Tribunal decisions

The decision

Case No: JR-2026-LON-000743
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
Breams Buildings
London, EC4A 1WR

19 June 2026

Before:

UPPER TRIBUNAL JUDGE HIRST

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Between:

THE KING
on the application of
(1) MXL
(2) AXL
(a child, by his litigation friend MXL)
Applicants
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Nicola Braganza KC and Miranda Butler
(instructed by Asylum Aid) for the Applicants

Matthew Fraser
(instructed by the Government Legal Department) for the Respondent

Hearing date: 1 May 2026

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J U D G M E N T

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Judge Hirst:

Introduction
1. The Applicants are Afghan nationals. In this claim they challenge the Respondent's decision dated 1 December 2025 assessing the Second Applicant as ineligible for resettlement in the UK under the Afghan Citizens Resettlement Scheme (‘ACRS’) (‘the eligibility decision’).
2. This claim for judicial review was issued on 27 February 2026. On 27 March 2026 the Respondent filed an acknowledgment of service and summary grounds of defence. The summary grounds of defence raised a preliminary issue of whether the Upper Tribunal had jurisdiction to hear the claim, and invited the Tribunal to transfer the claim to the Administrative Court.
3. On 30 March 2026 Upper Tribunal Judge Neville directed that the claim be listed for a rolled-up hearing. On 20 April 2026 Upper Tribunal Judge Gray granted permission to the Applicants to rely on additional grounds for review and requested that the parties address the issue of jurisdiction.
4. The parties agreed that the issue of jurisdiction would be addressed at the outset of the rolled-up hearing, with submissions on the substantive issues to follow if the Upper Tribunal determined that it had jurisdiction.
5. At the hearing I determined extempore that the Upper Tribunal had jurisdiction to hear the claim, for reasons set out more fully at paragraphs 7-34 below. I reserved my decision on the substantive claim.
6. I am grateful to counsel for their helpful written and oral submissions.

