Upper Tribunal finds that Afghan Citizens Relocation Scheme cannot operate as an immigration rule

The Upper Tribunal has issued a judgment in R (MXL & AXL) v SSHD JR-2026-LON-000743, a case concerning the correct approach to the Afghan Citizens Resettlement Scheme (‘ACRS’), an ex gratia scheme intended to allow some Afghans to relocate to the UK after the government fell to the Taliban in 2021.

This claim concerned an adoptive mother (MXL) and 12-year-old child (AXL), who were separated in the course of the evacuation of Kabul in 2021. They were separated when their family was caught up in the bombing of Kabul airport, killing MXL’s husband (AXL’s adoptive father). With AXL missing and believing he was dead, MXL was able to travel to the UK with the personal authorisation of the Home Secretary. Meanwhile, kindly strangers took AXL to Pakistan, where he remains at risk of forcible removal to Afghanistan.

AXL and MXL applied to be reunited under the ACRS Separated Families scheme but were refused on the basis that MXL had not been relocated under one of the ‘Operation Pitting’ flights conducted by the UK in August 2021. That refusal was challenged, leading to this claim.

In her judgment allowing the claim, UTJ Hirst held that:

• The decision refusing AXL entry clearance was a decision made under the Immigration Acts, meaning that the Upper Tribunal had jurisdiction to consider the claim.
• The refusal decision failed to apply the spirit of s. 55 of the Borders, Citizenship and Immigration Act 2009 and breached the Applicants’ Article 8 rights by failing to consider whether the interference with their family life was proportionate.
• The Home Secretary had impermissibly refused to exercise her discretion flexibly and / or had fettered it by treating the ACRS Separated Families policy as an immigration rule, despite it not having been laid before Parliament as required by s. 3(2) of the Immigration Act 1971.
• The Judge dismissed two additional grounds, finding that the Home Secretary was not obliged to consider MXL’s daughter (who was relocated under Operation Pitting) as a potential sponsor and that there was no Article 14 ECHR violation.

Miranda Butler represented the Applicants, led by Nicola Braganza KC, instructed by Asylum Aid.

Matthew Fraser represented the Respondent, instructed by the Government Legal Department.