§89-97 above). It was obvious, and was pointed out to the Defendant elsewhere in the August MinSub, that delaying new applications for RFR until a reformed system was in place, could cause prolonged separation and consequent hardship for some families. The (unquantifiable) risk of encouraging small boat journeys to the UK was also briefly noted in each of the MinSubs (see, for example, §17 of the August MinSub). Ultimately, however, whether or not family reunion would be delayed by the suspension of Appendix FRP in any particular case, or across cases more generally, would have depended upon a complex evaluation of the timescales for making and then awaiting a decision on an Appendix FRP application, as compared with waiting to apply under the new rules, or applying under Appendix FM, to which there would have been no clear answer. It would also have depended upon the conditions and requirements of the new rules, which were not known.

As for the impacts of using Appendix FM to apply for RFR, the August EIA correctly identified that applying under Appendix FM was more burdensome than applying under Appendix FRP. Details were provided about requirements relevant to particular protected groups, and available flexibilities for that group. I do not think that any more detailed assessment of the implications of using Appendix FM was required in circumstances where (a) the Defendant was taking what was from her perspective a short-term, temporary decision, which was urgently required, and the effects of which would be monitored and reviewed, (b) Appendix FM was regarded as a mitigation for those who could not wait until the end of the suspension period, and (c) the comparative disadvantages of using Appendix FM, and the impact of those disadvantages, would vary from case to case. The August EIA argued at length that the suspension of Appendix FRP was justified for good reasons of public policy. It was consistent with that reasoning, and not unlawful, for the August EIA to state, repeatedly, that to the extent that Appendix FM did not operate, during the period of the suspension, as an equally favourable and accessible alternative to Appendix FRP, then that was also justified.

Specific submissions were directed to the greater difficulties faced by disabled persons in using Appendix FM. Those potential difficulties were acknowledged in the August EIA and the adjustments already made for disabled persons seeking to use Appendix FM were pointed out (pp. 7-9). Appendix FM was not, after all, a new regime – it had been in use, including by disabled persons, and by refugees, for some time and the Defendant had been subject to a duty to make reasonable adjustments for disabled persons during that time. In my judgment, having regard to the proper significance of Appendix FM in the reasoning which underpinned the FRP Suspension, the contents of the August EIA were sufficient to identify to the Defendant possible adverse impacts on equality of opportunity for disabled persons and how they might be mitigated.

ESH made a separate submission of breach of the PSED as a result of an alleged failure of the Defendant to monitor the effects of the FRP Suspension, as had been promised in the August EIA. Reliance was placed on the duty to monitor identified in R (DMA) v Secretary of State for the Home Department [2020] EWHC 3416 (Admin), §311. In DM, Underhill LJ summarised the effect of DMA and certain other cases which is also bore upon the issue of monitoring as that “a breach of the PSED may occur, at least in some circumstances, by reason of a failure to monitor the ongoing effect of a policy or practice which was PSED-compliant at the point of its introduction” (§124). It seems to me unlikely that a PSED claim along these lines can be ventilated in a challenge which is limited (as is the challenge in the present case) to an original decision as opposed to challenging conduct subsequent to that decision (see R (TTT) v Governing Body of Michaela Schools Trust [2024] EWHC 843 (Admin), [2024] PTSR 1627, §266). However, the straightforward answer to the monitoring point in the present case is that the material underpinning the 6 May 2026 decision demonstrated that there had been monitoring of the impact of the FRP Suspension, albeit not every three months as the August EIA had said would occur.

For all of those reasons, I reject the PSED ground.

The apparent bias ground

AXY/BSZ submitted that the Defendant had acted irrationally and contrary to the rule against apparent bias by expressing a clear wish to take some action to restrict RFR, with the result that officials sought to build a case in favour of that action, in particular by gathering evidence of pressure on local authority resources. It is clear from the evidence (see §§48-49 above) that the Defendant was in favour of some action to restrict the operation of Appendix FRP, and then in favour of the principle of suspending new applications under Appendix FRP, before the final advice to her, in the August MinSub, and her decision on that advice. However, the decision-making process in the present case was not at all unusual and was not, in my judgment, unlawful for apparent bias or analogous irrationality.