A. Preliminary issue: jurisdiction
7. The judicial review jurisdiction of the Upper Tribunal is defined by ss15 and 18 Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’) and is limited to claims which meet the conditions in s18(4)-(8) TCEA 2007.
8. If an application for judicial review does not meet the conditions in s18, the Upper Tribunal does not have the function of deciding it and must transfer the application to the High Court (s18(3) TCEA 2007).
9. The only condition relevant to this claim is that in s18(6) TCEA 2007, which provides that the application must fall within a class of case specified in directions given under Part 1 of Schedule 2 to the Constitutional Reform Act 2005. The relevant direction is the Lord Chief Justice’s Consolidated Direction made on 21 August 2013 and amended on 17 October 2014 (‘the Direction’). Paragraph 1(i) of the Direction specifies the following class of case:
“1. ….any application for permission to apply for judicial review and any application for judicial review (including any application for ancillary relief and costs in such applications) that calls into question:
(i) a decision made under the Immigration Acts (as defined in Schedule 1 to the Interpretation Act 1978) or any instrument having effect (whether wholly or partly) under an enactment within the Immigration Acts, or otherwise relating to leave to enter or remain in the United Kingdom outside the immigration rules; …”
10. Schedule 1 to the Interpretation Act 1978 provides that “the Immigration Acts” has the meaning given by s61 UK Borders Act 2007, which sets out a list of the relevant primary legislation.
11. The scope of paragraph 1(i) of the Direction was considered by Dove J as he then was in R (ABW) v SSHD [2025] 1 WLR 1685, in relation to a claim challenging a public order disqualification decision under s63 Nationality and Borders Act 2022. Dove J held [13] that paragraph 1(i) should not be simply interpreted literally. Instead, a more nuanced approach was required consistent with the purpose of the Direction, which is to ensure that matters which require the highly specialised expertise of judges in the Upper Tribunal Immigration and Asylum Chamber are transferred to that jurisdiction. Dove J held [20] that the phrase “otherwise relating to leave to enter or remain” in paragraph 1(i) of the Direction was sufficiently open to include decisions which did not directly lead to a decision granting leave to enter or remain but which were decisions “in relation to preparatory stages in the process of obtaining status”. On the facts of ABW’s case, and in particular bearing in mind that the power to make public order disqualification decisions under s63 of the 2022 Act was not only exercisable in respect of individuals subject to immigration control but could also be applied to British citizens, Dove J declined to transfer ABW’s claim to the Upper Tribunal.
12. The jurisdictional question in this claim turns on whether the claim falls within paragraph 1(i) of the Direction, i.e. whether the eligibility decision under challenge was “a decision made under the Immigration Acts” or subordinate instruments, or alternatively was a decision “otherwise relating to leave to enter or remain in the United Kingdom outside the Immigration Rules”.
13. The Applicants rely on R (Munir) v SSHD [2012] 1 WLR 2192 [2012] UKSC 32 as authority that the eligibility decision was made in the exercise of the Secretary of State’s powers under ss1, 3 and 4 of the Immigration Act 1971. The Applicants contend that the ACRS application process is a mechanism which is solely concerned with the entry into the UK of non-British citizens. The sole purpose of an eligibility decision is for the Respondent to determine whether an applicant meets substantive eligibility criteria for the grant of entry clearance; once eligibility is determined, the only further checks are security and identity checks. The Applicants contend that an ACRS eligibility decision is part of the process of entry clearance and therefore, following Munir, a decision made in the exercise of the Respondent's statutory powers under ss1, 3 and 4 of the 1971 Act.
14. In the alternative, the Applicants contend that an ACRS eligibility decision is one “otherwise relating to leave to enter or remain in the United Kingdom outside the immigration rules” which falls within paragraph 1(i) of the Direction. In either case, they submit that the judicial review claim is one falling within the Direction and is therefore within the exclusive jurisdiction of the Upper Tribunal.
15. The Respondent maintains that the ACRS eligibility decision is not a decision “made under the Immigration Acts” because it is not itself a decision to grant leave to enter or remain which falls within the Secretary of State’s broad statutory powers under the 1971 Act. Instead, the Respondent contends that the eligibility decision is one made under the Crown’s prerogative powers.
16. In support of that submission the Respondent relies on the Court of Appeal’s decision in R(AFA) v SSHD [2025] EWCA Civ 825. In that case, the court was considering challenges to decisions taken under the separate ‘Afghan Response Route’ (‘ARR’) policy on the ground that the Secretary of State had unlawfully fettered her statutory discretion. Singh LJ held (§54) that the formation and adoption of the ARR policy was properly regarded as an exercise of the prerogative. The Respondent maintains that whilst the court in AFA was not concerned with questions of jurisdiction and was considering the different procedure under the ARR policy, the reasoning applies by analogy to eligibility decisions taken under the ACRS policy and therefore to this claim. Because the eligibility decision is one made under prerogative powers, it is therefore not a decision “made under the Immigration Acts” for the purposes of paragraph 1(i) of the Direction.
17. The Respondent further submits that an ACRS eligibility decision is not a decision “otherwise relating to leave to enter or remain” within the meaning of paragraph 1(i) of the Direction because it is an entirely separate decision to the grant of entry clearance.
18. As Mr Fraser noted, with one exception all previous judicial review claims challenging decisions taken under the ACRS have to date proceeded in the Administrative Court. Those claims include R (SH) v SSFCDO [2022] EWHC 1937 (Admin); R (KA) v SSHD [2023] 1 WLR 896; R (BAL) v SSHD [2022] EWHC 2757 (Admin); R (KBL) v SSHD [2023] EWHC 87 (Admin); R (GA) v SSHD [2023] EWHC 871 (Admin); R (MTA) v SSHD [2024] EWHC 553 (Admin) and R (HR) v SSHD [2024] EWHC 786. The exception is R (Gurung) v SSHD [2025] UKUT 90 (IAC), which was brought and determined in the Upper Tribunal. However, as the issue of jurisdiction does not appear to have been raised in any of those cases they do not assist me in determining the question of jurisdiction in this claim.
Discussion
19. I have given careful consideration to the parties’ skeleton arguments and submissions on the issue of jurisdiction, and considered the authorities on which both sides rely.
20. The starting point is the Supreme Court decision in Munir. Munir was concerned with the withdrawal of a concessionary immigration policy (‘DP5/96’) which provided that deportation action should not normally be taken against parents of children who had accumulated seven years’ continuous residence. Lord Dyson, giving the judgment of the court, held (§44) that the power of the Secretary of State to make immigration rules and to grant and vary leave to enter and remain in the UK both under the rules and outside them derived from the Immigration Act 1971 and was not an exercise of the prerogative. Further, at §46 he held that the making of discretionary concessionary policies outside the immigration rules was also governed by the Act:
“…the Secretary of State is authorised by the 1971 Act to make policies setting out the principles by which she may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the United Kingdom.”
21. The court noted (§25) that s33(5) of the 1971 Act provided “This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative”, but held, by reference to the Parliamentary debates during the passage of the Bill, that Parliament’s intention had been to limit the prerogative to “controlling the entry of enemy aliens” and otherwise to ensure that all powers of immigration control were to be exercised pursuant to the statute. In fact, the Hansard passages from the debates during the passage of the Bill, cited by Lord Dyson at §25, indicate that s33(5) of the 1971 Act was intended by the Government to be limited to residuary prerogative powers exercisable against enemy aliens “at times of war”, including internment, expulsion and control.
