Outer House refuses petition by Palestinian family asserting irrationality in delay to consular assistance decision

About this case:

• Citation:
  [2026] CSOH 41
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Petitioners A and B made the request for assistance, on which no decision had yet been made, on 6 October 2025. The first petitioner’s husband, C, previously made a successful protection claim in the UK and now resided in Glasgow. The petitioners sought declarator that the respondent’s ongoing failure to decide their application was unlawful due to irrationality, and secondly an order ad factum praestandum ordaining them to produce a decision by 25 March 2026.

The petition was considered by Lord Braid, with Shabbir, advocate, appearing for the petitioner and Pirie KC and Breen, advocate, for the respondent.

Fixed biometric deadline

The petitioners had previously submitted an application under the Family Reunion Scheme to join C in Scotland, however immigration rules required that biometrics be taken before a decision on their immigration application system. Due to the closure of the Visa Application Centre in Gaza in October 2023 in light of the ongoing conflict, the closest VAC to the petitioners was located in the Kingdom of Jordan. Under Home Office policy, individuals may ask to be excused from travelling to a VAC before travel to the UK because the journey would be unsafe or have their application predetermined subject to travelling to a VAC within 240 days, and in accordance with that policy the petitioners were issued with predetermination letters.

On 6 October 2025, the petitioners requested consular assistance in accordance with the Extended Eligibility Criteria adopted by the respondent in December 2023 in connection with hostilities in Gaza. Further information was requested from the petitioners, which was provided on 19 October 2025, and on 9 December the respondent told the petitioners that their applications were still under consideration and that the Foreign Office would inform them of their decision “as soon as we are able”.

Additional communications to that effect were sent on 23 January and 26 February 2026, but as of the date of the hearing no decision had been reached on the petitioners’ request. The 240-day period to attend a VAC was due to expire in the petitioners’ case on 31 March 2026, however this was extended by interim order of the court in a parallel petition.

For the petitioners it was submitted that they had suffered substantial prejudice through the respondent’s failure to make an earlier decision, including losing an opportunity to leave Gaza when exit routes remained open. The respondent had known from the outset that there was a fixed biometric deadline, and they would be unable to leave Gaza without assistance.

Senior counsel for the respondent submitted that the Minister had now had a reasonable amount of time to consider the application, thus as presented the application now had an air of unreality. The grant of predetermination did not give rise to any obligation to provide assistance, and the grant of an order would require the respondent to prioritise the petitioners ahead of others in the same position as them.

A matter of policy

In his decision, Lord Braid said of the irrationality challenge: “Although a decision whether to grant consular assistance does not involve the making of foreign policy, it cannot be denied that it at least involves matters of policy, foreign affairs and national security. In particular, I observe that much of the delay has been caused by the collaboration between ministers of the Foreign Office and the Home Office, and the apparent agreement between them that any decision to provide consular assistance should be reached jointly. That is very much a matter of policy; and it is not for the court to tell the government that that approach is wrong or irrational.”

He added: “The petitioners have not identified the date when the failure to take a decision first became manifestly unreasonable. They have not shown that the delay in taking a decision by that date has led to their being unable to exit Gaza when they would otherwise have been able to do so. The difficulties in leaving Gaza are a contributing factor to the cause of the delay, rather than a product of the delay. As it has transpired by reason of the interim orders granted in the parallel judicial review, the biometrics deadline has, in practice, proved not to be immutable anyway; and so the delay has not had the effect of determining the petitioners’ request.”

Considering whether the application was academic, Lord Braid said: “Whether the petition is academic is itself an academic question. However, for completeness, if I had found the ongoing delay to be irrational, I would not have considered the petition to be academic. The interim orders granted in the parallel petition on 30 March 2026 include an order that the SSHD must treat the biometric enrolment period as extended by a further 240 days and must not take any steps to invalidate or reject the petitioners’ applications for Family Reunion leave to enter the UK during that extended period.”

He concluded: “Accordingly, in the event that the delay had been found to be irrational, there would have been benefit to the petitioners in securing a declarator to that effect and an order requiring the respondent to issue a decision, in order that a decision, if positive, would be reached in sufficient time for it to be implemented.”

Having ruled that the petitioners were not entitled to the orders sought, the petition was accordingly refused.