R (on the application of AFA and others) (Appellants) v Secretary of State for the Home Department and another (Respondents)

Case summary

Case ID

UKSC/2026/0016

Parties

Appellant(s)

AFA and another

Respondent(s)

(1) Secretary of State for Defence (2) Secretary of State for the Home Department

Issue

Was the Afghan Relocation Route policy an unlawful fettering of discretion of a statutory power provided by the UK General Data Protection Regulation (UK GDPR), or was the policy issued in the exercise of prerogative powers?

Facts

This concerns two linked appeals by Afghan nationals who had applied for relocation to the UK under the Afghan Relocations and Assistance Programme (“ARAP”). This scheme allowed eligible Afghan citizens who worked for or with the UK Government in Afghanistan to apply for resettlement in the UK, following the return of the Taliban to power in Afghanistan in 2021. The appellants have both had their ARAP applications refused, and their appeals against those decisions were dismissed. Those decisions are not the subject of the present proceedings. These appeals arise out of an inadvertent Ministry of Defence (“MOD”) data breach which resulted in the leaking of significant personal details of thousands of individuals who had applied for resettlement under the ARAP scheme in February 2022 (“the data incident”). The MOD became aware of the data incident in August 2023 and applied for and were granted an urgent injunction to prevent publication of the data incident, given the risk to life of the individuals whose data had been leaked. The details of AFA and QP1, the appellants in these linked appeals, were leaked in the data incident. On 19 December 2023, in response to the data incident, the MOD established a new route to the UK for individuals affected by the data incident known as the Afghan Relocation Route (“ARR”). The ARR policy has not been made public. The MOD considered the appellants’ respective cases under this policy. The refusals were on the basis that the appellants were not eligible for relocation because they had not performed any of the specific roles in the MOD’s list of high-profile roles, nor had they performed a role considered of equivalent risk. The appellants were not aware of the decision at the time. The refusal to offer assistance was communicated to Special Advocates (who represented the appellants’ interests) in CLOSED correspondence. The Special Advocates applied for judicial review against the decisions on behalf of the respective appellants. It was argued that the respondents had fettered their discretion by applying the policy without consideration of the AFA or QP1’s respective individual risk. Both claims for judicial review were dismissed in CLOSED proceedings. AFA and QP1’s appeals against those decisions were heard together by the Court of Appeal in a CLOSED hearing. The Court of Appeal dismissed their appeals on all grounds. The Court of Appeal found that the ARR policy adopted by the respondents was not irrational. The Court of Appeal also found that the respondents were exercising a prerogative power in formulating and applying the policy, rather than a statutory discretion, therefore the doctrine of fettering of discretion did not apply. The appellants and their representatives were not aware of the proceedings until the Court of Appeal judgment in these proceedings was published in OPEN on 24 October 2025. The appellants now appeal to the Supreme Court, represented by their OPEN representatives. The appellants raise new grounds of appeal before the Supreme Court, which were not argued before the lower courts. They argue that the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 provide remedies in this area, which governed the responses available to the respondents. As such, the appellants argue that the prerogative power was excluded and the respondents were not permitted to formulate and apply the policy without consideration of the appellants’ individual circumstances in the manner that they did.

Date of issue

12 February 2026

Case origin

PTA

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