22. In Alvi v SSHD [2012] 1 WLR 2208, [2012] UKSC 33 at §32, Lord Hope went further, holding: “The powers of control that are vested in the Secretary of State in the case of all those who require leave to enter or to remain are now entirely the creature of statute.”
23. In R (Turani & Anor) v SSHD [2021] 1 WLR 5793, [2021] EWCA Civ 348, the Court of Appeal considered a claim brought under s29(9) of the Equality Act 2010 (‘EA 2010’) challenging an ex gratia scheme for resettlement of refugees fleeing the conflict in Syria. Under the scheme, refugees were identified and referred for resettlement by the UN High Commissioner for Refugees (‘UNHCR’) or the UN Relief and Works Agency, following which the Secretary of State would decide whether to grant resettlement and entry clearance. Simler LJ as she then was, giving the judgment of the court, held (§62) that the making of the scheme was not the exercise of a function under the Immigration Acts and hence falling within s29(9) EA 2010, but was rather “the exercise of prerogative powers to make a policy about how statutory immigration powers will be exercised”. However, the application of the scheme to individual cases, encompassing both the referral stage and the subsequent grant of entry clearance, was a function under the Immigration Acts (§69). That analysis was approved by the Supreme Court on appeal: R (Marouf) v SSHD [2023] AC 130 [2023] UKSC 23 at §62.
24. Neither the Court of Appeal nor the Supreme Court in Turani/Marouf appear to have been referred to Munir or Alvi. In AFA, however, Singh LJ rejected the submission that the effect of Munir and Alvi was that there was no longer any room for the prerogative in immigration law, and hence that the ARR policy was created pursuant to the Secretary of State’s residual statutory discretion to act outside the Immigration Rules. Instead, he held (§54) that by analogy with Turani/Marouf:
“Although the exercise of the powers to control leave to enter and remain in the UK can properly be said to be “entirely the creature of statute”, to use Lord Hope’s phrase in Alvi, the formation and adoption of the background policy of relocation is properly regarded as an exercise of the prerogative.”
25. The ARR policy, as with the ACRS policy in this case and the Syrian scheme considered in Marouf, involved two decision-making stages: a decision as to eligibility, followed by a decision to grant entry clearance for the purpose of resettlement. Singh LJ noted (§56) that a “critical feature” of the ARR context indicating that the prerogative was involved was that the eligibility stage of decision-making was carried out by the Ministry of Defence, which could not be exercising powers under the 1971 Act.
26. There is an apparent tension between the clear statements in Munir and Alvi that following the enactment of the 1971 Act, the Secretary of State’s powers of immigration control, including the power to make concessionary policies governing leave to enter and remain outside the Immigration Rules, are “entirely the creature of statute”, and the decisions in Turani/Marouf and AFA that the formulation or adoption of policies governing resettlement and entry clearance is an exercise of the prerogative. It is by no means clear that the residual prerogative power preserved by s33(5) of the 1971 Act to “control the entry of enemy aliens”, as recognised by Lord Dyson in Munir, extends to developing policies for resettling foreign nationals from nations with whom the UK is not at war.
27. The ACRS Separated Families Pathway is a concessionary policy which is entirely concerned with the entry of foreign nationals to the UK for the purpose of resettlement outside the Immigration Rules: it is a policy “setting out the principles by which the Secretary of State may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the United Kingdom” (Munir at §46). There is in my view no basis on which to conclude that the Separated Families Pathway policy falls outside the scope of the Secretary of State’s broad statutory powers under the 1971 Act to make concessionary policies governing leave to enter or remain outside the Immigration Rules.
28. A particular feature reinforcing that conclusion is that the decision-making process under the ACRS Pathway 1 (which includes the Separated Families Pathway at issue in this claim) is different in an important respect to that of the ARR and ARAP schemes and the Syrian scheme considered in Turani/Marouf. Whilst the ACRS involves a two-stage decision-making process similar to that under ARR and ARAP, under Pathway 1 of the ACRS both stages are carried out by the Respondent. The involvement of another decision-making body such as the Ministry of Defence, identified by Singh LJ in AFA as a “critical feature” indicating that the ARR policy was an exercise of prerogative power, is therefore absent in this case.
29. For the purposes of jurisdiction, the involvement of the Respondent at both stages of the Pathway 1 ACRS decision-making process is a further feature which demonstrates that the eligibility decision is one “made under the Immigration Acts”, i.e. in the exercise of the Secretary of State’s broad statutory powers under the 1971 Act to control leave to enter and remain, and not under the prerogative.
30. Ultimately, however, for the purposes of determining jurisdiction in this claim the tension between Munir and subsequent cases as to the extent of the prerogative power in policy formulation is not one I need to resolve. Unlike the claims in AFA and Turani/Marouf, which challenged the legality of the ARR and Syrian policies, this claim is not concerned with a challenge to the legality of the ACRS policy itself but only with the legality of the eligibility decision, i.e. the application of the ACRS policy to the Second Applicant’s individual case. In that respect, the authorities set out above are in agreement: even if the formulation or adoption of the policy is an exercise of the prerogative, the application of the policy in an individual case is an exercise of the powers to control leave to enter and remain which is firmly within the powers conferred by the 1971 Act.
31. Although Mr Fraser sought to portray an eligibility decision under the ACRS as entirely separate from the final grant of entry clearance, I do not accept that submission. As Simler LJ identified in Turani at §66 (albeit in the different context of s29(9) EA 2010), the power to grant entry clearance covers not just the formal decision itself but extends “to matters that are integral to the grant (or refusal) decision” including enquiries made which lead to the grant or conditions imposed on it. Under the ACRS scheme and under the Separated Families Pathway, a positive eligibility decision is a determination that the individual has met the substantive requirements for entry clearance. An eligibility decision is not followed by any further substantive consideration; it is followed by an offer of resettlement subject only to identity and security checks. The eligibility decision under ACRS, whilst not an entry clearance decision in itself, is integral to the decision to grant entry clearance and cannot be divorced from it.
32. I therefore conclude that this claim for judicial review challenges a decision “made under the Immigration Acts” and falls within paragraph 1(i) of the Direction. The Upper Tribunal therefore has exclusive jurisdiction to determine the claim.
33. For the purposes of jurisdiction, if I had not accepted that the eligibility decision was one made under the Immigration Acts, I would nonetheless have concluded that it was a decision “otherwise relating to leave to enter or remain in the United Kingdom outside the Immigration Rules” which therefore fell within paragraph 1(i) of the Direction. There is nothing in the Direction which necessarily excludes decisions on the basis that the source of the power to take them is the prerogative. Decisions taken under the ACRS scheme, including eligibility decisions, are in my view clearly decisions “relating to leave to enter or remain…outside the Immigration Rules”. Indeed, that is the entire purpose of the ACRS scheme: to identify, and grant entry clearance to, individuals who are eligible under the scheme for the purpose of resettlement in the UK. If paragraph 1(i) of the Direction is capable of encompassing ancillary or preparatory decisions about access to opportunities to provide biometric data (see ABW at §20), it would in my view be entirely artificial to characterise an ACRS eligibility decision, which is integral to the grant of entry clearance for the purpose of settlement, as not “relating to leave to enter or remain”.
34. On the preliminary issue, I therefore conclude that the Upper Tribunal has jurisdiction to determine the claim.