The apparent bias ground ignores the important distinction between (a) predisposition to a particular outcome, which politicians will frequently have and which is, in principle, lawful, and (b) predetermination, whereby a politician approaches a decision with a closed mind, unwilling to consider advice, which is unlawful (see Lewis v Redcar and Cleveland BC [2008] EWCA Civ 746, [2009] 1 WLR 83, §§61-72, 94-96 and 106-109). By the time of the August MinSub, the Defendant had a predisposition to suspending Appendix FRP but there is no cogent evidence (or “clear pointers” – see §63 of Lewis) to suggest that the principle and timing of that step was predetermined. Indeed, the fact that officials were, in late August 2025, commissioned to produce advice which went both to the principle and timing of suspending Appendix FRP is itself a clear pointer against predetermination. Just as there is nothing in principle unlawful about predisposition, nor can there be anything unlawful about officials seeking to gather evidence which could support the decision-maker’s predisposition. Nor, to address another submission of AXY/BSZ under this head, is it necessary in order to avoid apparent bias for advice to a decision-maker to explicitly address the merits of doing nothing (although doing nothing was in fact an option considered in Annex D of the August MinSub).

The Article 14 Ground

The individual claimants submitted that the FRP Suspension Decision breached Article 14 read with Article 8 ECHR because it suspended bespoke provision for RFR and thereby applied the same rules – those of Appendix FM – to refugees’ families as to other applicants for family reunion when they were in a materially different situation, without objective justification for doing so, contrary to the principle in Thlimmenos v Greece (2001) 31 EHRR 15. The individual claimants would not be the applicants under Appendix FM but they are “victims” of an alleged breach of Article 14 rights, being directly affected by the regime for reunion to which their family members are subject (see s. 7(3) and (7) of the Human Rights Act 1998).

The Defendant did not dispute that the complaints of the individual claimants fell within the ambit of the Article 8 right to respect for family life such that they were entitled to invoke Article 14. Nor was it disputed that being a refugee is a relevant status on the basis of which the individual claimants and their family members can distinguish themselves from others seeking family reunion (see Hode & Abdi v UK (2013) 56 EHRR 27, §§47-48). However, it was submitted to me by the Defendant, through Mr Jack Anderson, that the Thlimmenos principle had no application in the present case because the relevant rules, in Appendix FM, had in-built exceptions which refugees’ family members could invoke. Previous applications of the principle, he said, had concerned uniform rules which did not accommodate different cases (R (ALR) v Chancellor of the Exchequer [2025] EWHC1467 (Admin), [2026] 1 WLR 10, §129).

I disagree. The intention and effect of the changes to the Rules made on 4 September 2025 was to subject the family of refugees to the same regime as other family members seeking to join a relative in the UK, whilst their bespoke route was suspended. The fact that that regime contains provision for exceptional circumstances, which refugees’ families would be likely to seek to invoke, is a matter which more naturally goes to justification, rather than to establish that there is no discrimination at all, not least as the difficulties of invoking the exceptions is an important part of the detrimental impact complained of. Also, the Defendant’s submission is difficult to square with DM, where the Court of Appeal found there to be (justified) Thlimmenos discrimination arising from the fact that a child refugee and an adult refugee seeking reunion with a parent were in different situation but were treated in the same way. Both did not qualify for “automatic” reunion under Appendix FRP and both were likely to have to rely upon the Article 8/exceptional circumstances provisions of Appendix FRP (which are analogous to those in Appendix FM).

This ground of challenge therefore turns on the question of justification. In a Thlimmenos case, justification must be directed at the uniform nature of the rule or the absence of specific exemptions rather than the relevant policy in some broader sense (see ALR, §129). However, that distinction is difficult to maintain in the present case because the underlying policy – the suspension of a bespoke route for RFR – is the starting point for, and is critical to, the application to refugees of the same rules as apply to others. The Claimants’ case is not just that an exception should be made for pre-flight dependents of refugees from the Appendix FM regime but that the special regime which previously applied to them under Appendix FRP should not have been suspended and should be reinstated.

I approach this issue from the starting point that the Defendant should be afforded a broad margin of appreciation in justifying the suspension of different treatment for refugees, by Appendix FRP, and the inclusion of refugees’ families within Appendix FM, essentially because the policy context concerned both immigration policy and allocation of public resources and the Defendant’s decision strikes a balance between incommensurable factors (see §§83-88 above). Further, the status at issue in the present case, that of refugee, is not a “suspect” status such as race or sex where the margin of appreciation would usually be narrower.

