AC-2025-LON-000997 - [2025] EWHC 1970 (Admin)

I begin by accepting three points made by the Foreign Secretary. First, the grant of entry clearance did not in and of itself give rise to any obligation to provide consular assistance to enable the claimants to travel to the UK border. As the Foreign Secretary submits, there are people all over the world who have conditional or unconditional clearance to enter the UK but who cannot, for one reason or another, get to the UK border. The reasons may be many and various. Consular assistance may or may not be provided. The refusal of such assistance does not undermine the grant of entry clearance or make it ineffective.

Secondly, there is nothing in the claimants’ suggestion that their case should have been regarded as exceptional simply because their entry clearance was granted following a successful appeal to the UT, rather than in the first instance by the Home Secretary. The UT is a superior court of record and the UK Government gives effect to its decisions, subject to any appeal. In this case, the UK Government (through the Home Secretary) did so on 30 January 2025 when she indicated that she was minded to grant entry clearance to the claimants, conditional on security checks. A family in similar circumstances would have just as strong a claim to consular assistance if their entry clearance had been granted immediately upon application to the Home Secretary.

Thirdly, when considering whether to make an exception to an established policy, and in circumstances where the criteria for exceptionality are not themselves set out, it is for the decision-maker to decide what is relevant and what is irrelevant, subject to rationality review: R (Friends of the Earth) v Secretary of State for Transport [2020] UKSC 52, [2021] PTSR 190, [116]-[121]. Similarly, the obligation on a decision-maker to take steps to gather information extends only to taking such steps as are reasonable; and the decision as to what steps are reasonable to take is for the decision-maker, again subject to review only on grounds of rationality: R (Balajigari) v Secretary of State for the Home Department [2019] EWCA Civ 673, [2019] 1 WLR 4647, [70].

These principles provide the starting point for a consideration of the rationality of Ms Anderson’s decision of 6 June. However, whatever the latitude in identifying relevant factors or in deciding how to go about making the decision, the obligation to decide rationally remains. In R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin), I explained by reference to higher authority that rationality has two aspects—process rationality and outcome rationality:

“56.

Process rationality includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones, but is not limited to that. In addition, the process of reasoning should contain no logical error or critical gap. This is the type of irrationality Sedley J was describing when he spoke of a decision that ‘does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic’: R v Parliamentary Commissioner for Administration ex p. Balchin [1998] 1 PLR 1, [13]. In similar vein, Saini J said that the court should ask, ‘does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?’: R (Wells) v Parole Board [2019] EWHC 2710 (Admin), at [33].

57.

Outcome rationality, on the other hand, is concerned with whether – even where the process of reasoning leading to the challenged decision is not materially flawed – the outcome is ‘so unreasonable that no reasonable authority could ever have come to it (Associated Wednesbury Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233-4) or, in simpler and less question-begging terms, outside the ‘range of reasonable decisions open to a decision-maker (Boddington v British Transport Police [1999] 2 AC 143, 175).”

At [76], I explained that “the court’s approach to assessing the rationality of a decision varies depending on the importance of the interests affected by it or, to put the point another way, the gravity of its potential consequences”. This was so whether or not it was possible to identify a “right” impacted by the challenged decision.

At [77], I noted that, in a case where the potential consequences were especially grave, this had consequences for the way the court evaluated complaints of process rationality: the court would “subject the decision to ‘more rigorous examination, to ensure that it is in no way flawed’” and would “expect the decision-maker ‘to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account’”. At [78], I said that the nature and importance of the public interests were likely to be important when assessing complaints of outcome rationality.

In this case, the potential consequences of the decision under challenge are certainly grave. Although they have no anterior right to assistance, the effect of the challenged decision is to deny a family of six, including two minor children, the opportunity to escape from a place where they face the daily danger of death or injury from military action or starvation. This means that, in considering what are in effect complaints of process rationality, it is necessary to subject the challenged decision to “rigorous examination, to ensure that it is in no way flawed”.

In doing so, it is important to have regard to another aspect of rationality review. Even when applying a very broad test (e.g. a test of exceptionality with no defined criteria), a decision-maker generally acts in a particular policy context. The context may depend on previous decisions by the same decision-maker. The policy context helps shape what will be rational at the next stage and what will not. The point was put in this way by Sales LJ giving the judgment of the Court of Appeal and accepting a submission of mine, in R (London Criminal Courts Solicitors’ Association) v Lord Chancellor [2015] EWHC 295 (Admin), [2016] 3 All ER 296, at [13]:

“even if a decision-maker starting with a blank canvas might have a wide discretion how to proceed in order to achieve the result required, he might proceed in stages and gradually structure his consideration of how to move forward. A decision-maker who structured his approach in this way might adopt criteria as a guide for himself. If he does so, the rationality of his decision-making might in principle be tested by reference to the rationality of his assessment whether his own chosen criteria have been satisfied. The rationality of steps in his reasoning could in this manner be assessed in a more precise and determinate way.”

