[2025] UKUT 00090 (IAC)

None of the facts in this case are disputed. This case turns on the correct interpretation of the Respondent’s policy, the ‘Afghan Citizens Resettlement Scheme’ (which we refer to as the ‘ACRS’).

The Applicant is the lead Applicant, with seven others whose applications have been stayed, pending determination of his application. None of the Applicants are Afghan nationals. The Applicant does not have any family members who are Afghan or British nationals. The Applicants were evacuated from Afghanistan by UK Armed Forces on 18^th August 2021, in anticipation of the Taliban’s imminent return to power, under “Operation Pitting” (described in detail in R (‘S’ and Anor) v The Secretary of State for Foreign, Commonwealth and Development Affairs & Ors) [2022] EWHC 1402 (Admin)). They were granted entry clearance and limited leave to remain outside the Immigration Rules (or ‘LOTR’). There is a general power to grant LOTR, and others who were later prioritised and granted entry and limited leave to remain became known informally as receiving “Pitting LOTR” (see §10 of S & Anor). The Respondent points out that she did not grant the Applicant Pitting LOTR, as he was evacuated before the Pitting LOTR ‘cohorts’ were agreed. Instead, he was granted entry and limited leave to remain, as an exceptional gesture of goodwill, initially for one month, then extended to six months. Other evacuees were eligible for, and were granted leave under an entirely separate policy, the Afghan Relocations and Assistance Policy (‘ARAP’). ARAP is also discussed in detail in S & Anor. It is unnecessary for us to say more about ARAP. The parties also accept that not everyone who was evacuated was entitled to, or granted, indefinite leave to remain (‘ILR’).

The Applicants were referred for consideration for ILR under the ACRS. We use the word ‘referred,’ as potential beneficiaries of the ACRS cannot apply for it, in contrast to many other routes to settlement, including ARAP. Instead, the ACRS is ‘invitation only.’ Even an invitation does not provide an entitlement to ILR. This is because the number of grants of ACRS ILR is capped at 20,000, with 5,000 in the first year. Not all of those potentially eligible will be granted ILR, as the Respondent anticipates that the ACRS will be oversubscribed. Instead, the ACRS talks of prioritisation, about which we say more later.

Having been invited to apply, (and having had applications lodged on their behalf by the Respondent) all the Applicants were assessed as ineligible under the ACRS, and their cases were ‘voided.’ Five others who were evacuated at the time were granted ILR. The Respondent says that she did so in error. She says that she is not obliged to repeat her mistakes.

The Applicant is a Nepalese national. The other Applicants are either Nepalese or Indian nationals. They were private contractors working as security guards, guarding the UK and Canadian embassies in Kabul. In the Applicant’s case, his employer was Hart International, which had a contract with the Canadian Government, albeit he provided services to both embassies. There is no suggestion of any contractual nexus between his employer and HM Government or the UK Armed Forces. The Applicant says that his nationality and the lack of any contractual nexus are irrelevant. He argues that he meets the criteria of one of three ‘pathways,’ about which we say more later.

The Applicant relies on ‘Pathway 1’ of the ACRS, as someone who was put at risk by [then] recent events in Afghanistan. The ACRS was intended to provide a ‘route to safety,’ which would prioritise those who had assisted the UK’s efforts in Afghanistan and stood up for values such as democracy. The Applicant points out that the ACRS did not only apply to Afghan nationals and could, for example, apply to third country nationals, (or ‘TCN’s), for example those in mixed nationality families.

In contrast, the Respondent argues that the ACRS was never intended to apply to TCNs who were not at risk in their home countries. The Applicant does not claim to be at risk in Nepal. Indeed, he returned to visit his family while working in Afghanistan, and previously, when he worked as a security contractor in Iraq.

We have been provided with the following bundles: a joint bundle ‘B’; and two authorities bundles, only the first of which we refer to, ‘AB.’ The parties have each provided a skeleton argument. The Applicant has also produced a note on relevant authorities as to the interpretation of policy, which has assisted us. Where we refer to page numbers in the bundles, we will do so in the following format: B/[x] or AB/[x].