The High Court has found that a decision to refuse to provide consular assistance to a Palestinian family seeking assistance to leave Gaza to travel to the United Kingdom was unlawful.
The family (a father, mother, and four children, two who are young adults and two minor) have conditional leave to enter the United Kingdom, in order to be reunited with a family member who is a British citizen, living here. However, without the provision of consular assistance, the family are unable to leave Gaza, and are, therefore, unable in practice to enter the United Kingdom.
The Court recorded a number of significant features of the family’s circumstances in Gaza. The family’s home was bombed by Israeli forces in October 2023 (§11). Since that time, the family have been living in a tent, at various locations in Gaza (§11). The family “have very little food and no effective sanitation” (§§1, 12). The father, and two young adult children, “have been fired upon by Israeli forces close to one of the very small number of aid distribution sites” (§§1, 13-14). One of the young adult children “was struck by shrapnel from a tank shall”, and the father was also injured – with neither being able to access proper medical treatment (§§1, 14-15).
The Secretary of State for Foreign, Commonwealth, and Development Affairs refused the family consular assistance in two decisions on 12 March 2025 and 6 June 2025 (the latter following an agreement to reconsider the earlier decision, in light of further developments).
The Court found that there were three errors in the Secretary of State’s approach:
- First, in approaching the question whether the Claimants’ circumstances “exceptional”, the decision-maker failed to consider the “principal factor” which distinguished the Claimants from other persons in Gaza, i.e., that they had conditional leave to enter the United Kingdom (on the basis of a close family connection to a United Kingdom national) (§§115-118).
- Secondly, although the decision-maker purported to consider “how many others were likely to be in the same position as the claimants” (in order to assess the expenditure of “diplomatic capital” involved in providing consular assistance to the Claimants, and those in the same position), the decision-maker made no attempt to assess the size of the relevant group (§§119-122). As the Court noted: “If a decision-maker is concerned that acceding to a request in one case risks opening the floodgates, he or she ought to make some attempt to understand whether what lies behind the gates is really a flood, or only a trickle.” (§120). In fact, the Secretary of State informed the Court in the course of the hearing that the actual number of people in Gaza who have final or conditional leave to enter the United Kingdom is just 38 (§120).
- Thirdly, the decision-maker wrongly treated “Israeli policy” in relation to requests from third states to facilitate the exit of Palestinian citizens from Gaza as irrelevant (§§123-126). The Court considered that, having decided to take account of “the need to preserve diplomatic capital”, it was necessary for the Secretary of State “to confront the question whether extending eligibility to those in the claimants’ position would, in fact, run down the UK’s diplomatic capital and, if so, by how much” (§124). That required an assessment whether “the Israeli authorities were being asked to do something that, other things being equal, they did not wish to do. If facilitating the exit of Palestinian citizens from Gaza accorded with their current policy, then that was relevant in assessing how much diplomatic capital would be expended by assisting them” (§125).
Therefore, the Court concluded that the Secretary of State’s approach was unlawful. The Secretary of State will now take a fresh decision on the Claimants’ request for consular assistance.
Tim Owen KC and Tim James-Matthews acted for the Claimants (together with Ben Bundock, instructed by Jenni Whitaker and Liz Barratt of Bindmans LLP).
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