In this case, the decision challenged was about whether to make an exception from the policy about the categories of person to whom consular assistance would be offered. The parameters within which the rationality of that decision fell to be examined can only be understood by reference to the considerations which animated the policy. The policy was drawn as tightly as it was for particular reasons. The main one was that the provision of consular assistance would involve the use of “diplomatic capital”: see para. 9 of the “rationale” document which went to Ms Anderson and para. 32 of Ms Taylor’s witness statement. In context, that term refers to the limited stock of goodwill upon which a state can call when it seeks to persuade another state to do something that, other things being equal, that other state would rather not do.

Against this background, Ms Anderson’s reasons disclose three related flaws. Taken cumulatively, these in my judgment vitiate the decision.

The first flows from the structure of the decision. Ms Anderson considered, first, whether the family fell within the established eligibility criteria (including the EEC) and secondly, having found that they did not, whether their circumstances were exceptional. Since it is uncontentious that the family did not meet the established eligibility criteria, the second was the key question. In answering it, Ms Anderson compared the circumstances in which family were living with those of other families in Gaza and the age and vulnerability of the family members. Since these were not exceptional, when compared with others in Gaza and others seeking British consular support from Gaza, the request for assistance was refused. This, however, left out of account the principal factor that, on the claimants’ case, distinguished them from others and justified the provision of consular assistance to them.

I have already noted that the fact that the claimants’ conditional entry clearance was granted following the UT’s decision did not, in itself, logically distinguish them from those granted a similar status by the Home Secretary without the need to appeal. But the fact remains that the claimants did and do have conditional entry clearance, granted on the basis of their close family connection to a UK national. That connection was, in the view of the UT, such as to give rise—on the particular and exceptional facts of their case—to an obligation binding on the UK in international law to admit them to the UK. In the context of a policy designed to focus on UK nationals and others with a close connection to them, the decision-maker was in essence being asked to treat this as a sufficient connection to the UK to justify the provision of consular support.

Mr Milford submitted that I should take the limited EEC as a fixed matter, focus exclusively on the question of exceptionality and (because the criteria for exceptionality were not defined) allow a wide latitude to the decision-maker to decide what was relevant in that regard. A similar argument was made in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44, [2014] 1 WLR 2697. Lord Carnwath and Lord Mance (with whom Lord Clarke and Lord Toulson agreed) said this at [70]:

“It may be said (as Gloster J suggested [2013] EWHC 168 (Admin) at [78]) that there is a difference between formulating or reformulating policy, and considering exceptions to policy once made. In many contexts, no doubt, that may be a significant difference, where for example the making of policy is itself subject to a formal process, perhaps including consultation, distinct from its application in individual cases. However, in the present context that seems a distinction without a difference. Our review of the development of policy shows that, on the one hand, policy submissions were made to ministers without any formal procedure, and generally in response to issues raised by individual cases.”

The same applies here. The claimants were putting forward their conditional entry clearance (granted on the basis of a close family connection to a UK national) as a basis to justify the provision of consular assistance. The FCDO had to consider whether that was a sufficient basis for granting consular assistance or not. There were two ways in which the significance of this status could have been considered: as a basis for regarding their case as exceptional or as a basis for extending the EEC. It was never grappled with in either of these two ways.

The second flaw is connected to the first. As I have said, the request for consular assistance was justified by reference to the claimants’ conditional entry clearance, granted on the basis of their close family connection with a UK national. Since the limited terms of the EEC and the strictness of the exceptionality criteria were justified by the need to preserve the UK’s diplomatic capital, it was relevant to consider how many others were likely to be in the same position as the claimants. Making requests for a large group would involve the expenditure of significant diplomatic capital. Making requests for a smaller group might not. But neither the “rationale” document, nor Ms Anderson’s decision, makes any attempt to assess the size of the relevant group.

