[2025] UKUT 00090 (IAC)

We start by saying that any reader might be perplexed by the use of jargon in the ARIPS guidance, which includes ‘eligibility,’ ‘prioritisation,’ ‘pathways,’ ‘cohorts,’ and ‘categories;’ and further sub-divisions within those headings. However, standing back, we note that at its heart, the scheme is simple. There is no ‘entitlement’ to leave. It is a capped scheme, which is by invitation only. Even if someone is ‘eligible,’ others may be prioritised over them. There are eligibility criteria and then prioritisation within each of three ‘pathways.’

Also, at the heart of the ACRS, is the word, “resettlement.” After all, it appears in the title of the policy and is undoubtedly its focus. We have considered how that term is used throughout the ACRS policy, including for those already in the UK.

Next, we have tested whether our initial view on the original and natural meaning of the word is undermined by the context and purpose of the ACRS. We have also considered whether there is any inconsistency in the drafting. We have considered the relevance of ‘background facts.’

Finally, for completeness, we have considered the relevance of earlier versions of the ACRS and the ARIPS.

As set out above, to establish the meaning of the term “resettlement” in the ACRS we start with the ordinary meaning of that word, which is the re-establishment of a permanent home or way of life. ‘Resettle’ means something different from ‘transfer,’ as suggested by Mr Bandegani. ‘Resettlement’ assumes prior settlement, and then, by way of replacement, the establishment of a new way of life. Deploying the ordinary meaning of the word, there is no need for resettlement to be in a location different from the original settlement. It is perfectly feasible for those returning home to ‘settle again,’ after a period of absence.

Contrary to Ms Patry’s submission, ‘resettlement’ does not imply a particular purpose of settling again, or imply whether it is out of need, or choice. It also does not necessarily imply risk. Indeed, by way of context, there are many examples in the Immigration Rules of permitted settlement unconnected with risk, including based on families with a UK connection, long residence in the UK, or other historical connections to the UK. There is also a significant difference between a grant of limited leave to remain outside the Immigration Rules and ILR.

Given that ‘resettlement’ does not imply a particular purpose, the reader of the ACRS must look for its meaning in the context of the wider drafting of the policy. The word takes its colour from, and only makes sense, in the context of ‘risk.’ ‘Risk’ runs throughout the ACRS section of the ARIPS, and the ACRS Guidance. §21 of the ARIPS says that the “scheme will resettle up to 20,000 people at risk.” §23 talks of those “put at risk.” ‘Pathway 1,’ relied on by the Applicant and described in §25, talks of those “considered to be at particular risk.” ‘Pathway 2’, described in §26, talks of those “in need of protection” and “at risk.” ‘Pathway 3’ (§27) discusses “protection” and for “others “at risk.” ‘Cohort 2’ (ACRS), in the summary table at AB/[122], refers to “referred vulnerable refugees from Afghanistan and those put at risk.” In the ACRS Guidance, the section on “Pathway 1” refers to “vulnerable and at-risk individuals.” There are other references which we do not need to set out.

The Applicant contends that the policy is to be understood as applying two different concepts when addressing the two bullet-pointed criteria at the outset of the text. The first criterion, it is submitted, is related solely to past risk and that demonstration of past risk is sufficient to bring a person within the policy. The second criterion is submitted to be related to future risk. These submissions raise the question of how should ‘risk’ be objectively understood in the ACRS policy? Is there one unifying meaning, or different meanings, for specific sub-categories within the policy? If the latter, is it the case that in §23a of the ARIPS and ‘Pathway 1’, is it correct that ‘risk’ means ‘past’ risk, whereas elsewhere in the policy it means future risk? By past risk, is the policy to be understood as applying to someone who was at risk and was, as a consequence, evacuated from Afghanistan, even if they will never face any future risk if removed or required to leave the UK? Alternatively, in all cases, must there be a future risk in the event of removal or if required to leave the UK, or required to remain outside it?

The answer to the Applicant’s submissions is to be found by examining both ACRS and ARIPS as a whole and in the light of their purposes. On the one hand, the ARIPS and ACRS guidance do not expressly distinguish between past and future risk. However, equally, the policies do not expressly say that a person is entitled to settlement in the event that they face no future risk to themselves or a family member. Our conclusions in relation to the correct interpretation of the policy are as follows.

