Court dismisses appeals of two Afghan nationals who were refused under the secret relocation scheme

Two Afghan nationals sought to appeal the High Court’s dismissal of their challenges to the Home Office’s decision to refuse their applications for relocation to the UK under the Afghanistan Response Route, the secret relocation scheme set up in response to the data breach in February 2022. In an OPEN version of a CLOSED judgment, the Court of Appeal dismissed the appeals and held that the Afghanistan Response Route, as amended after the court’s order in R (CX1 & others) v Secretary of State for Defence & another [2024] EWHC 892 (Admin), was not irrational and therefore not unlawful. The case is R (AFA & Others) v Secretary of State for the Home Department & another (OPEN Judgment) [2025] EWCA Civ 825.

Background

Both appellants made applications under the Afghan Relocations and Assistance Policy on behalf of themselves and their dependants in August and October 2021.

The first appellant, AFA, worked as an armoured vehicle driver and security officer for various companies, assisting the Afghan Ministry of the Interior, which was funded by the UK government funded Strategic Support to the Ministry of the Interior (SSMI) program and the Strategic Support for Countering Violent Extremism (SSCVE) project. The first appellant’s wife and children are dependants on the claim.

The second appellant, QP1, supported the supported the British and Coalition mission before the Taliban takeover. His work included translating military vehicle manuals for Afghan security forces, assisting NGOs, representing Afghan missions abroad, and serving as a project officer for Afghan Aid and other UK humanitarian organisations, including in roles focused on gender equality and gender-based violence. The second appellant’s wife is a dependant on the claim.

The case was heard in the Court of Appeal in May 2025, at which time the first appellant was challenging the delay in making a decision in his substantive ARAP application in OPEN proceedings. The first appellant’s challenge to the refusal of his ARAP application was recently dismissed by the High Court.

Meanwhile, the second appellant was challenging the Home Office’s decision to refuse his substantive ARAP application. On 10 June 2025, the High Court dismissed this challenge.

Both appellants were affected by the Ministry of Defence’s data leak incident and therefore potentially came within the remit of the Afghanistan Response Route.

In the cases of both appellants, the Secretary of State for Defence informed the respective Special Advocates in CLOSED proceedings that the appellants were ineligible for relocation under the Afghanistan Response Route because they did not fall within the ‘high risk’ category.

The appellants sought to challenge these decisions in CLOSED proceedings in the High Court.

In the challenge by the first appellant, AFA & others, the High Court found that, even when applying anxious scrutiny and the Wednesbury principles, the Secretary of State was not acting unlawfully by limiting their assessment to the roles performed by applicants when considering whether to relocate individuals affected by the data breach to the UK. The court accepted the Secretary of State’s evidential basis for the policy, emphasising resource, operational and immigration concerns, and the difficulty of assessing risk for those outside the defined ‘high profile’ roles. The Court also rejected the first appellant’s second ground advanced on the basis of Article 8 ECHR, and held that this ground was “unrealistic” and unapplicable.

The claim for judicial review was accordingly dismissed by the High Court on 18 July 2024.

In the challenge by the second appellant, QP1 & Anor, the High Court highlighted the effect of CX1 and others, namely that in determining whether to relocate someone under the Afghanistan Response Route, it was lawful at the level of policy for the government for the Secretary of State to consider whether a relevant applicant was a ‘high profile’ person performing one of the roles in the Ministry of Defence’s list, or was a person performing another ‘high profile’ role putting them at effectively equivalent risk. The second appellant’s wife, whose data was not compromised, was not relevant to the claim.

The challenge was in turn dismissed by the High Court on 23 July 2024.

The appellants sought to appeal the decisions of the High Court to dismiss their claims for judicial review.

Grounds of appeal

Both appellants sought to appeal on the basis that the respondents’ policy on relocation was irrational and therefore unlawful. The first appellant also sought to appeal on the ground that the respondents unlawfully fettered their discretion in devising and applying the Afghanistan Response Route.

The judgment

In its judgment, the Court of Appeal noted the judgment of the court in the case of CX1 and others, where the court found in favour of the claimants, quashing the Secretary’s of State’s decision not to relocate them under the Afghanistan Response Route and requiring them to reconsider their cases.

The Court of Appeal highlighted that following the court’s order in CX1 and others dated 23 April 2024, the Divisional Court directed, at paragraph 5, that the Secretary of State for Defence “shall reconsider the approach to be taken to identifying those within the highest risk cohort for the purposes of the 25 March policy” by 14 June 2024.” In a letter dated 14 June 2024 the Government Legal Department confirmed that the Secretary of State had undertaken that reconsideration and had determined:

that the highest risk cohort for the purposes of the 25 March policy comprises high-profile individuals who either (i) held one of the roles identified in the MOD’s list; or (ii) held a different role which puts them at equivalent risk to those in the identified roles.

Turning to the grounds in the instant case, the court considered the appellants’ argument that the respondents’ underlying policy was unlawful. The court endorsed the approach in CX1 and others, particularly the seven “important contextual features”, noting these features made “the crafting of a policy that would be both just and workable very difficult.” The court also emphasised the importance of anxious scrutiny in this context because of the potential risk to life, a point raised and emphasised in CX1 and others. The court went further to highlight that the potential risk to life can be said to have arisen as a result of the “mistaken conduct of the British government”.

However, noting the amendment to the policy in light of the judgment in CX1 and others, the Court of Appeal ultimately rejected the ground of irrationality of the underlying policy and held that the respondents were entitled to “draw the line where they have” in terms of restricting the Afghanistan Response Route to high-profile roles only.

The first appellant argued that the respondents unlawfully fettered their discretion in devising and applying the relocation policy. As discussed in the case of CX1 and others, the doctrine of the fettering only applies where a statutory discretion exists, and here the policy was made and applied under prerogative powers, not statute. The first appellant argued that the Afghanistan Response Route was not created under prerogative and there were two sources of statutory discretion, namely the Immigration Act 1971 and section 6 of the Human Rights Act.

The court rejected these arguments. It noted that although the exercise of powers to control leave to enter and remain in the UK were created by statue, the formation and adoption of the Afghanistan Response Route, which was a background policy of relocation, is an exercise of the prerogative. The court also rejected reliance on the Human Rights Act as a source of discretion, noting that the Act creates duties, not powers, and does not itself confer decision-making authority. 

Whilst the Court of appeal noted the “natural sympathy” that the appellants’ cases attracted, both appeals were ultimately dismissed.