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

Under Ground 1, Mr Owen’s case, as originally put, had three limbs.

First, the Foreign Secretary failed to consider at all (or failed rationally to consider) the weighty public interest in giving effect to the UT’s decision, or the detriment to the public interest of rendering that decision ineffective. In particular, the decision of the UT (a superior court of record) was that the UK’s obligations under Article 8 ECHR required that they be allowed to enter the UK. The protection of ECHR rights must be “practical and effective”, not “theoretical and illusory”: see e.g. HF v France, [252] (among many other cases). Ms Anderson was not provided with the claimants’ original Statement of Facts and Grounds, which made these points, nor did the “rationale” document make reference to these points.

Secondly, where a decision is taken on the basis of reports provided to the decision-maker by officials, the relevant matter must be fairly and adequately presented to them: R (Hindawi) v Secretary of State for Justice [2011] EWHC 830 (QB), [73]-[74]; R (Khatib) v Secretary of State for Justice [2015] EWHC 606 (Admin) [53]-[56], [72], [74], [78]; B4 v SSHD [2024] EWCA Civ 900 [2024] 1 WLR 5342, [62]. The “rationale” document did not address the critical question whether the claimants could be distinguished from others in Gaza in a fair, balanced or adequate way; and failed to draw the decision-maker’s attention to the central reason they asserted they were so distinct.

Thirdly, in cases falling outside the EEC the Defendant has adopted a policy or practice that he will not exercise his discretion to provide consular assistance unless there are exceptional circumstances relative to other people in Gaza. This approach was applied in the decision dated 12 March 2025 by Ms Taylor. However, in the June Refusal, Ms Anderson significantly narrowed the group against which the claimants’ circumstances were to be assessed, by asking “whether the situation of the […] family is such that theirs is exceptional relative to any others seeking to leave Gaza. In particular, I need to consider if it is exceptional relative to those seeking UK consular support outside of out established policy”. This was contrary to policy and/or irrational.

In oral argument, Mr Owen relied on two further points, which emerged partly in response to suggestions and questions from me. The first was a variation on the three limbs set out above. The decision documents show that Ms Anderson did not know and did not consider how many others had conditional or unconditional entry clearance to enter the UK (though Mr Milford provided the number falling into this category of whom the Foreign Secretary was aware in answer to a question from the court). This fact was critical in deciding whether the claimants’ case could properly be regarded as exceptional.

Furthermore, the decision documents show that Ms Anderson treated the change in policy by the Israeli government as irrelevant to the question of exceptionality. Given that the need to keep exceptions within narrow bounds was justified in part by a desire to avoid expending limited “diplomatic capital”, this was irrational.