The “rationale” document notes that around 50 requests for support had been received since May 2025, but does not say how many of these were from individuals with entry clearance (let alone entry clearance granted on the basis of a close family connection with a UK national). At the hearing I was told that the total number of whom the Foreign Secretary is currently aware who have final or conditional entry clearance to enter the UK is 38, though there may be other cases whose applications have not yet been considered. The total number known to be in the same position as the claimants would have been relevant to understand how much diplomatic capital would have to be used to assist them. If a decision-maker is concerned that acceding to a request in one case risks opening the floodgates, he or she ought to make some attempt to understand whether what lies behind the gates is really a flood, or only a trickle.

I accept that there are others whose cases are currently before the tribunals and/or the courts. But, unlike the claimants, those relate to individuals whose entitlement to (conditional) entry clearance remains contested. Moreover, it may be assumed from the Home Secretary’s stance in the claimants’ appeal that she is not currently granting leave to persons in the claimants’ circumstances. It seems likely that she will be appealing positive FTT or UT decisions made on Article 8 grounds where the applicants are not core family members of a UK national. The appeal in the claimants’ case is now listed to be heard in January 2026. For the time being, the category with leave to enter the UK on the basis of a close family connection to a UK national may be very small. If the Home Secretary’s appeal does not succeed and the category is widened, that might be a proper basis for narrowing the policy on consular assistance later. The prospect of this happening in the spring of 2026 (by which time conditions in Gaza may have changed) did not make it inevitable that the claimants’ request would be denied.

The “rationale” and decision documents also took no account of the numbers of British nationals currently in Gaza and seeking consular assistance. It appears from information given to me at the hearing that, at the time of the decision, there was one such individual, who was being given assistance to leave. He had left by the time of the hearing. The fact that there was only one individual in this position was relevant, given Ms Anderson’s reliance in her decision on the fact that the FCDO policy is “first and foremost focussed on the safe departure of British nationals and their direct dependants, and secondarily for those who fall within the specified exceptions”. If the aim was to preserve diplomatic capital for the benefit of such individuals, rationality required the decision-maker to have some idea of how many British nationals seeking assistance there were. The FCDO had this information, but there is no evidence that the decision-maker took it into account.

The third flaw arises from Ms Anderson’s conclusion that “Israeli policy – or the viability of departure requests – is not a relevant consideration to exceptionality”, because FCDO policy is focussed on British nationals, their direct dependants and those falling within the EEC. Mr Milford’s principal response was to say that, at the stage of considering exceptionality (as opposed to at some earlier stage), she was right to regard Israeli policy and the viability of departure requests as irrelevant. As I have already said, it was wrong—for the reasons given by the Supreme Court in Sandiford—to regard the question of exceptionality and the question whether to modify the EEC as fundamentally distinct. The refusal to make an exception for the claimants can also be read as a refusal to modify the policy to cover those who, like them, had a conditional or unconditional entry clearance decision in their favour, based on their close family connection with a UK national.

In either case, the rationality of the decision fell to be evaluated in accordance with the considerations which made it important to limit the categories to whom consular assistance was provided. Chief among these was the need to preserve diplomatic capital. Even if the Foreign Secretary wished to maintain a policy focussed on UK nationals and those with a close connection to the UK, the Foreign Secretary had to confront the question whether extending eligibility to those in the claimants’ position would, in fact, run down the UK’s diplomatic capital and, if so, by how much.

At least in relation to Israel, it would do so only if and to the extent that the Israeli authorities were being asked to do something that, other things being equal, they did not wish to do. If facilitating the exit of Palestinian citizens from Gaza accorded with their current policy, then that was relevant in assessing how much diplomatic capital would be expended by assisting them. Even an assessment as cautious as that in para. 12 of the “rationale” document (“it is possible that the Israeli authorities may more readily accept requests for evacuating non-BNs from Gaza than has previously been the position, but that cannot be established with certainty”) could have made a difference. It might have caused the decision-maker to think that it was worth making a request to test the water. In this context, a stance which regarded the evidence of a change in the Israeli position and the viability of departure requests as categorically “irrelevant” was, in my judgment, irrational.

This analysis holds good despite the fact that arrangements would have to be made with Jordan as well. The decision documents suggest that it is the interface with the Israeli authorities that presents the greatest difficulty and Mr Milford did not suggest the contrary. In any event, if there was an error in relation to the position of Israel, there is nothing to show that the difficulties of arranging entry to Jordan would be regarded as a sufficient basis for the refusal on its own. It may be relevant that BSJ’s initial enquiries in this regard appear to have met with a positive response (as a matter of principle, at least).