The challenge to the suspension of the refugee family reunion route, brought by Safe Passage International and three individual claimants (AXY, BSZ and ESH), was dismissed by the High Court in R (on the application of Safe Passage International & Ors) v The Secretary of State for the Home Department [2026] EWHC 1705.
The court applied a low threshold of review to what it characterised as a temporary immigration policy decision affecting thousands of people, and found that the absence of data on the impact on family reunion on local authorities did not make the decision irrational. There was also a significant finding on the Equality Act ground, which means that discrimination challenges to changes to the Immigration Rules may no longer be available at all.
Background
On 1 September 2025 the Home Secretary announced the temporary suspension of Appendix Family Reunion (Sponsors with Protection), the bespoke route which allowed refugees to sponsor their pre-flight partners and children. The stated aim was to relieve pressure on local authorities said to be struggling to accommodate the increasing number of refugee families arriving under the route.
The suspension took effect from 4 September 2025 and was initially expected to last until spring 2026. That deadline has come and gone. In the meantime, applications continue to be diverted to Appendix FM.
Anyone who has ever prepared a family reunion application will know that the difference between the two routes is immense. Appendix Family Reunion had no application fee and no income or accommodation requirements. If leave was granted, it would be on a five-year route to settlement. Under Appendix FM, a spouse and two children face upfront fees and health surcharge costs exceeding £13,900, a minimum income requirement of £29,000, adequate accommodation and an English language requirement. If leave is granted, it has to be renewed every two and a half years.
A newly arrived refugee, or a refugee who has spent years in the asylum system, prohibited from working, is not an obvious candidate to support family members in meeting the requirements of the latter. Most refugee families must instead rely on fee waivers and the ‘exceptional circumstances’ provisions, which lead to leave on a ten-year route to settlement, usually with no recourse to public funds.
Grounds of challenge
The claimants challenged the suspension on various grounds. The core ground was irrationality: diverting refugees to a route which contains requirements they cannot meet achieves nothing except delay and disadvantage. From the evidence presented at hearing, the Home Secretary made the decision without any meaningful data measuring the impact of family reunion on local authorities, against internal warnings that it could encourage dangerous small boat crossings, and without assessing whether the suspension would in fact relieve the claimed pressure.
Central to the irrationality ground was the decision in R (Asylum Aid) v Secretary of State for the Home Department [2025] EWHC 316, in which the High Court quashed rules requiring the family members of stateless people (a directly comparable cohort) to apply under Appendix FM. The background to the Asylum Aid challenge can be found here.
The claimants argued that the same logic applied with equal force to refugees. Since refugee families cannot, by definition, enjoy family life in their country of origin, the overwhelming majority will satisfy the exceptional circumstances test. Diverting them into Appendix FM achieves nothing except barriers and delays to reunification. AXY and BSZ argued that the contemporaneous documents showed a decision-maker constructing a case for an announcement she had already decided to make.
The remaining grounds alleged breaches of the section 55 children’s duty, the public sector equality duty, Articles 8 and 14 of the European Convention on Human Rights, and indirect disability discrimination under the Equality Act 2010.
Late disclosure and new decision
In March 2026, officials advised the Home Secretary that far fewer refugees than expected had applied under Appendix FM, the backlog had barely moved, and the suspension had ‘not yet translated into the desired sustained reduction’ in pressure on local authorities. None of this appeared in the Home Office’s witness statement filed ten days later.
Then, a week before the hearing, the Home Secretary took a fresh decision to continue the suspension. The judge noted that this decision ‘effectively superseded’ the very decision under challenge. It was disclosed two days before the hearing, and although this was characterised as being disclosed purely under the duty of candour, the Home Secretary then placed substantive reliance on it. This forced the parties into written submissions after the hearing had ended.
Decision to suspend was not irrational
The court declined to apply anxious scrutiny. Mr Justice Coppel found that the decision to suspend Appendix Family Reunion attracted a particularly high degree of deference to the Home Secretary’s judgment. It was immigration policy, involving the allocation of scarce public resources, affecting thousands of people rather than a single individual, implemented through rules laid before Parliament, and required the weighing of factors that cannot be directly compared. Drawing on the Court of Appeal in R (DM) v Secretary of State for the Home Department [2025] EWCA Civ 1273, he held that the least intensive standard of review applied and the threshold for irrationality was correspondingly very high.
At the same time, Asylum Aid was distinguished on three bases. First, when the suspension decision was taken there was no equivalent of the advice that proved fatal in Asylum Aid that most dependants would in any event be granted under Article 8. The advice to the Home Secretary in June 2025 was that it was extremely difficult to assess how many applications would succeed under Article 8. Firmer advice, that a grant was ‘likely’ for those who could not meet Appendix FM, came only in the March 2026 ministerial submission, months after the decision under challenge.
Second, and more significantly for the judge, the suspension was temporary, pending reform of the wider family migration framework, whereas the statelessness route in Asylum Aid was closed permanently. Third, the local authority pressure rationale had no counterpart in Asylum Aid.
On process irrationality, the court held that the absence of any data measuring the impact of visa grants on local authorities did not matter; it was rational to act on council reports and ‘logic and common sense’ rather than commission research and wait, given the urgency and the temporary nature of the measure.
Section 55 duty: unimpressive but lawful
On the children’s duty in section 55, the court noted that although unimpressive, the Home Secretary’s assessment of the impact of the suspension on relevant children met the essential requirements and as such complied with her duties. It was not found to be unlawful, despite the assessment being brief, failing to identify the correct cohort, and not engaging with the potential harms to children of delayed reunion.
Equality Act does not apply to changes to the Immigration Rules
The most far-reaching finding was on the Equality Act, on a point the court raised itself after the hearing. It had generally been assumed that a change to the Immigration Rules can be challenged as discriminatory under section 29(6) of the Equality Act 2010, and that the first limb of the public sector equality duty (due regard to the need to eliminate unlawful discrimination) applies to the decision to make it. Mr Justice Coppel held that neither is true.
If section 29 does not apply, ESH’s indirect disability discrimination claim could not get off the ground. A rule change therefore cannot amount to discrimination ‘prohibited by or under’ the Act, so the first limb of the equality duty had nothing to bite on, and the Home Secretary was under no duty to consider whether the suspension would discriminate. This was despite her own equality impact assessment being devoted almost entirely to that question. Only the residual limbs of the duty survived, and even those exclude nationality, age and religion in the immigration context.
The judge acknowledged that a line of cases, including Asylum Aid itself, had proceeded on the opposite assumption. If his analysis stands, no discrimination challenge under section 29(6) can be brought against a change to the Immigration Rules, and equality impact assessments of rule changes need only address the residual limbs of the duty.
Convention grounds
On Article 14, the court found that the discrimination that arose from the diversion of applications to Appendix FM required justification, and it was, within a broad margin of appreciation and the temporary status of the suspension. The freestanding Article 8 ground added nothing to Article 14.
Where to now for refugee families?
Whatever the outcome of any appeal, the direction of travel is clear. Under the ‘core protection’ model in force since 2 March 2026, there is no automatic right to family reunion at all. A refugee will be able to sponsor family only after moving onto a work and study route and meeting financial and integration requirements ‘in line with those expected of British citizens’.
Ministers are considering a contribution requirement and a qualifying residence period, drawing on the Danish model. The suspension was announced as temporary, pending a review expected to conclude by spring 2026. That date has passed. What the review now appears likely to deliver is not the restoration of a bespoke route but its permanent replacement with something likely to resemble Appendix FM, the very outcome this litigation warned against.Â