During judicial review proceedings it has been disclosed that around 80 children were evacuated from Afghanistan and separated from their families and a new route is to be put in place to facilitate the reunion of these families shortly. The case is R (HR & Ors) v Secretary of State for the Home Department [2024] EWHC 786 (Admin). The judicial review was ultimately unsuccessful but the Home Secretary was yet again criticised for breaching the duty of candour.

Background

There are three claimants in this case, sisters who are Afghan nationals and who were evacuated from Afghanistan in August 2021 during Operation Pitting. Two of them are minors, aged 17 and 15. All of the family tried to be evacuated, but only the daughters succeeded. Their parents and two brothers were interested parties in the litigation. The Home Secretary was unable to provide a reason for the claimants’ evacuation, as they were not in one of the prioritised groups.

The claimants were granted indefinite leave to remain and eventually issued with biometric residence permits stating that they had been granted their leave under the Afghan Citizens Resettlement Scheme. On 21 December 2022 the claimants’ solicitors asked the Home Secretary for a grant of leave outside the rules to be made to the rest of the family in Afghanistan. A pre action letter was sent on 8 March 2023 in respect of the delay in responding to that request.

On 4 April 2023 a response to the pre action letter was sent stating that the Home Office was unable to find a record of an entry clearance application being made. On 2 May 2023 the claimants’ solicitors replied stating that that it was Wednesbury unreasonable and unlawful to require the family to apply for entry clearance on the form and using the immigration rules that most closely matched their circumstances.

The judicial review application was lodged and on 5 July 2023 the High Court ordered that a rolled-up hearing take place. Following receipt of the detailed grounds of defence, the claimants’ solicitors made a formal request for certain information including the number of children separated from their parents during the Operation Pitting evacuations. The response to that was that the Home Office does not hold the data.

When asked how many such cases had been brought to the government’s attention and had asked for assistance with family reunification, the response was that the question was ambiguous because it referred to the government instead of the Home Office. Again, it was said that the Home Office does not hold this data.

On 16 August 2023 the claimants were moved from a hotel into local authority accommodation.

On 21 September 2023 a Ministerial Submission was sent to the Home Secretary, recommending that a route was set up for the parents of children under 18 who were evacuated in Operation Pitting to come to the UK. This was accepted by the Home Secretary on 11 October 2023. The details have not yet been finalised but the intention is to start taking referrals in the first half of 2024.

On 27 October 2023 the claimants solicitors were notified of this new route and that timescales were due to the need for safeguarding.

The judicial review hearing took place on 7 and 8 November 2023. Following a request by the judge, the Ministerial Submission was disclosed on the second day of the hearing. The Home Secretary then notified the court and claimants that there was further material that had to be disclosed under the duty of candour but that could only be done in closed proceedings. An adjournment was requested and the Home Secretary then made a successful application to allow disclosure in closed proceedings.

On 27 November 2023 the judge made an order for a witness statement to be filed explaining why the Ministerial Submission had not been disclosed earlier, when the government legal department had become aware of it and the data on the number of affected children that had been requested by the claimants earlier.

 On 4 December 2023 a witness statement was filed stating that the Refugee Resettlement and Integration Unit were aware of around 80 children who were evacuated and separated from their family.

Further witness statements were filed on 19 December 2023, including from the solicitor with conduct at the government legal department. The adjourned hearing took place on 5 March 2024 and the closed hearing took place on 6 March 2024.

The judgment

The main ground of challenge was that it was irrational for the Home Secretary to insist that an application must be made for leave outside the rules, rather than providing bespoke assistance to facilitate the family’s reunion. By the time of the hearing this argument was focussed on the Ministerial Submission which had explicitly not recommended the option that parental reunification was permitted only through existing routes.

The claimants’ parents were in hiding in Afghanistan and would be unlikely to be able to meet any fee waiver requirements and would also struggle under Appendix FM. It was argued that there was no route which came close to the circumstances of the family in Afghanistan and it was irrational to require them to submit an application form. The claimants said that this position was supported by the Ministerial Submission.

The High Court rejected this argument, stating:

the claimants have not shown that the existing approach is so deficient as to be irrational. On the contrary, the Ministerial Submission and the defendant’s decision of 11 October 2023 constitute a good example of how an administrative system responds to events. Where the number or nature of cases having special or exceptional features is recognised to warrant it, those cases are made the subject of their own new rules-based criteria, rather than having to be dealt with as exceptions to existing rules.

This ground was therefore rejected on the basis that the claimants “had and have” a suitable alternative remedy. Other grounds of challenge including those based on the best interests of the child, legitimate expectation and delay in implementing the new scheme were also dismissed.

Duty of candour

Lane J said that he is in “no doubt that the defendant breached the duty of candour in not disclosing the figure of around 80 children” when first asked by the claimants’ solicitors. In relation to the Ministerial Submission, the judge also held that the failure to disclose this before the hearing in November 2023 amounted to a breach of the duty of candour.

Conclusion

This is an incredibly depressing read, the affected children both here and in Afghanistan are suffering variously with depression and/or post-traumatic stress disorder, with no indication as to when they may finally be reunited. In a few months’ time they will have been separated for three years with no indication of how much longer they will have to wait. It is very difficult to understand what purpose is served by any of this.