Irrationality as the Sole Ground for Challenging Ministerial Delay in Exceptional Consular Assistance Decisions

Case: A and B for Judicial Review (Outer House, Court of Session) [2026] CSOH 41 (P307/26)

Judge: Lord Braid

Date: 24 April 2026

1. Introduction

This Outer House judicial review concerned an alleged unlawful delay by the Secretary of State for Foreign, Commonwealth and Development Affairs (“the respondent”) in deciding whether to provide exceptional consular assistance to two foreign-national petitioners (a mother and her 16-year-old son) who were living in Gaza.

The petitioners sought assistance to exit Gaza and travel to a Visa Application Centre (VAC) (the nearest being in Jordan) to enrol biometrics, a prerequisite for a UK entry clearance decision under a family reunion route connected to their family member in the UK (“the sponsor”), who had been granted refugee status.

The central legal question was not whether the petitioners should receive assistance, but whether the respondent’s ongoing failure to issue (or communicate) a decision since the request of 6 October 2025 was irrational, and therefore unlawful.

2. Summary of the Judgment

  • The court held that, in this context, delay is unlawful only if irrational, i.e. likely only where it is so excessive as to be manifestly unreasonable.
  • Assessing irrationality required looking beyond the mere passage of time to whether the delay was the product of a rational system/process, particularly given the policy- and foreign-relations-laden nature of the decision.
  • Prejudice to the petitioners was treated as a relevant factor but not sufficient on its own to establish irrationality.
  • On the facts, the delay was found to be the product of a rational, evolving, interdepartmental and security-sensitive process, and therefore not unlawful.
  • The petition was accordingly refused.

Although unnecessary to the outcome, the court also indicated (obiter) that the petition would not have been academic if delay had been found unlawful, particularly because interim relief in a parallel judicial review had effectively extended the relevant biometrics period.

3. Analysis

3.1 Precedents Cited and Their Influence

(a) The controlling standard: “manifestly unreasonable” delay

Lord Braid treated R (Ullah) v Secretary of State for the Home Department [2022] EWCA Civ 550 as authoritatively endorsing the principle that delay will be unlawful only where it is so excessive as to be manifestly unreasonable. The judgment uses Ullah to anchor the high threshold for intervention where no “established right” to the outcome exists.

The decision also relied on domestic acceptance of English public law formulations in Scottish judicial review, noting AS v Advocate General for Scotland 2021 SLT 1492 (which itself had approved a synthesis drawn from R (on the application of O) v Secretary of State for the Home Department [2019] EWHC 148 Admin).

(b) Delay as the product of a “rational system”: process review rather than stopwatch review

A key methodological move in the judgment is to insist that delay cannot be assessed “in the abstract”. Lord Braid drew on R (FH) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin), particularly the idea that courts may test whether delay results from a rational system, while not substituting their own view of how an executive department should allocate priorities or resources.

This framed the petitioners’ complaint as requiring scrutiny of the reasons for delay: the existence (or otherwise) of a rational process, including consultation and sequencing across departments, rather than simply the elapsed period.

(c) Prejudice/detriment: relevant but not determinative

The petitioners relied on detriment caused by delay (loss of opportunity to exit while routes were open; loss of opportunity to challenge a refusal). Lord Braid carefully handled the “particular detriment” language in R (FH), holding it was stated in a permission/arguability context and is an insecure basis for treating prejudice as a sufficient condition for irrational delay.

The court’s conclusion is effectively a clarifying proposition: prejudice is a relevant factor (at least if known to the decision-maker) but it does not, without more, establish irrationality.

(d) Consular/diplomatic context: heightened caution and deference

The respondent’s decision-making occurred under the Royal Prerogative and in a conflict setting with sensitive inter-state dependencies. Lord Braid adopted the familiar cautionary approach to high-policy and security domains:

  • R v Minister of Defence ex parte Smith [1996] QB 517 (Sir Thomas Bingham MR’s reminder that the more “policy-laden” and remote from ordinary judicial experience, the more hesitant courts should be in deploying irrationality).
  • R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289 (illustrating courts’ reluctance to intervene in foreign relations absent something approaching perversity).