B. The substantive challenge
Summary factual background
35. The Applicants are Afghan nationals. The First Applicant is the maternal aunt and de facto adoptive mother of the Second Applicant, a 12-year-old child currently living in Pakistan.
36. Prior to August 2021, the Applicants and the rest of the family (with the exception of the First Applicant’s husband SR, who was a British citizen living in the UK) lived together in Afghanistan. In August 2021, as the Taliban advanced on Kabul, SR travelled to Afghanistan and put forward his family, including the Second Applicant, for evacuation under Operation Pitting.
37. On 26 August 2021 the Applicants and other family members travelled to Kabul airport for evacuation. At the airport, the family were caught in a bomb explosion which killed SR and the First Applicant’s son-in-law and injured the First Applicant’s grandson. The Second Applicant, who had then just turned 8, was separated from the rest of the family following the explosion; the family were unable to find him and eventually assumed that he had died in the explosion.
38. The First Applicant’s daughter BR was able to board a flight, as she had passed through security prior to the bomb blast, and was evacuated to the UK under Operation Pitting on 26 August 2021. She was thereby separated from her children (the First Applicant’s grandchildren, then aged 6 and 23 months) and her late husband. BR was the only member of the family to be evacuated prior to 28 August 2021.
39. On 23 September 2021 officials within the Home Office advised the Secretary of State to allow the rest of the family to enter the UK on an exceptional basis, recognising that BR had been separated from her young children and that had the family not been separated during the explosion it was likely they would all have been evacuated under Operation Pitting. On 29 October 2021 the First Applicant and the rest of the family (with the exception of the Second Applicant, who was still missing and presumed dead) were granted entry clearance and evacuated to the UK. They were all subsequently granted indefinite leave to remain under ACRS Pathway 1.
40. Several months after arriving in the UK, the family identified the Second Applicant in a photograph uploaded to a missing persons page on Facebook and re-established contact with him. The Second Applicant was, and still is, living in Pakistan in the care of an Afghan family who took him in after the bomb explosion at Kabul airport. The family caring for the Second Applicant do not have formal immigration status in Pakistan.
41. On 17 October 2024 the family completed a referral form for the Second Applicant under ACRS Pathway 1 Stage 2. The application was accompanied by detailed representations about the family’s circumstances and why resettlement under ACRS was justified, as well as a significant quantity of evidence including internal Home Office and Foreign and Commonwealth Office records detailing the background to the case and a report from an independent social worker on the Second Applicant’s situation. The representations noted that the Applicants and the rest of the family were due for evacuation under Operation Pitting on 26 August 2021 but were unable to board a flight due to the bomb explosion.
42. On 1 December 2025 the Respondent refused the Second Applicant’s application (the decision under challenge in this claim). The reasons (in full) were as follows:
“Stage 2 of the ACRS Pathway 1 is intended to facilitate the resettlement of immediate family members of those evacuated under ACRS Pathway between the dates of 13 August 2021 and 28 August 2021. Based on the information and evidence provided, I am not satisfied that the referred individual is eligible for consideration, as you have not demonstrated you were evacuated to the UK under ACRS Pathway 1 during August 2021.”
43. The minute of the decision recorded:
a. In response to the question “‘Has the sponsor been granted ILR under ACRS and did they arrive in the UK between 13th and 28th August 2021?’: “NO – I’ve checked the Settlement Application on Atlas and the UK sponsor arrived in the UK on 30 Aug 2021 under LOTR - ILR No Conc (ACRS), which is outside the parameters of OP-PITTING”.
b. Under “What is your decision and justification?”: “REJECTION This referral will be rejected as the UK based family member entered the UK on 30 Aug 2021 which is outside of the Operation PITTING parameters. For the purpose of this policy, Operation PITTING is defined as the series of evacuation flights that took place between 13 August 2021 and 28 August 2021”.
Both references in the decision minute to 30 August 2021 were incorrect, as the First Applicant had arrived in the UK on 29 October 2021.
44. The Applicants sought reconsideration of the decision on 18 December 2025, which was refused on 8 January 2026. This claim for judicial review was issued on 27 February 2026.
45. On 2 April 2026 the Applicants applied to add a supplementary ground (Ground 5), challenging the decision as a breach of Article 14 read with Article 8 ECHR. On 20 April 2026 Upper Tribunal Judge Grey granted permission to the Applicants to rely on the additional ground and directed that the parties make submissions on the issue of jurisdiction.
The ACRS
46. The ACRS is a policy created outside the Immigration Rules which was opened on 6 January 2022. Under the policy, which was not application-based, eligible people were referred for resettlement under one of three pathways:
a. Pathway 1 (the route relevant to this claim) prioritised vulnerable and at-risk individuals who were evacuated from Kabul via Operation Pitting in August 2021. Eligible people who had been notified by the UK government that they had been ‘called forward’ for evacuation but who were not able to board flights were also potentially eligible under Pathway 1;
b. Under Pathway 2, the UK received referrals from the UNHCR of vulnerable individuals with protection needs who had fled Afghanistan;
c. Pathway 3 was designed to offer a route to resettlement for at-risk individuals who had supported the UK and international community in Afghanistan, as well as those who were particularly vulnerable such as women and girls at risk and members of minority groups.
47. For each pathway, there was a two-stage process. First, a referral would be assessed to determine whether the individual was eligible for resettlement under the relevant pathway, following which an offer of resettlement would be made to those who were deemed eligible, contingent on suitability and security checks (‘the eligibility stage’). Second, once an offer of resettlement had been made, an application for entry clearance would be made and considered (‘the entry clearance stage’).
48. For Pathway 1 (the pathway under consideration in this claim) the eligibility stage decision-maker was the Respondent. For Pathway 2, it was the UNHCR, and for Pathway 3 it was the Foreign, Commonwealth and Development Office (‘FCDO’). For all three pathways, the entry clearance stage decision-maker was the Respondent.
49. In autumn 2023 the Respondent opened a separate route under Pathway 1 to allow families separated during the evacuation from Kabul in August 2021 to be reunited (‘the Separated Families Pathway’). Guidance as to the new pathway1 (‘the SFP guidance’) was not issued until 30 July 2024, following which the pathway was open to referrals between 30 July 2024 and 30 October 2024.
The SFP guidance
50. The stated intention of the Separated Families Pathway, as set out in the SFP guidance, was “to reunite families unintentionally separated during the events of Operation Pitting. The pathway is intended to restore immediate family units that continue to subsist in the same make up as prior to evacuation”.
51. The SFP guidance defined an ‘immediate family member’ as a spouse or partner, or dependent child under the age of 18, of someone evacuated in Operation Pitting under ACRS Pathway 1. An ‘additional family member’ is a family member of an evacuated individual in addition to those deemed an immediate family member. Additional family members may be considered for resettlement only in exceptional circumstances.
52. Under the heading ‘General principles’, the guidance made it clear that the Separated Families Pathway was a 2-stage decision making process. At stage 1, the Home Office would assess referrals to determine whether an individual was eligible and make an offer of resettlement if eligible, contingent on the individual passing suitability and security checks. At stage 2, eligible individuals would be sent instructions on what to do next, and would be supported by the International Organisation for Migration whilst they submitted their application for entry clearance.
53. Under the heading ‘Child welfare’, the SFP guidance provided that the duty in s55 Borders, Citizenship and Immigration Act 2009 meant that consideration of the child’s best interests was a primary consideration for the decision-maker. The guidance stated, so far as relevant:
“You must carefully consider all the information and evidence provided to ascertain how a child will be affected by a decision and this must be addressed when assessing whether an applicant meets the eligibility criteria…
Where it is relevant to a decision, when considering referrals for children out-of-country you must make it clear in the refusal letter that the child’s welfare has been considered in the spirit of section 55 without stating that it is a duty to do so.”
54. Under ‘Eligibility’, the SFP guidance provided:
“Only those who hold permission under ACRS Pathway 1 who were evacuated during Operation PITTING, are eligible to submit a referral on behalf of their IFMs or in exceptional circumstances AFM.
For the purpose of this policy, Operation PITTING is defined as the series of evacuation flights that took place between 13 August 2021 and 28 August 2021.”
55. The SFP guidance contains a further section headed “Consideration of eligibility” which has been removed as “restricted for internal Home Office use” in the publicly available version of the guidance.
Grounds of challenge
56. The Applicants challenge the eligibility decision on five grounds:
a. Ground 1: The Respondent has departed without justification from the ACRS policy and/or has adopted an irrational process, by failing to exercise anxious scrutiny or to demonstrate sufficient enquiry into the matters before her;
b. Ground 2: The Respondent has failed to have regard to relevant considerations including her duty under s55 Borders, Citizenship and Immigration Act 2009 and Article 8 ECHR;
c. Ground 3: The Respondent has failed to exercise, or to consider exercising, her discretion, or has fettered her discretion through inflexible application of the ACRS policy;
d. Ground 4: The eligibility decision, and in particular the decision that the First Applicant did not fall within the remit of the ACRS policy because she had not been able to board an Operation Pitting flight, was irrational;
e. Ground 5: The Respondent has breached Article 14 ECHR read with Article 8 by unjustified differential treatment of the First Applicant compared with other ACRS evacuees.
57. I address the grounds in turn.
Ground 1
58. Ground 1 is variously put in the Applicants’ grounds of claim and skeleton argument as (i) a departure from published policy, (ii) a failure to apply anxious scrutiny, and/or (iii) a breach of the Tameside duty of enquiry.
59. The Applicants contend, in summary, that having decided that the First Applicant could not submit a referral on behalf of the Second Applicant because she had not been evacuated between 13 August 2021 and 28 August 2021, the Respondent was bound to consider whether the Second Applicant was able to be considered under the SFP guidance as the ‘additional family member’ of his cousin and adoptive sister BR (who had been evacuated during the relevant period) and to determine whether there were exceptional circumstances in the Second Applicant’s case which made him eligible for resettlement.
60. The Applicants rely on the fact that the Respondent was at all times aware of the family’s circumstances and of the fact that BR had been evacuated under Operation Pitting, and note that BR was expressly referred to in the detailed representations in support of the referral. The Respondent was obliged, both by the Tameside duty and the duty to apply anxious scrutiny to the case, to consider whether the SFP policy applied, which included consideration of all relevant circumstances.
61. The Applicants submit further that had the Respondent applied the SFP guidance using BR as the UK-based family member, the exceptional circumstances threshold applicable to ‘additional family members’ was clearly met in the Second Applicant’s case, because of his status as a minor child in the care of third parties, the exceptional and tragic circumstances in which he had been separated from the rest of the family, the strong evidence of serious harm to both Applicants caused by their continued separation, and the fact that the rest of the family had been granted ILR under the ACRS scheme.
62. The Respondent contends that the SFP guidance was clear and was applied to the Second Applicant’s case. Under the guidance, only those who had been evacuated during Operation Pitting (that is, between 13 and 28 August 2021) were able to submit a referral on behalf of family members. The Secretary of State was entitled to expect that if there was a family member available who satisfied the criteria for a referral, they would be the person to submit the referral. There was nothing in the policy which required the Secretary of State to consider whether other family members might be available to sponsor a referral, or to consider whether BR could do so in the Applicants’ case.
63. The window for referrals under the Separated Families Pathway closed on 30 October 2024, prior to the eligibility decision in the Applicants’ case. The Respondent contends that it would have been open to the Applicants to make a formal application for leave outside the Immigration Rules (‘LOTR’) for the Second Applicant. The Respondent maintains that the potential to make an LOTR application, and the lack of any application by the Applicants, are relevant to the rationality of the Secretary of State’s position. The Respondent relies on the judgment of Sir Peter Lane in R (HR) v SSHD [2024] EWHC 786 (Admin) at §68-83.
64. I do not accept that the potential to make an application for LOTR is relevant to the rationality of the Respondent's eligibility decision. The legality of the decision must be judged by reference to the applicable legal framework and the facts and evidence before the decision-maker at the time of the decision. Whilst an alternative immigration route may in some cases constitute an adequate alternative remedy such that permission to apply for judicial review should be refused, in this case I do not consider that the potential to make a LOTR application is an adequate alternative remedy, for the reasons set out in the second witness statement of Cecilia Correale. Those include not only the cost and evidential barriers to the application, but also the fact that a successful LOTR application would result in limited leave rather than ILR. Further, the Respondent has never made any concession as to the prospects of success in such an application. The court in HR was considering a challenge to the refusal to provide an Afghan family with bespoke assistance to facilitate reunion. Crucially, it was doing so prior to the introduction of the Separated Families Pathway. The factual and legal matrix in HR was therefore significantly different to the context of this case.
65. On balance, however, I have concluded that the Respondent was not obliged to consider BR as a potential referrer under the SFP guidance and that it was not irrational for her not to do so. It is right that the SFP guidance, as a discretionary concessionary policy outside the Immigration Rules, must be applied flexibly and consistently with the purpose of the policy (an issue addressed further under Ground 3). I also accept that the circumstances of the referral were such that the Respondent was required to exercise anxious scrutiny in considering the referral; that is, “to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account”: R (KP) v SSFCDA & SSHD [2025] EWHC 370 (Admin).
66. However, the decision-maker was only required to consider the referral which had been made. The central difficulty for the Applicants under Ground 1 is that neither the referral form nor the detailed representations which accompanied the referral form identified BR clearly or at all as a potential referrer under the SFP guidance, nor requested that the Respondent consider BR as a referring family member in the event that the First Applicant was deemed ineligible to make the referral. The representations were addressed to the SFP guidance, but focused firmly on the relationship between the First and Second Applicants; the ‘additional family members’ route was only addressed in relation to their relationship.
67. BR’s circumstances were referred to at paragraph 11 of the representations but only in support of the submission that the family would have been evacuated during Operation Pitting but for the bomb at the airport. Although BR was referred to in the representations, the representations did not clearly distinguish her position from that of the other family members. There was no request to consider BR as a referring family member in the alternative.
68. If the representations accompanying the referral had identified that BR was eligible to make a referral, or requested that BR be considered as a referring family member in the alternative to the First Applicant, I would have concluded without hesitation that the Respondent was obliged to consider her as an ‘additional family member’ under the SFP guidance. In the absence of any such request, however, and even applying a heightened standard of review, it was not irrational for the Respondent not to carry out enquiries in order to identify whether other family members mentioned in the representations might be better placed to make a successful referral.