The Claimants maintained that the margin of appreciation should be narrowed because of the existence of an international consensus that refugees should benefit from a family reunion procedure which is more favourable than that available to other non-citizens and which conforms to minimum standards of speed and flexibility (Tanda-Muzinga v France (Appl. 2260/10, 10 July 2014), §§75 and 82; Mugenzi v France (Appl. 52701/09, 10 July 2014, §§54 and 62). It is far from clear that Appendix FM, with its provision for disapplication of requirements and fee waivers where required by Article 8, which at least most refugees are likely to qualify for, contravenes that principle. In any event, however, these were cases of delay in the grant of RFR which was so serious as to breach Article 8 - 3½ years in Tanda-Muzinga and more than 5 years in Mugenzi – which delays are far in excess of the likely timescales at issue in the present case. These cases do not establish any rule or international consensus against a Contracting State applying to refugees a regime for the grant of family reunion compliantly with Article 8, which Appendix FM is intended to secure, still less against doing so on a temporary basis. They are not a short-cut to demonstrating an international consensus, based on a common moral position (see ALR, §§89-93), which would justify narrowing the margin of appreciation.

There was also material placed before me, in particular by the AIRE Centre, which sought to demonstrate an international consensus in favour of facilitating RFR, at least between minor children and their parents and, by the Defendant, a consensus that imposing restrictions on RFR was a legitimate course. The AIRE Centre’s material was filed late in the day, only 14 days before the oral hearing. This was in circumstances of an expedited timetable for hearing preparation but the difficulties inevitably caused to the parties by the timing of the material were compounded by the fact that it was unreferenced and upon initial examination was found to contain inaccuracies. Even after these were corrected, I was urged by SPI not to treat the material as reliable. In truth, it did not go to the relevant issue under Article 14, which was that of temporarily providing for RFR through a regime which has some flexibilities but which applies also to other migrants. The material relied upon by the Defendant was also of questionable utility, primarily consisting of European Court of Human Rights (“ECtHR”) authority on the treatment of family reunification not for Geneva Convention refugees but for persons who have been granted humanitarian (or “subsidiary”) protection. I did not find any of this material helpful on the question of the appropriate breadth of the margin of appreciation.

I must then apply the well-known four stage proportionality test in Bank Mellat v HM Treasury (No. 2) [2014] AC 700, §74: “(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter”.

Mr Husain KC, on behalf of AXY/BSZ, whose submissions were adopted by Ms Harrison for ESH, accepted that the Defendant could satisfy the first two limbs of that test. In my judgment, and affording a broad margin of appreciation, the Defendant can also satisfy the third and fourth limbs of the Bank Mellat test.

Limb (1): legitimate objective. The objective of suspending the bespoke route for RFR was to relieve pressure on public resources caused by grants of RFR, which can have knock-on impacts on others who also have a claim to those resources. It was an aspect of this objective that the suspension of Appendix FRP would provide time and space for reform of the route to be considered, in line with broader family reunion policy, without the already substantial backlog of Appendix FRP applications continuing to accumulate.

Limb (2): rational connection. The FRP Suspension Decision was rationally connected to its objective. The Defendant had more than sufficient evidence to conclude that the greatly increased number of grants of RFR visas under Appendix FRP was causing pressure on local authority resources. The decision had at least the potential to reduce that pressure albeit that any reduction would not be felt immediately (due to the backlog of Appendix FRP applications) and was affected by uncertainty as to the extent to which applications for RFR would be made in similar numbers under Appendix FM. It was consistent with the plan to review and reform RFR rules to suspend new applications under Appendix FRP rather than to permit the accumulation of new applications, which would have to be decided under the old, “generous” regime even after a new regime, with additional conditions and requirements, had been introduced.

Limb (3): less intrusive measure. It was within the margin of appreciation of the Defendant to consider that alternatives suggested by local authorities within the Appendix FRP regime were insufficient to address her objective. I have considered in §92 above the principal alternative pressed by the Claimants which was the pursuit of the new system of notification to local authorities when RFR visas were issued. It is also material that the Defendant rejected a more intrusive measure which would have had a more immediate effect on numbers of grants of RFR visas, namely that of suspending decision-making under Appendix FRP as well as or instead of closing it to new applications. That would have affected a greater number of people, including those who were now in a position to be granted RFR (whereas prospective applicants might be some time off being able to make an application).

Limb (4): fair balance. The likely contribution of the FRP Suspension to achieving its objectives must be weighed against the possible detriment of the suspension to refugees and their families, in terms of delay to achieving family reunion and/or the additional burdens of having to apply under Appendix FM as compared with Appendix FRP. In considering this issue, the Court is not necessarily limited to material which was before the decision-maker, or even that which was available before the decision. However, this is not a case where a statutory provision is applied some years later to an individual, such that justification should be judged at the point of its application (see Wilson v First County Trust [2003] UKHL 40, [2004] 1 AC 816, §144). The relevant question is whether the FRP Suspension Decision was justified when it was taken; the Claimants’ claims of breach of Convention rights cannot be founded on hindsight.

