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

Mr Milford for the Foreign Secretary made no objection to the new points raised during the course of the hearing and undertook to deal with them. He submitted that Ms Anderson’s decision on 6 June was rational and otherwise lawful. Facilitating departures from Gaza is a highly complex exercise which expends diplomatic capital. The Secretary of State rationally took the view that there was nothing exceptional about the claimants’ case that distinguished them from those who might seek consular assistance from the UK.

Mr Milford submitted that there is an incoherence at the heart of the first two limbs of Ground 1. The effect of the UT’s decision was that the Home Secretary was obliged to grant entry clearance to the claimants (subject to security checks). That was done and communicated by way of the “minded to issue” letters. Nothing further was required to render the UT’s decision effective. The fact that their (conditional) entry clearance arises because of a UT decision does not logically serve to distinguish the claimants from others with entry clearance. The claimants are in no different position from the many thousands who have entry clearance but do not have the funds to make the journey. They have the right to be admitted if they present themselves at the border (subject to security checks), but no right to assistance in getting there.

As to the first limb of the claimants’ originally pleaded case, whether a matter is a relevant consideration is itself for the decision-maker to determine, subject to review on rationality grounds. In this context, the Defendant’s decisions are to be afforded the widest possible margin of discretion, and the standard for review is whether the Defendant’s decision was “frankly perverse”: R (Al-Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279, [2008] QB 389, [141]. In any event, it is clear from the evidence that Ms Anderson was fully aware of the UT decision and its implications, and was also informed of the claimants’ arguments about its significance. There was nothing more for her to consider.

As to the second limb of the claimants’ original argument on Ground 1, the requirements of fairness will vary according to context; and what is required in an administrative decision-making process may be quite different from an adversarial or quasi-judicial process. As to the claimants’ submissions on the “rationale” document, these are based on the flawed premise that entry clearance arising from a judgment of the UT (rather than a decision of the Home Secretary) was a distinguishing feature.

As to the third limb of Ground 1 as originally pleaded, the claimants are wrong to assert that the Foreign Secretary has any policy or practice as to what he considers amounts to “exceptional circumstances” which would take someone outside the EEC. There is simply a discretion to assist in circumstances of the Foreign Secretary’s own choosing. The Foreign Secretary has so far chosen to assist only in exceptional circumstances. That is not a “policy” upon which an action can be founded. In any event, Ms Anderson has confirmed that her approach was “the approach that the FCDO has consistently taken to such requests”.

As to the additional points adopted by Mr Owen during the course of oral argument, Mr Milford submitted as follows.

First, the policy considerations mandating a narrow approach to exceptionality do not themselves need to be applied or considered when applying that test. The decision-maker could not be expected to apply them on the ground, as an individual decision-maker does not have visibility on the question of diplomatic capital.

Secondly, when considering the relevant cohort for the question of diplomatic capital, the entire pool needs to be engaged with in the predictive exercise, including those already in the tribunal system and those who may come forward. This is not a number that can be known with certainty, but it is nevertheless substantial.

Thirdly, an arithmetical exercise would risk being unprincipled and inconsistent. The Defendant is not operating a quota system, which would simply privilege those at the front of the queue. The decision-maker instead needs to examine the circumstances of individual cases in order to assess if there is extraordinary need. This is illustrated by the circumstances of the individuals who have already been found to be exceptional, as detailed in the witness statements of Ms Taylor.

Fourthly, and in any event, the Secretary of State was aware of the numbers of people, as the decision letter itself refers to 40 eligible persons who were helped to leave via Israel and Jordan since October 2024.