Ground 2
69. Ground 2 has two aspects: (i) whether the Respondent was obliged to consider the Second Applicant’s individual circumstances and his best interests in the spirit of s55 Borders, Citizenship and Immigration Act 2009 (‘BCIA 2009’) when making the eligibility decision; and (ii) whether the failure to do so breached the Applicants’ procedural and substantive rights under Article 8 ECHR.
70. Central to the first aspect of Ground 2 is the question of how the SFP guidance (and in particular the section of the guidance headed ‘Child welfare’) should be interpreted. The objective meaning of a policy is for the Tribunal to determine for itself and is not subject to Wednesbury review: R (O) v SSHD [2016] 1 WLR 1717 at §28, cited by the Upper Tribunal in R (Gurung) v SSHD [2025] UKUT 90 (IAC). The policy should be interpreted by the reviewing court as it would be read “by a reasonable claimant or support worker or adviser”: R (JB(Ghana)) v SSHD [2022] EWCA Civ 1392 at §68.
71. Section 55 BCIA 2009 requires the Secretary of State to make arrangements for ensuring that immigration functions are discharged “having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”. Section 55 reflects the substance of the obligation in Article 3.1 of the UN Convention on the Rights of the Child: CAO v SSHD [2025] AC 1117, [2024] UKSC 32. The Secretary of State has issued statutory guidance pursuant to s55(3) BCIA 2009, which provides that although the s55 duty applies only to children in the UK, the ‘spirit’ of the duty should be applied when exercising immigration functions which affect children overseas.
72. The Applicants contend that the Respondent was required by the SFP guidance, and by the statutory guidance issued under s55(3) BCIA 2009, to apply the spirit of the s55 duty when considering eligibility under the ACRS. The eligibility decision did not consider, or make reference to, the Second Applicant’s circumstances and there was no reference to the s55 duty. The eligibility decision was therefore unlawful as a breach of policy and a failure to have regard to relevant considerations.
73. The Respondent maintains that at the eligibility stage there is no requirement to consider a child’s best interests. The First Applicant was not eligible to ‘sponsor’ the Second Applicant’s referral under the ACRS scheme in the first instance, and so there was no validly made referral in which to consider the Second Applicant’s specific circumstances or his best interests. The s55 duty was simply not engaged. The Respondent submits that the requirement within the SFP guidance to have regard to the spirit of s55 should be read in context: the Separated Families Pathway was a limited policy concession and not a route under the Immigration Rules, a consideration of whether to grant leave outside the Rules, or a human rights assessment. The Respondent submits that the requirement in the guidance to consider the impact on a child when assessing eligibility is limited by the policy to cases in which the child is in the UK and making a referral on behalf of their parent.
74. There are two difficulties with the Respondent's case on Ground 2. First, the SFP guidance (under the heading “Child welfare”) expressly requires the decision-maker, when assessing eligibility, to (i) consider how a decision will affect a child, (ii) adhere to the spirit of the Section 55 duty and make enquiries when considering out-of-country referrals for children when there may be safeguarding or welfare needs which require attention, and (iii) make it clear in the decision letter that the child’s welfare has been considered in the spirit of s55. The requirement in the SFP guidance to consider the child’s best interests as a primary factor is unqualified by reference to any other criteria. Importantly, the SFP guidance does not limit the requirement to consider a child’s welfare to cases in which the UK-based family member has been found eligible to make a referral. Nor does the guidance limit the requirement to consider “all the information and evidence provided to ascertain how a child will be affected by a decision” to cases in which a UK-based child is making the referral on behalf of a parent, as the Respondent suggests; that is simply given as one example, and the reference in the guidance to “referrals for children out-of-country” within the child welfare section in my view makes it clear that the guidance, and the s55 duty, is intended also to apply to those cases.
75. Second, the distinction which the Respondent seeks to draw between a “validly made referral” and an invalid referral under the SFP guidance is not reflected in the guidance itself. Whilst the Immigration Rules do impose validity requirements which an application for entry clearance must meet before it can be substantively considered, the Separated Families Pathway was expressly identified as a discretionary policy operating outside of the Immigration Rules. There is nothing in the SFP guidance which defines validity criteria for a referral or which indicates that a referral which does not meet validity criteria will not be substantively considered.
76. The express terms of the SFP guidance, and in particular the requirement to consider a child’s welfare consistently with the s55 duty as part of the eligibility assessment, are inconsistent with the interpretation of the guidance for which the Respondent contends. If the eligibility stage of the Separated Families Pathway was, as the Respondent maintains, limited to a consideration of whether the family member ‘sponsoring’ the referral had been evacuated to the UK within the relevant dates, there would be no need to consider or make enquiries as to a relevant child’s welfare at the eligibility stage as the SFP guidance requires. Indeed, as there is no further stage under the SFP guidance at which individual circumstances can be considered (because the eligibility stage is followed only by an application for entry clearance and security/identity checks) the only sensible interpretation of the SFP guidance is that the child’s welfare must be considered at the eligibility stage. I therefore reject the submission that there was no duty on the Respondent to consider the Second Applicant’s welfare as part of the eligibility assessment.
77. There was no consideration of the Second Applicant’s individual circumstances or best interests, nor any reference to the s55 duty, in the eligibility decision letter. That omission is surprising, not only because of the terms of the SFP guidance, but also because the referral was accompanied by detailed representations as to the Second Applicant’s circumstances and a report by an independent social worker which concluded that although the Second Applicant’s basic physical needs were partially met in Pakistan, he remained at risk of significant harm and that his best interests clearly lay in being reunited with his family in the UK.
78. I conclude that the Respondent was obliged, by the express terms of the SFP guidance and by the statutory guidance issued under s55(3) BCIA 2009, to consider the Second Applicant’s individual circumstances and the impact of the eligibility decision on him and to treat his best interests as a primary factor when assessing whether he met the eligibility criteria. The failure to do so was a material breach of the Respondent's published policy and a material failure to have regard to relevant factors.
79. The second aspect of Ground 2 is Article 8 ECHR. The Applicants submit that the failure to have regard to the Applicants’ individual circumstances in the eligibility decision, or to consider Article 8, was a breach of the Applicants’ procedural and substantive Article 8 rights. The context of the eligibility decision and the Separated Families Pathway, as well as the material before the decision-maker about the Applicants’ circumstances, meant that Article 8 was clearly engaged and required consideration.
80. The Respondent maintains that an eligibility decision is not a refusal of entry clearance, nor a refusal of a human rights claim; it is a decision under a policy concession which does not determine any legal right to enter the United Kingdom. An eligibility decision does not constitute a direct interference with family life and does not require consideration of Article 8, much less a full proportionality assessment.
81. Section 6 Human Rights Act 1998 obliges the Secretary of State, as a public authority, to act compatibly with Convention rights, including Article 8. The Respondent does not cite any authority in support of the submission that the s6 duty does not apply to decisions made under a concessionary policy such as the ACRS. I have found above, in relation to jurisdiction, that the eligibility stage of the Separated Families Pathway cannot sensibly be separated from the process of granting entry clearance. As such, there is no basis on which the Respondent can distinguish the two stages of decision-making under ACRS or the Separated Families Pathway in particular. The Secretary of State is obliged to act compatibly with Convention rights throughout the process.