We are unable to accept the Applicant’s submissions and we are satisfied that the criteria in the policy are both to be understood as applying to those at future risk, not simply those who were at risk in the past. Firstly, this approach is consistent with the purpose of the policy when it is read and understood as a whole. In particular, in relation to Pathway 1, the pathway under which the Applicant claims to be entitled, this interpretation is reinforced by the exclusion of those who “hold leave in a country considered safe by the UK”. When one asks why such persons might be excluded, the answer is because they are not at future risk and have a safe country to return to. If past risk was sufficient for a person to qualify, then this exclusion would make no sense. Moreover, in the context of ARIPS, an interpretation that past risk is relevant and sufficient for one sub-category, §23a. makes no sense, when the ARIPS is read as a whole. §21 of the ARIPS, which introduces the ACRS, begins by speaking of settling people “at risk” (with no distinction between past and future risk). It then goes on to explain that the ACRS is consistent with the commitment “to expand legal and safe routes to the UK for those in need of protection.” If this related to past risk only, that would be inconsistent because those in the UK are clearly not in need of protection and resettlement. This is reinforced by the wording at the beginning of §23, which applies to both §§23.a and b., namely to give those “put at risk by recent events in Afghanistan” with “a route to safety”.

The ACRS potentially applies to those within the UK, as well as those yet to reach the UK. It provides eligibility regardless of the fact of evacuation alone. Why then do those already in the UK still need a “route to safety,” in the context of a resettlement scheme? On any view, they are already safe, if ‘risk’ only means past risk. The only answer is that the ‘recent events in Afghanistan,’ in §23 are not merely an historic footnote, but have enduring consequences, which continue to present a future risk: the resumption of a Taliban regime in Afghanistan. This is in marked contrast to settlement schemes which focus on historic criteria.

Risk, as understood in §23, can only be properly understood as meaning future risk. It is stated specifically under the heading, “Eligibility and referrals.” Objectively, it is the eligibility criterion, from which the three prioritisation ‘Pathways’ flow. It is also consistent with the passages in the ARIPS and the ACRS Guidance which refer to risk, the passages of which we do not repeat again. Suffice it to say, those who assisted in the UK’s efforts and stood up for specific values, and minority groups are discussed as being at risk, as are those who were ‘called forward’ but are not in a safe country. The other ‘pathways’ are refugees identified by the UNHCR; and those in Afghanistan or who have fled to other countries in the region, a pathway to which the respondent intended to add further detail. Risk as a concept meaning ‘future risk’ is consistent with all of this, whereas risk as ‘past risk’ for one sub-category, when it is not expressed as an exception, is inconsistent and makes no sense.

This interpretation is not undermined by the reference to the eligibility of TCNs. Firstly, it is important to appreciate that the policy carefully qualifies the eligibility of TCNs by means of the example of family members of mixed nationality, including reference to the spouses, partners and children of those eligible under the scheme because they are at future risk of ill-treatment in Afghanistan. How could such TCNs face a future risk? The answer is clear: eligible TCNs are close family members of a person at risk. The ACRS allows TCNs to be considered, in order to avoid splitting up mixed nationality families and also provide protection for the family members of those at future risk.

While it is true that TCNs who are close family members of those at risk are only an example, we interpret this to be an example of a class of those with the same or similar kind of personal circumstances. This explains why, at §29, the example is followed by the statement that “other family members may be resettled in exceptional circumstances.” The TCN exception for close family members of those at risk does not mean that the concept of future risk ceases to apply at all.

The interpretation is also consistent with the purpose of the ACRS, which, to reiterate, provides resettlement in order to mitigate the risk to specified groups. Resettlement serves no purpose where a person is not the subject of future risk, unless it is to recognise that mixed-nationality families, one of whom might otherwise be at risk, would be separated. It would be contrary to the purpose of the ACRS to prioritise those who have no future risk for immediate settlement, where the ACRS is anticipated as being oversubscribed, and where people under Pathways 2 and 3, including UNCHR refugees and human rights activists, who continue to be at risk, have to compete for the same limited scheme. It would also be contrary to that purpose to prioritise those at no future risk for immediate ILR when Afghan family members of British citizens (belonging to so-called ‘Cohort 4’ in the ARIPS summary table at AB/[122]) need to wait for between 5 to 10 years to settle.

We had referred earlier, in our summary of legal principles, to whether ‘background facts’ could be context. The Respondent says that an aid to interpreting the ACRS is the context of her long-standing practice of not granting leave to remain to TCNs who could return safely to their home countries. However, this runs the risk of substituting an objective interpretation of a policy for the Respondent’s interpretation. We have set out our view of the effect of the reference to TCNs in the policy having regard to the terms of the policy itself without regard to what the Respondent states is a long-standing practice.

