[2025] UKUT 00090 (IAC)

We detected some shift from the way that the Applicant put his case in the Amended Statement of Facts and Grounds (beginning at B/[24]), when compared to the skeleton argument and Mr Bandegani’s submissions.

The grounds argued that there are two ‘categories’ and three ‘pathways.’ The categories corresponded to the two bullet points at the beginning of the ACRS Guidance: those who have assisted UK efforts and stood up for relevant values; and vulnerable people. The Applicant claimed to fall into the first category. The three pathways were those as numbered [1] to [3] in the ACRS Guidance and the Applicant claimed to fall into ‘Pathway 1’. His lack of employment or engagement, directly or indirectly by HM Government, or UK Armed Forces, was irrelevant, as was the fact that he was not an Afghan national. Those were ARAP considerations.

The skeleton argument raised new points about previous versions of the ACRS and the ARIPS. The skeleton argument referred to unpublished recommendations made by the Civil Service on 24^th July 2023 to Ministers about changes to the ACRS, ‘clarifying’ the eligibility of TCNs who are nationals of countries which are considered safe. Contrary to Civil Service recommendations, the ACRS and the ARIPS were only amended in part. The ACRS was amended, in the applicable version, to add “and do not hold leave in a country considered safe by the UK” in paragraph [1] of the ACRS, beginning, “[1] Under Pathway 1…”. The ARIPS was also amended in §25, to add the phrase, “and do not hold leave in a country considered safe by the UK.” In both cases, the additions were to those who had been ‘called forward’ for evacuation but were not able to board flights. This was important context when considering the two criteria of ‘Pathway 1,’ only one of which needed to be met.

The first criterion related to risk only as a ‘past’ risk, while only the second related to ‘future’ risk:

The Applicant emphasised that the requirement not to hold leave in a safe country was only a requirement of the second criterion and had been the change in July 2023. The Applicant had ‘arrived in the UK’ and therefore fell within ‘a.’ The Respondent could have amended both criteria to include a requirement not to hold leave in a country considered safe by the UK but did not. This reflected the debt owed by the UK to those evacuated.

Future risk was irrelevant to the first criterion. If someone was vulnerable or at risk on evacuation, that was sufficient. Each of the Pathways served a different policy objective, without a single unifying principle.

To exclude the Applicant because he was not an Afghan national was contrary to the clear wording of the ACRS, which confirmed that “nationals of other countries…will be eligible.” The ARIPS reiterated this at §28. There was no requirement that TCN family members needed to be at risk.

In submissions, it was argued that the ARIPS describes four categories of entitlement to ILR. The sufficient eligibility criterion for any category was evacuation under Operation Pitting. Category 1 was described in §6 – Afghan nationals and their family members, who were either evacuated, or called forward and who had not yet left. All people granted Pitting LOTR were eligible for consideration under the ACRS, as confirmed in the summary table of ‘cohorts,’ in the ARIPS at AB/[122].

Category 2 was the ACRS, described in §7 and the first part of §8 of the ARIPS. Category 3 was ARAP and Category 4 was “other groups.” Categories 3 and 4 were also referred to in §8.

Next, ‘Pathway 1’ of the ACRS was divided into §§23a and b. Both were broader than Category 1, as they were not limited to Afghan nationals. Neither was a closed group, and both were merely statements of priority, not eligibility.

The Applicant met the eligibility criteria of the ACRS on the basis that he had been put at risk by events in Afghanistan and was evacuated on that basis. The Respondent had not cited the absence of a need for a “route to safety” in the impugned decision. The ACRS did not contain a provision excluding those who could return safely to their home country.

The Applicant also met both §§23a. and 23.b of ARIPS, as someone who had assisted the UK efforts in Afghanistan and who was vulnerable.