82. The purpose of the Separated Families Pathway, as stated in the SFP guidance, is to reunite pre-existing families. The adoption and application of the SFP policy is consistent with the positive duties imposed by Article 8. The effect of an eligibility decision under the SFP guidance is either that family life will be able to resume in the UK, or that the separation of family members will continue; in the latter case, the positive aspect of Article 8 is engaged. The availability of alternative routes by which an individual might seek entry clearance or leave to remain under the Immigration Rules or outside the Rules does not preclude the engagement of Article 8 by an eligibility decision or mean that the s6 HRA 1998 duty does not apply to decisions made under the Separated Families Pathway.
83. In this case, the context and purpose of the Separated Families Pathway and the SFP guidance, and the particular circumstances of the Applicants (a minor child separated from his pre-existing family members in the UK, where the pre-flight unity of the family had already been recognised by the Respondent) self-evidently required consideration of (i) whether Article 8 family life was engaged, and (ii) the proportionality of refusing to permit resettlement under the Separated Families Pathway.
84. The failure to consider whether Article 8 was engaged, and if so whether any interference with the Applicants’ Article 8 rights was justified under Article 8(2), was in the particular circumstances of this case a breach of the procedural requirements of Article 8, which require that the decision-making process is both fair and “affords due respect to the interests protected by Article 8”: R (TB) v Stafford Combined Court [2007] 1 WLR 1254 at §62.
85. The question of whether the eligibility decision was a breach of the Applicants’ substantive Article 8 rights was not addressed by the Respondent in her summary grounds or skeleton argument, since her position was that there was no duty to consider Article 8 at all in the decision. Nor was the substantive Article 8 issue addressed in the parties’ submissions at the hearing before me. It is not necessary for the purposes of this claim, and given my conclusions as to s55 and the procedural aspect of Article 8, for me to determine whether the eligibility decision was also a breach of the Applicants’ substantive Article 8 rights. I observe that on the evidence available to me, there seems considerable force in the Applicants’ submissions at §59-60 of the skeleton argument as to the disproportionality of the decision, but the matter is most appropriately addressed in the first instance by the Secretary of State.
Ground 3
86. The Applicants contend that the Respondent has failed to exercise her discretion, or alternatively has fettered her discretion through an inflexible application of the SFP guidance. They submit, following Munir, that if the SFP guidance is a concessionary discretionary policy, it can only lawfully allow for a flexible consideration of all the circumstances of the individual case. If the SFP policy imposes rigid criteria so that it operates as an immigration rule, then it must be laid before Parliament. Alternatively, the Applicants submit that as the Respondent's stated position is that the SFP guidance does not confer any discretion to waive eligibility requirements, she has unlawfully fettered her discretion.
87. The Respondent's response is that the Secretary of State has exercised discretion in determining the ambit of the Separated Families Pathway and the SFP guidance. Whilst there are elements of the guidance which do not involve discretion (including whether the person seeking the referral is eligible) other elements, including the consideration of whether there are ‘exceptional circumstances’ for additional family members, do involve the exercise of discretion. The Respondent maintains that a distinction must be drawn between the ACRS and the Separated Families Pathway on the one hand, and other routes to obtain entry clearance such as an application for leave outside the Rules (‘LOTR’), which involve a discretionary assessment of individual circumstances. In relation to the fettering of discretion, the Respondent submits that no challenge can be brought on this ground, because (as discussed above in relation to jurisdiction) she maintains that the source of the power under which the ACRS policy is formulated is the prerogative, and not statute. In any event, she submits that she did not fetter her discretion in the Applicants’ case because (i) the referral request was ineligible, and (ii) no entry clearance application was made.
88. I have concluded above, in relation to jurisdiction, that the ACRS Separated Families Pathway policy is a concessionary policy falling within the Munir definition, and that both the policy and decisions applying it are exercises of the statutory powers conferred on the Respondent by the 1971 Act.
89. I turn first to the question of whether the Respondent acted unlawfully by applying the SFP guidance inflexibly. The Secretary of State is authorised by the 1971 Act to make “concessionary policies setting out the principles by which she may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the United Kingdom”: Munir at §46. However, the less the flexibility inherent in the concessionary policy, the more likely it is to be a “statement as to the practice to be followed” within s3(2) of the 1971 Act and hence to be an immigration rule which must be laid before Parliament. The question then is whether the SFP guidance is sufficiently flexible to be a concessionary policy, or whether it is an immigration rule falling within s3(2) of the 1971 Act.
90. A comparison with DP 5/96 (the concessionary policy considered in Munir) is instructive. DP 5/96 purported to define the criteria to be applied when considering enforcement action against individuals with children. DP 5/96 identified particular factors which were likely to be of particular relevance, and indicated a “general presumption” that enforcement action would not normally proceed in certain cases, but stated clearly that each case should be considered on its merits. The Supreme Court held (§46) that the policy was “amply flexible” and was therefore not an immigration rule which had to be laid before Parliament under s3(2) of the 1971 Act.
91. By contrast, in this case, the SFP guidance imposes specific criteria. In particular it requires that the UK-based family member must hold permission under ACRS Pathway 1 and have been evacuated from Afghanistan between 13 August 2021 and 28 August 2021 (‘the eligibility requirement’). There is nothing within the SFP guidance which indicates any flexibility in applying the eligibility requirement or directs the decision-maker to consider each case on its merits.
92. Indeed, a central plank of the Respondent's case in this claim is that the eligibility requirement does not permit any discretion or flexibility. If the eligibility requirement is not met, the Respondent’s case is that the decision-maker is not required to give further consideration to the individual circumstances of the referral. The eligibility requirement in the SFP guidance therefore operates as a ‘gatekeeping’ criterion which is determinative of a referral under the Separated Families Pathway.
93. Because, on the Respondent's case, there is no flexibility in the eligibility requirement and the eligibility requirement is determinative of a referral for resettlement, it follows in my view that the SFP guidance is a statement “as to the practice to be followed” in granting leave to enter and remain and is an immigration rule within s3(2) of the 1971 Act.
94. I am supported in that conclusion by the dicta of Singh LJ in AFA at §58 that the ARAP eligibility criteria were rules which, if they could only be made under the 1971 Act, would have to be published and laid before Parliament. In the particular context of the ARR policy, it was common ground that the eligibility criteria could not be published, and hence could not be laid before Parliament. No such constraint applies in this case.
95. The Respondent's further submission is that it is inappropriate to “shoehorn” a discretionary assessment into an intentionally narrow and specific settlement pathway such as the Separated Families Pathway, and that it is important for “such arguments about AXL’s situation to be pursued through the correct administrative procedures established by the SSHD” which I take to be a reference to an application for LOTR. The Respondent relies on R (QP1) v SSHD [2025] EWHC 1388 (Admin) at §41-45. In that case, the claimant, who had been refused resettlement under ARAP, sought to rely on a letter before action sent in judicial review proceedings as itself constituting an application for LOTR. The court was not in that case considering arguments about discretion or the status of the ARAP policy, and the factual matrix was substantially different. The case is therefore of limited relevance to ground 3.