The likely contribution of the FRP Suspension to meeting its objective must take into account that any such contribution would be delayed as a result of the backlog of Appendix FRP applications, which backlog was liable to increase as a result of the delay which would occur between announcing the decision and implementing it. As I have explained, these factors served to temper the likely impact of the FRP Suspension Decision in terms of reducing pressure on local authority resources but not to eliminate it altogether, and not to deprive this factor of significant potency in the fair balance test. Against that, the likely detriments to refugees and their families were far from clear-cut, as I have explained, given the delay which would inevitably have occurred in achieving RFR even if Appendix FRP had not been suspended. Furthermore, any detriment caused by the suspension was expected to be temporary, as the Defendant’s intention at the time of the decision was to announce a new family reunion policy by the end of 2025 and to re-open a bespoke route for RFR with new requirements in spring 2026. The Defendant’s intention was that prospective applicants for RFR should await the new rules, albeit that an alternative was provided for those who did not wish to wait until then. This is also the answer to the further submission of AXY/BSZ that if it be the case that suspending Appendix FRP did not necessarily increase the length of time that an application for RFR would take to be made and to be processed, that went to show that the suspension brought no benefit. Clearly, there was a benefit so far as the Defendant was concerned, even on that footing, because new applications for RFR would not accumulate under Appendix FRP but would await the reformed regime, subject to the possibility of applying under Appendix FM.

During the temporary period of the suspension, there were defensible reasons for the Defendant to ensure that RFR would continue to be available through Appendix FM rather than seeking to design another bespoke alternative for refugees. Appendix FM was an established route to family reunion, including for the post-flight family of refugees, which was staffed by trained and experienced decision-makers, and used by British citizens as well as other migrants. Whilst there are difficulties and complications involved in applying under Appendix FM, I do not agree that these are so far-reaching that it is a breach of Convention rights to require applicants for RFR to be required to use it during the period of the suspension (see, further, §§155-156 below). Appendix FM is, after all, intended to give effect to the UK’s obligations under Article 8 ECHR to facilitate family reunion and there has been no suggestion up to now in any decided case that it represents a breach of, rather than compliance with, Article 8.

To the contrary, the Supreme Court held in Agyarko that Appendix FM was compatible with Article 8 in the legal tests which it laid down for family reunion (§60). Also, Asylum Aid, on which the Claimants strongly rely for other reasons, is inconsistent with their case that the complexities of the process involved in applying under Appendix FM is a breach of Convention rights. Jay J rejected ground 3 in that case, which was to the effect that the Defendant’s decision to require stateless persons to use Appendix FM to seek family reunification was contrary to her stated intention to act consistently with the UK’s international obligations, including the ECHR. He equated the position of stateless persons with that of refugees (§87) and proceeded on the basis that ground 3 could only succeed if the UK had placed insuperable obstacles in the way of family reunification (§82), which was not the case, as demonstrated by the fact that successful applications had been made (§§89-90).

Further, there is no ECtHR authority which would make me “fully confident” that the Court would find there to be a breach of Article 14 read with Article 8 in the present case (cf R (AB) v Secretary of State for Justice [2021] UKSC 28, [2022] AC 487, §57). This is not the occasion for a comprehensive analysis of the ECtHR jurisprudence on what is permissible by way of restrictions upon RFR. However, it is apparent from the relatively recent judgment in BF v Switzerland (2024) 78 EHRR 14 that the question as to which conditions may legitimately be imposed on RFR is complex, fact-sensitive and far from conclusively determined.

The leading ECtHR cases to date have not concerned typical refugees but individuals with humanitarian protection or, as in BF, refugees who did not flee their home countries because of persecution but whose status arose at a later date and as a result of their own actions. BF also indicates that Article 8, whilst requiring that applications for RFR be processed with “flexibility, speed and efficiency”, sets a relatively high bar in that regard. In that case, a three year and four-month delay in determining an application for RFR, which was largely due to a three-year waiting requirement before an application could be made, did not give rise to a breach of Article 8 (§§142-144). One might reasonably expect such a complaint to be more difficult in the case of a temporary suspension of a bespoke procedure for RFR and its temporary replacement with another route, which might or might not take more time overall, and with prospective applicants having the option of waiting for a new RFR regime to take effect. It would be a yet further advance on the ECtHR case-law to date to find a breach of Convention rights as a result of pre-application delay due to complexity in the process of preparing an application (which was the issue in respect of which Jay J in Asylum Aid posited the “insuperable obstacles” test). That may prove to be too stringent a test for Article 8 purposes, but one might reasonably expect the bar for a successful challenge to be relatively high and for the individual claimants in these cases to struggle to meet the requisite test. BSZ’s family members applied under Appendix FM on 19 March 2026, and substantial progress has been made in the other two cases (due, it should be said, to exceptional efforts by their legal representatives, in particular Duncan Lewis for AXY and BSZ).