These authorities shaped the intensity of review: the court assessed whether the delay fell outside the range of reasonable administrative responses in a complex, evolving, security-implicated setting, rather than asking whether a faster route could have been devised.

(e) The “no obligation to facilitate travel” strand

In resisting the suggestion that “predetermination” created an obligation to assist, the respondent relied on R (BEL) v SSFCDA [2025] 4 WLR 103, where Chamberlain J held that even entry clearance does not, of itself, generate an obligation to provide consular assistance. Lord Braid accepted the relevance of this: here there was only a “minded to grant” predetermination letter, expressly not a guarantee.

(f) Academic petitions and discretionary relief

On remedies and discretion, the parties cited:

  • King v East Ayrshire Council 1998 SC 182 (courts should not grant remedies serving no practical purpose).
  • Eba v Advocate General (2012) SC (UKSC) 1 (recognition of residual discretion to refuse relief).
  • Greenpeace Limited v Advocate General for Scotland [2025] CSOH 10 (factors relevant to discretionary refusal of relief, including practical effect, administration, prejudice, and conduct).

Although Lord Braid ultimately refused the petition on the merits, he indicated that if irrational delay had been shown, he would likely have granted relief: (i) a decision-order would have practical purpose, and (ii) the public interest favours ending irrational delay rather than tolerating it.

3.2 The Court’s Legal Reasoning

(a) The legal test: irrational delay in the absence of an established right

The parties agreed that the petitioners had no “established right” to the sought consular assistance, and thus the sole ground for unlawfulness was irrationality. Lord Braid adopted the “manifestly unreasonable” threshold and then added an important refinement: determining whether delay is “manifestly unreasonable” entails evaluating whether the delay is the product of rational actions/inactions and a rational decision-making system.

This approach aligns delay review with broader public law rationality analysis, while guarding against purely temporal arguments (“x months is too long”) untethered to causation and context.

(b) The Abbasi comparison: “refusal to consider” versus “considering but not deciding”

The petitioners sought support from R (Abbasi) v SSFCA [2002] EWCA Civ 1598, especially paragraph 104 (mandatory order may lie where there is a refusal even to consider diplomatic representations in the face of fundamental rights violations). Lord Braid accepted the conceptual relevance but treated it as illustrative: irrational delay might resemble a refusal to consider if there were no rational system or nothing was being done.

However, on the evidence (including a detailed affidavit from the head of the consular assistance department), the court found that the request had been under active consideration within government, including interdepartmental discussions and ministerial submissions—so the Abbasi paradigm was not made out.

(c) Why the delay was held rational on these facts

Lord Braid’s conclusion rested on a cumulative evaluation of the decision-making environment:

  • Operational constraints and third-country dependencies: exiting Gaza required (i) permission by Israeli authorities, (ii) Jordanian transit consent, and (iii) a UK “onward travel assurance” (OTA) that depended on the Home Office, alongside feasibility of routes (Rafah/Kerem Shalom).
  • Interdepartmental linkage: the ability to make an effective offer of consular help was bound up with whether an OTA could be granted, raising national security and identity-check concerns due to lack of biometrics.
  • Policy-laden coordination decision: ministers were considering a collaborative approach for cases requiring OTAs; the court treated this as a policy choice not for judicial second-guessing.
  • Evolving factual and legal uncertainty: the conflict situation and the awaited judgment in R (RKC 1) v Secretary of State for the Home Department [now [2026] EWHC 440 (Admin)] formed part of the context in which processes were being designed and decisions sequenced.
  • Resource and crisis pressures: increased operational demands on consular services from the broader regional conflict were treated as part of the rational explanation for time taken.

Even though a formal ministerial submission recommending refusal was only made shortly before the hearing, the court treated the issue as whether failure to reach that stage sooner was irrational. It held it was not.

