Factual and Procedural Background
The Petitioners are a mother and her 16-year-old son, nationals of Location A, residing in a tent in Location A. A family member (the father) has refugee leave in the UK and resides in Location C. The Petitioners applied under the Family Reunion scheme for leave to join him. The Immigration Rules require biometric enrolment at a Visa Application Centre (VAC) before a decision on their immigration applications can be taken. The local VAC closed and the nearest VAC is in Location B, which the Petitioners cannot reach.
On 6 October 2025 the Petitioners sought consular assistance from the Respondent (a senior Foreign Department official) to exit Location A and travel to the VAC in Location B. The Respondent applied Extended Eligibility Criteria (EEC) in December 2023; the Petitioners met one EEC criterion but not the other (that decision is not challenged). The Respondent retained a residual discretionary power under the Royal Prerogative to provide exceptional consular assistance and requested further information from the Petitioners. The Petitioners provided that information on 19 October 2025. Between 9 December 2025 and 26 February 2026 the Respondent communicated that the matter continued to be considered, but by the hearing date (26 March 2026) no decision had been issued or communicated.
The Petitioners seek (1) a declarator that the Respondent's ongoing failure to decide their request for exceptional consular assistance is irrational and unlawful, and (2) an order ad factum praestandum requiring an individualised decision within 48 hours (or by 25 March 2026 as originally sought). The SSHD had issued "predetermination" letters indicating a "minded to grant" decision subject to biometrics being enrolled within 240 days of application; that 240-day period was due to expire on 31 March 2026. A parallel judicial review succeeded in obtaining an interim order extending the 240-day period by a further 240 days.
Legal Issues Presented
- Whether the Respondent has unlawfully delayed (such delay being unlawful only if irrational) in determining the Petitioners' application for exceptional consular assistance.
- Whether the petition is academic.
- Whether, even if delay were unlawful, it would be equitable for the court to refuse to grant the remedies sought (exercise of residual discretion).
Arguments of the Parties
Petitioners' Arguments
- Delay is reviewable only on irrationality; the court must assess reasons for delay and prejudice suffered. A sufficiently gross delay warrants relief (citing R (on the application of K) v SSHD).
- The Respondent has a duty to exercise discretion; failure to decide had the practical effect of refusal and avoided scrutiny.
- If unlawfulness were made out, remedies should follow as a matter of good administration; the petition was not academic if the 240-day limit were extended.
- The Respondent knew critical facts (inability to reach a VAC, fixed biometric deadline, rejection consequence) yet did not decide; the timing of a ministerial submission suggested the petition prompted action.
Respondent's Arguments
- No irrational delay: decision-making involved complex policy, inter-departmental coordination (Department A and Department B), legal uncertainty (awaited judgment in R (RKC 1)) and factual uncertainty on exit routes; these justify the time taken.
- The petition is academic because, even if ordered, the practical objective (attending a VAC before the 240-day deadline) could not be achieved; this is attenuated if the parallel petition's interim relief were maintained.
- Even if delay were unlawful, equitable reasons counsel against ordering immediate decision: interference would prejudice good administration, force ministerial prioritisation, conflict with a decided collaborative approach between Departments A and B, and could prejudice national security and diplomatic interests.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (on the application of K) v SSHD [2014] EWHC 2477 (Admin) |
Example that a delay might be so gross that relief is appropriate. |
The court noted the citation as supporting that a sufficiently gross delay can warrant relief, but assessed whether the delay here reached that threshold. |
| R (Abbasi) v SSFCA [2002] EWCA Civ 1598 |
That a refusal even to consider representations could be unlawful (paragraph 104). |
Used as an analogical example: refusal to consider would justify mandating consideration; court distinguished that here the Respondent had engaged in a decision process. |
| Greenpeace Limited v Advocate General for Scotland [2025] CSOH 10 |
Principles on remedies and equitable discretion (public interest, conduct, practical effect). |
Court treated the case as guidance on discretionary refusal of relief and considered factors such as public interest and conduct when addressing remedies. |
| R (RKC 1) v Secretary of State for the Home Department [now [2026] EWHC 440 (Admin)] |
Relevance to ongoing litigation affecting policy/decision-making (legal uncertainty). |
The pending judgment was a material consideration in departmental caution and timing; the court accepted its relevance to decision-making speed. |
| R (on the application of O) v Secretary of State for the Home Department [2019] EWHC 148 Admin |