In my judgment, it was within the Defendant’s broad margin of appreciation to conclude that the potential for the FRP Suspension to contribute to its objective outweighed the effects of the measure on the rights and interests of refugees and their families.

The Article 8 ground

ESH claims that the decision to suspend Appendix FRP constituted an arbitrary interference with the right to respect for family life protected by Article 8(1) ECHR which cannot be justified under Article 8(2). There is an immediate conceptual difficulty with this claim, which is that the ECtHR would undoubtedly analyse the claim as one of failure by the Defendant to comply with a positive obligation imposed by Article 8(1) to facilitate family reunification (see, for example, §§88-91 of BF), so that Article 8(2) will not arise for consideration in this case. That may not ultimately make any difference in substance because of the proportionality element of the test for breach of positive obligations. What does matter in substance is that (a) the detailed reasons given by ESH as to why Article 8 has been breached were very similar to the reasons which were given in support of the Article 14 claim, (b) the issue of justification under Article 14 has taken in the rationale for the policy of suspending Appendix FRP and not merely the inequality to which that gave rise and (c) I also considered (in §‎144 above) the Article 8 case-law setting certain minimum standards for RFR, which are unlikely to be breached, in principle, by the temporary suspension of Appendix FRP (including in ESH’s individual case, which is also referred to in §‎156 above). Given that, I cannot identify any reason why the proportionality analysis which would be central to a claim of breach of positive obligations imposed by Article 8(1) should reach any different conclusion from that which I reached under Article 14.

I have not lost sight of the principle that the best interests of children, including children abroad, should be a primary consideration in the proportionality analysis under Article 8 (see, for example, Tanda-Muzinga at §67). I shall assume that those interests include, in principle, family reunification, although of course the facts and the particular circumstances and interests of children will vary from case to case. However, in general terms, the extent of detriment to those interests which was caused by the FRP Suspension Decision is not clear-cut and would in any event be outweighed by the interests pursued by the decision, given the broad margin of appreciation which applies in this context.

The EqA discrimination ground

The EqA discrimination ground maintains that the FRP Suspension Decision breached the obligation of the Defendant under s. 29(6) EqA not to discriminate in the exercise of her public functions, because it gave rise to indirect discrimination against persons with the protected characteristic of disability. This ground falls to be dismissed because s. 29(6) did not apply to the FRP Suspension Decision, being a decision by a Minister of the Crown to make rules under an enactment (see §2(3) of Schedule 3 to the EqA, and §§113-121 above).

This claim would face very significant additional obstacles even in the absence of §2(3) of Schedule 3, which, in the circumstances, I can address only briefly. The definition of indirect discrimination in s. 19 EqA provides, so far as material:

“(1)

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2)

For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if -

(a)

A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)

it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)

it puts, or would put, B at that disadvantage, and

(d)

A cannot show it to be a proportionate means of achieving a legitimate aim.”

ESH characterises the “provision, criterion or practice” as being the suspension of Appendix FRP and a requirement for applicants for RFR to use Appendix FM. I would not characterise the requirement in that way. As I have said repeatedly in this judgment, prospective applicants for RFR were required to await the new, reformed regime, with the option of applying under Appendix FM if they did not wish to wait. ESH argues, without any particular evidence in support, that refugees with disabilities (including mental health conditions) are disproportionately affected by the onerous requirements of Appendix FM and so are more likely than other refugees to have to rely upon “exceptional circumstances”. Yet there is specific provision made for disabled refugees in terms of the financial requirements of Appendix FM (see §22.a) above) and the case of other Claimants, which I have accepted (see §26 above), is that the typical refugee seeking RFR will not be able to meet the requirements of Appendix FM. I could not accept, without any specific evidence, that disabled refugees generally, and whatever the nature of their disability, are less likely to be able to meet the requirements of Appendix FM than other refugees. As for proportionality, there are certain mitigations for disabled persons who seek to use Appendix FM, as set out in the August EIA (see §134 above) and, as I have also found, there were defensible reasons for the Defendant to apply the existing Appendix FM rules, during the interim period before the reformed RFR rules were introduced, rather than to seek to re-draft them in order to accommodate the particular needs of refugees or of any particular group of refugees (see §153 above).

Conclusion

For the reasons given above, I dismiss the claims.