No need for Home Secretary to provide application form for leave outside the rules under ARAP

The High Court has rejected a judicial review challenging the Home Secretary’s refusal to consider an application made outside the rules. In doing so, the court rejected the argument that the Home Secretary should create a specific application form for leave outside the rules under the Afghan Relocations and Assistance Policy. The case is QP1 & Anor v Secretary of State for the Home Department & Anor [2025] EWHC 1388 (Admin).

Background

The claimants are husband and wife Afghan nationals who went into hiding when the Taliban gained control of Afghanistan in August 2021. The husband, the first claimant, had worked for various humanitarian and aid organisations as well as assisting allied forces with interpreting. He applied to the Afghan Relocations and Assistance Policy on 29 October 2021.

A pre action letter challenging the ongoing delay was sent on 22 November 2022 and asked that the ARAP application was considered outside the immigration rules.

The judicial review was lodged on 22 December 2022. The defendants Home Secretary and Defence Secretary filed a joint acknowledgement of service and summary grounds on 26 January 2023. On 31 January 2023 the claimant sent an email with a completed visitor entry clearance application form to the Home Office’s public enquiries email address.

On 6 March 2023 permission for judicial review was granted. The ARAP application was then refused on 29 August 2023. The application was refused on the basis that the claimant did not meet the criteria for any of the categories. A review of the decision was requested by the claimant and the refusal was upheld on 12 June 2024 with no new reasons for refusal provided.  

Procedural point

Multiple applications were made and granted for the claimant to amend their grounds. The defendants complained that permission had not been granted on all the grounds, but the court pointed out that there were a series of consent orders that had been made on procedural matters and the defendants had not raised any shortcomings with the court before.

However, the court did say that:

Procedural rigour means that all parties and the court should know in advance of a substantive hearing whether permission has been granted to proceed on any particular ground. The numerous interim orders do not appear (as I understand them) to have dealt with the question of permission in relation to all of the amended grounds. The extent to which successive additions to the claimant’s grounds were the subject of permission decisions was indeed hard to piece together.

By the time of the hearing this point was “less acute” in this case as there was only one ground of challenge remaining, the rest having been abandoned.

The substantive decision

There were three issues to be determined by the court. The first was whether the Home Secretary’s decision not to consider the claimant’s application outside the immigration rules was unreasonable. It was argued by the claimants that the pre action letter amounted to an application for leave outside the rules and that in the absence of any appropriate application form for ARAP applicants, the Home Secretary should have waived the requirement for a form.

It was also submitted that there was no appropriate form which would allow the claimant to request a fee waiver and a biometric waiver. On behalf of the Home Secretary it was submitted that the claimant had not attempted to submit an application form or to ask for the waivers and so the claimant had not followed the proper procedures.

The court held that the pre action letter did not amount to an application for leave outside the rules, nor did the entry clearance application for a visitor visa. The court said:

It is unrealistic to expect the Home Office to accept that a visit visa form satisfied that requirement. The visitor route is inconsistent with the grant of settlement on humanitarian grounds. Nor does the visit visa form seek the sort of information that could enable a person properly to explain his or her case for LOTR on humanitarian grounds.

The second issue was a rationality challenge to the Home Secretary’s failure to provide an application form on which these applications could be made. The court found that the substance of what the claimant had said in his pre action letter and asserted in his other documents amounted to a protection claim, which cannot be made from outside the UK. The court therefore rejected this argument.

The third issue was whether the Home Secretary had provided sufficient and adequate reasons to explain why an application form for the ARAP scheme, which would provide a route for obtaining leave outside the rules without payment of an application fee or the provision of biometrics, was unnecessary. The court held that systems are the responsibility of the Home Secretary, and rejected this ground.

The process for making leave outside the rules applications

Given some fairly recent press and politicians’ “confusion” over a Palestinian family who applied using an application form for the Ukrainian scheme, in an appeal where that was not even raised by the Home Office as an issue, I think it is useful to set out in full the process for making these applications, as set out by the Home Office in this case:

11. There is no specific or bespoke form for applying for LOTR from overseas. Applicants must use one of the online application forms that cater for other routes to entry. The Guidance stipulates that a person applying for LOTR from outside the United Kingdom must apply on the online application form for the “route which most closely matches their circumstances.” In her witness statement on behalf of the defendants, Ms Janet Gordon-Smith (then Head of Armed Forces, Domestic Abuse and Settlement Policies in the first defendant’s Human Rights and Family Unit) sets out the reasons for this approach. She states as follows:

“39. There is no specific standalone application form for LOTR [for overseas applicants]. From a policy perspective, we think the many different circumstances where a person may seek LOTR is adequately catered for already:

a. Applicants should use the form most closely matching their circumstances – this means there are several forms that may be appropriate for an application for LOTR depending on the applicant’s circumstances.

b. It means we are able to gather as much information about the relevant circumstances as possible via the appropriate form to support casework, e.g. family forms ask about relationships and particularly cover the relationships and circumstances a caseworker is likely to need to consider. This benefits caseworkers and the customer because it means cases can be considered more quickly with less need to write out for information. For example, in some cases LOTR is being sought because the person does not meet a specific requirement of a route and it makes most sense for them to apply on the appropriate form for that route.

c. The range of circumstances a person might want to raise outside the rules has potential to be wide and varied and it would be difficult to develop a form that properly caters for them all – as compared to the current approach.”

For more, see our briefing on leave outside the rules.