(d) Prejudice arguments rejected as establishing irrationality

The petitioners argued the respondent’s inaction effectively determined their fate by running out the biometrics clock, and deprived them of a chance to judicially review a refusal. Lord Braid rejected this as a basis for irrationality for three main reasons:

  • Weight and relevance are for the decision-maker: the biometrics deadline and travel obstacles were not the only relevant factors; the predetermination letter gave no assurance of safe/possible VAC attendance.
  • Causation not shown: the petitioners did not identify when the delay became “manifestly unreasonable” nor establish that earlier decision-making would have enabled successful exit (given the external constraints).
  • Deadline proved flexible in practice: interim orders in the parallel judicial review extended the biometrics period, undercutting the claim that delay had conclusively determined the petitioners’ position.

3.3 Impact and Significance

(a) A structured approach to “delay irrationality” in Scottish judicial review

This decision reinforces and sharpens a structured framework for challenging administrative delay in Scotland:

  • The threshold remains high: manifestly unreasonable delay.
  • Courts assess whether the delay is the result of a rational process/system, not just elapsed time.
  • Prejudice matters, but is not a stand-alone route to establishing irrational delay.

(b) Deference in foreign relations and national security-adjacent administration

Where consular assistance intersects with diplomatic permissions, border arrangements, and security screening concerns, the court signals a restrained posture. The judgment is likely to be deployed by government respondents to justify longer decision cycles where there is credible evidence of active interdepartmental work and legitimate constraints.

(c) Practical lessons for litigants

  • Evidence of “no rational system” is key: to succeed, a petitioner will likely need to show inactivity, incoherence, or arbitrariness in the process, not just delay.
  • Pinpoint the “manifestly unreasonable” moment: a persuasive case may require identifying when delay crossed the line, and why.
  • Causation and counterfactual feasibility matter: where third-country permissions and operational routes are constrained, petitioners may struggle to prove that earlier decision-making would have produced a materially different outcome.

(d) Relationship with remedy discretion

Although the petition failed, Lord Braid’s obiter remarks suggest that if irrational delay is found, the court will generally regard a mandatory decision-order as serving the public interest in good administration, rather than being an impermissible judicial intrusion—particularly once irrationality is established.

4. Complex Concepts Simplified

  • Consular assistance (exceptional basis): Help given by the FCDO abroad (here, facilitating exit from Gaza). For non-British nationals, it is generally not provided unless criteria are met or an exceptional discretion is exercised.
  • Royal Prerogative: Executive power exercised by ministers in certain areas (including aspects of foreign affairs) without a specific statutory framework, still subject to judicial review on public law grounds.
  • VAC and biometrics: A Visa Application Centre collects fingerprints/facial images required by immigration rules before an application can be decided.
  • Predetermination letter: A Home Office communication indicating it is “minded to grant” entry clearance subject to later biometrics and checks; it is not a guarantee of entry clearance nor of travel facilitation.
  • OTA (onward travel assurance): A UK government guarantee to a transit country (here, Jordan) that a person will move onward (to the UK), required before transit permission is granted; treated as a Home Office function in the evidence.
  • Declarator: A court declaration stating what the law is (e.g., that delay is unlawful).
  • Order ad factum praestandum: A mandatory order compelling a public authority to do something (here, to issue an individualised decision within a specified time).
  • Academic petition: A case where the court’s decision would have no real-world effect; courts typically avoid deciding such cases.
  • Residual discretion: Even if unlawfulness is established, the court may sometimes refuse a remedy on equitable/pragmatic grounds, considering factors like practical utility and public interest.

5. Conclusion

In [2026] CSOH 41, the Court of Session refused to treat a substantial period of non-decision on exceptional consular assistance as unlawful where the evidence showed a rational, active, policy- and security-sensitive process involving interdepartmental coordination and rapidly evolving external constraints.

The judgment’s lasting significance lies in its disciplined articulation of delay review: irrationality remains the sole gateway in such circumstances, “manifestly unreasonable” remains the standard, and prejudice alone will not convert delay into unlawfulness. It also underscores the court’s cautious stance where the subject matter is intertwined with foreign relations, third-country permissions, and national security-adjacent administrative judgments.