The Respondent has also suggested that evidence on the nationality and other personal circumstances of those granted leave under the ACRS might be relevant. However, this again risks confusing objective interpretation of a published policy with the Respondent’s practice. The two may not be the same.

We have also considered the changes in the ACRS and the ARIPS in the run up to the applicable versions of the policy and statement published in July 2023. While the addition of wording in the ACRS and the ARIPS prioritisation only refers to those who were ‘called forward’ but remain outside the UK, it does not follow that the change in the wording was intended to benefit the Applicants. The Applicant’s case is that the changes in wording reflected a change in policy, to curtail prioritisation for those still outside the UK, who had been called forward, while maintaining the Applicants, in order to fulfil a debt of honour to them.

It makes no sense that the Respondent would have a greater debt of honour to those who had been evacuated, compared to those who were called forward but who were not evacuated. Instead, it makes sense that the change in wording on prioritisation for those outside the UK was by way of clarification, to avoid fruitless future referrals and the need to void them. For the Applicants, whose cases had already been referred and voided, there was no need to amend the wording. Their cases had already been regarded as ineligible on the unchanged eligibility criteria, which the Respondent reconsidered, but maintained. The change in wording reflected a clarification for those outside the UK, not a change in the policy. In the circumstances, the Respondent changed no more than was necessary in the wording.

The effect of the analysis set out above can be summarised as follows. The ACRS can be interpreted by understanding the natural and ordinary meaning of ‘resettlement,’ when read in the context of ‘risk,’ and the purpose of the policy. ‘Risk,’ as properly understood, means future risk.

To be eligible for resettlement under the ACRS, a potential beneficiary must be put at future risk, by recent events in Afghanistan, such that they require a route to safety.

While the ACRS does not exclude TCNs, those who can safely return to their home countries of origin do not require resettlement as a route to safety. Past risk alone is not relevant. It is only relevant insofar as it creates or contributes to future risk.

The ACRS provides a clear exception for TCNs who are the immediate family members of those at risk. This is an example of a class of people of the same or similar kind, linked to a person at risk. The exception does not mean that the concept of future risk ceases to apply.

In the light of the above, the question which then arises is whether there is any substance in the Applicant’s submission that the Respondent misinterpreted the ACRS when reaching the decision under challenge, or took into account immaterial considerations when doing so. We have reached the clear conclusion that the policy was correctly understood and interpreted in the Respondent’s decision and that the factors which the Respondent took into account were relevant and appropriate.

The Respondent was unarguably entitled to conclude that the Applicant did not fall within ‘Pathway 1’, when read in the context of future risk. “Those who have assisted the UK efforts in Afghanistan and stood up for values such as democracy, women’s rights, freedom of speech, and rule of law” (§23a.) is not a general dispensing provision whereby all of those who helped the UK efforts are thereby prioritised. The “and” is conjunctive and identifies risk on the basis that beneficiaries have “stood up” for specific, identifiable values and thus have a profile which would place them at risk.

We do not accept that it was irrational for the Respondent to conclude that the Applicant did not fall within that ‘pathway,’ as someone who simply acted as a freelance security person, engaged by, or for, a number of non-UK companies or other countries at any one time. This was not the Respondent erring by imposing an ‘ARAP’ criterion of direct engagement by HM Government or service with the UK Armed Forces. What the Respondent was doing was rejecting any suggestion of eligibility under the ACRS because of past service on behalf of the UK. The Respondent was entitled to emphasise that the ACRS prioritisation relates not to past service or loyalty to the UK, in the absence of ongoing risk. Rather, it relates to past assistance in UK efforts and standing up for specific values, insofar as they are relevant to future risk.

The need for future risk informed the Respondent’s conclusion that the Applicant did not fall into the group of “vulnerable people.” The ACRS goes beyond the grant of entry and limited leave, to grant immediate settlement. There was no reason to grant the Applicant immediate resettlement, when he was already a TCN (and presumably settled, in a permanent sense), in Nepal. In that connection it was clearly relevant to the application of the policy that the Applicant was a citizen of a safe country to which he could have resort so as to obviate future risk. He was not granted “Pitting LOTR,” in the sense of having been specifically identified in one of the cohorts described at §10 of S & Anor, as the recommendations for Pitting LOTR were not made until after the Applicant was evacuated. Whilst it may be that at the time when the Applicant benefitted from being brought to the UK, granted entry and temporary leave, the Respondent was entitled to take account of this as a gesture of goodwill given the circumstances prevailing at the time, but this does not amount to any basis to bring the Applicant within the scope of the policy.