96. The Respondent is undoubtedly entitled, in the exercise of her broad statutory discretion under the 1971 Act, to create concessionary policies to address specific categories of individuals or factual situations, which may be intentionally narrow in scope. However, the narrowness of the scope of a particular policy is not the issue; it is how the policy is applied which is important.
97. The Respondent cannot have it both ways. If, as she maintains, the SFP guidance is a concessionary discretionary policy operating outside the Immigration Rules, then it can only be operated lawfully in a flexible manner which permits exceptions to be made in an individual case consistent with the purpose of the Separated Families Pathway. Applying a concessionary policy in a rigid manner which does not permit of exceptions is an unlawful fettering of the statutory discretion conferred by the 1971 Act: see AFA at §46. The SFP guidance must therefore either be laid before Parliament as an immigration rule or be operated in a flexible manner consistent with the intention of the policy.
98. The stated policy intention as set out in the SFP guidance is to “reunite families unintentionally separated during the events of Operation PITTING. The pathway is intended to restore immediate family units that continue to subsist in the same make up as prior to evacuation.” That policy intention covers a broader category of families than the strict eligibility requirement set out in the SFP guidance. The Applicants fell within the policy intention: they had undoubtedly been unintentionally separated “during the events of Operation Pitting” by the bomb explosion on 26 August 2021, as the Home Office had recognised in evacuating the rest of the family in October 2021. By applying the eligibility requirement rigidly and without considering the Applicants’ individual circumstances or the purpose of the policy, the Respondent unlawfully fettered her discretion. The failure to apply the SFP guidance flexibly and consistently with the stated purpose of the policy was material to the decision in the Applicants’ case.
Ground 4
99. The Applicants assert that the decision that the First Applicant did not fall within the remit of the ACRS policy because she had not been able to board an Operation Pitting flight, was a breach of a substantive legitimate expectation and that the decision was perverse. The Respondent submits that the legitimate expectation argument is misconceived.
100. The legitimate expectation argument is not set out in detail in the Applicants’ grounds or skeleton argument. There was at no point any express representation made to the First Applicant that she would be included within the remit of the Separated Families Pathway. I do not accept that the Respondent's actions in evacuating the First Applicant and other members of the family or in granting ILR under the ACRS were so clear, unqualified or unambiguous that they were capable of creating a legitimate expectation that the First Applicant would be included in the Separated Families Pathway or that she would fall within the remit of the SFP guidance, both of which were created after her evacuation. The eligibility decision was not a breach of the First Applicant’s legitimate expectations.
101. In relation to irrationality, the Applicants contend that it was perverse for the Respondent, having treated the First Applicant in the same way as other Operation Pitting evacuees and having granted her leave under the ACRS policy, to then exclude her from the Separated Families Pathway because of the tragic circumstances in which she was prevented from boarding an Operation Pitting flight.
102. The Respondent maintains that the decision was not perverse. She relies on R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin) at §78 for the proposition that the question of whether a decision is outcome irrational involves not just considerations of the impact on the individual, but also the balance to be struck between public and private interests. The Respondent submits that decisions about who to offer resettlement to under the ACRS were decisions about immigration control with socioeconomic impacts, such that the Secretary of State is afforded a wide margin of discretion: R (KA) v SSHD [2023] 1 WLR 896 at §186.
103. In my view the Respondent's reliance on KA is misplaced. The challenge in that case was to the policy itself: it was submitted that the distinction in the Afghan Resettlement and Immigration Policy Statement (‘ARIP’) between individuals called forward for evacuation and those who had not been was irrational. The Applicants’ challenge in this claim, by contrast, is to the application of the policy to their individual circumstances. Having formulated the policy, the Respondent does not identify any further balancing public and private interests in the application of the SFP guidance to the Applicants’ individual circumstances. The Respondent’s case is that the decision was a lawful and rational application of the unambiguous terms of the SFP guidance.
104. I have found above that the eligibility decision involved an unlawful failure to apply s55 BCIA 2009 and an unlawful failure to apply the SFP guidance flexibly or to exercise discretion. It follows from those conclusions that the eligibility decision was irrational: it was not a decision that a rational decision-maker properly directing herself could have reached.
Ground 5
105. The Applicants contend that the eligibility decision was a breach of Article 14 ECHR read with Article 8.
106. Considering the Article 14 challenge in this case involves consideration of the following questions (see In re McLaughlin [2018] 1 WLR 4250 at §15):
a. Does the decision under challenge fall within the ambit of a Convention right (in this case, Article 8)?
b. If so, is the First Applicant’s status as an ACRS visa holder who was not relocated under Operation Pitting an ‘other status’ for the purposes of Article 14?
c. If so, has the First Applicant been treated less favourably than others in materially the same position on the basis of her status?
d. If so, was the difference in treatment objectively and reasonably justified?
107. ‘Ambit’ for the purposes of Article 14 does not require that the substantive Convention right be breached, but only that the decision is sufficiently related to an interest protected by the right in question; it is a broad concept which requires flexible interpretation. In this case, the context, circumstances and nature of the eligibility decision, which was concerned with the reunion of a minor child and his family members, bring it squarely within the ambit of Article 8.
108. ‘Other status’ for the purposes of Article 14 does not have to be an innate or irreversible personal characteristic or analogous to the other prohibited grounds of discrimination referred to in Article 14, but it must exist independently of the treatment of which complaint is made and be personal to the individual. ‘Other status’ should be interpreted generously: R (RJM) v SSWP [2009] 1 AC 311 at §42.
109. The First Applicant relies on her status as an ACRS visa holder who was not relocated under Operation Pitting as an ‘other status’ for the purposes of Article 14. That status is personal to the First Applicant, and exists independently of the difference in treatment of which she complains. It is closely related to immigration status. It is in my view capable of constituting an ‘other status’ for the purposes of Article 14.
110. The less favourable treatment on which the First Applicant relies is the refusal of the Second Applicant’s referral for resettlement. She contends that ACRS ILR holders who were relocated under Operation Pitting are permitted to refer family members for resettlement, whilst as an ACRS ILR holder not relocated under Operation Pitting she has not been permitted to do so.
111. Article 14 does not require an exact comparator, either real or hypothetical, but it does require a difference in treatment between individuals in an analogous situation. In this case, ACRS ILR holders who had been evacuated under Operation Pitting were not in an analogous situation to the First Applicant, because they met the express terms of the eligibility requirement within the SFP guidance when the First Applicant did not. They were not in materially the same position, and therefore the difference in treatment does not fall within the scope of Article 14. I have found above that the SFP guidance, as applied by the Respondent, operates as an immigration rule; there can be no complaint of less favourable treatment where an application which does not fall within an immigration rule is refused because the requirements of the rule are not met.
112. Having found that there was not less favourable treatment within the scope of Article 14, it is not necessary to consider questions of justification.

Conclusion
113. Having given careful consideration to the written and oral submissions of the parties, I grant permission on all grounds.
114. The claim for judicial review succeeds on Grounds 2, 3 and 4. Grounds 1 and 5 are dismissed.

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