Summarised principles on delay reviewability where no established right exists. |
The court relied on these principles (as accepted in subsequent domestic authority) to frame the test for irrational delay. |
| AS v Advocate General for Scotland 2021 SLT 1492 |
Delay unlawful only if resulting from irrational actions/inactions; judicial caution on internal management. |
Cited and followed: court adopted the view that delay may be unlawful if caused by irrational actions/inactions, but courts should not lightly intervene in internal departmental management. |
| R (FH) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin) |
Delay likely irrational only if so excessive as to be manifestly unreasonable; consider whether a rational system produced the delay. |
Court applied the principle that delay must be assessed in context and in light of whether a rational process existed. |
| R (Ullah) v Secretary of State for the Home Department [2022] EWCA Civ 550 |
Delay will be held irrational only where it is manifestly unreasonable. |
The court adopted the "manifestly unreasonable" threshold from Ullah for assessing delay. |
| R v Minister of Defence ex parte Smith [1996] QB 517 |
Courts should be slow to interfere in policy-laden or foreign-relations decisions; give decision-makers particular weight. |
Court emphasised deference in matters involving foreign affairs and policy, applying caution to review of delay. |
| R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289 |
Further authority for judicial restraint in foreign-relations contexts; must show perverse judgment to succeed. |
Court relied on the principle that foreign-relations decisions attract heightened deference when assessing irrationality. |
| R (BEL) v SSFCDA [2025] 4 WLR 103 |
That grant of clearance does not create obligation to provide consular assistance (per Chamberlain J at paragraph 105). |
Cited to support the view that a predetermination or clearance does not compel provision of consular assistance. |
| King v East Ayrshire Council 1998 SC 182 |
Principle that courts should not grant remedies serving no practical purpose. |
Referenced in considering whether granting relief would achieve any practical effect. |
| Eba v Advocate General (2012) SC (UKSC) 1 |
Principles governing court's residual equitable discretion to refuse relief. |
Court applied the framework for exercising discretion to refuse remedies even where unlawfulness is found; considered factors such as public interest and conduct. |
Court's Reasoning and Analysis
The court framed the applicable test: where no established substantive right exists, delay is unlawful only if irrational, ordinarily requiring the delay to be so excessive as to be manifestly unreasonable. The court must consider not only length of delay but whether the delay resulted from irrational actions or inactions by the decision-maker and whether a rational system produced the delay.
The court emphasised deference in policy-laden or foreign-relations contexts and gave weight to the Respondent's account of continuous consideration, inter-departmental coordination (Department A and Department B), factual uncertainty about exit routes, legal uncertainty due to pending litigation (R (RKC 1)), resource pressures from wider regional conflict, and the need to coordinate any positive decision with the Home Department's onward-travel assurances (OTAs) and third-country requirements.
Applying these principles to the evidence (including an affidavit from Attorney Price and a ministerial submission dated 24 March 2026), the court found that the process described was rational. The court rejected the Petitioners' contention that prejudice alone established irrationality, treating prejudice as a relevant but not dispositive factor. The court also found that much of the delay was explicable by legitimate inter-departmental processes and policy considerations and that the timing of the ministerial submission did not render the prior conduct irrational.
The court therefore concluded the delay was not irrational and declined to grant the mandatory relief sought. As the finding on irrationality disposed of the petition, questions whether the petition was academic or whether equitable discretion would bar relief were treated as consequential: the court observed that, had it found irrationality, it would not have considered the petition academic (given the parallel extension) and would have granted relief, but it did not reach that stage substantively.
Holding and Implications
REFUSED
Holding: The petition is refused. The court held that the Respondent's delay in deciding the Petitioners' request for exceptional consular assistance was not unlawful (not irrational) because it resulted from a rational decision-making process involving policy, inter-departmental coordination, legal and factual uncertainty, and operational constraints.
Implications: The direct effect is that the Petitioners do not obtain a declarator of unlawful delay nor an order mandating an individualised decision within the time sought. The court emphasised deference in foreign-relations and policy matters and did not establish a novel principle beyond applying existing authority; no new precedent altering the manifestly unreasonable/irrationality threshold was created. All questions of expenses were reserved.