Afghan family to have application decided a sixth time after unfair refusal

A fifth decision on the same application made under the Afghan Relocations and Assistance Policy has just been quashed on the grounds of unfairness, meaning that a sixth decision will now need to be made. The Foreign Secretary unsuccessfully tried to conceal the names of the civil servants involved.

Once those names were revealed it became apparent that decisions were being reconsidered, remade and refused, often by some of the same panel members who had been involved in previous refusals. The case is R (QA) v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 3064 (Admin).

Background

QA worked with the Ministry of Defence and the Foreign, Commonwealth and Development Office in Afghanistan. In 2015 he and his immediate family were resettled in the UK under the Afghanistan Locally Employed Staff Ex-Gratia Scheme.

On 24 November 2021 QA applied under the Afghan Relocations and Assistance Policy for 15 members of his extended family who were still in Afghanistan, to join him in the UK. QA provided “extensive evidence that they were at high and immediate risk from the Taliban”. QA attributed that risk to his role in assisting the UK in Afghanistan.

On 24 December 2021 the application was refused by a panel who had not been provided with all of the evidence. A second panel refused the application on 10 January 2022.

A first judicial review was withdrawn when it was agreed that QA could ask the Secretary of State to review the decision. Again, further extensive evidence was provided including a letter of support from the former Foreign and Commonwealth Office Head of Mission. The application was refused a third time on 8 June 2022.

QA sought judicial review of the refusal and permission was granted on 24 August 2023. A witness statement from the Head of the Resettlement Department within the Afghanistan and Pakistan Directorate was filed by the Secretary of State. The witness gave the “strong impression” that she was not part of the decision making panel, the court noting that she “describes the panel, and the process, as if she had not been part of it, and as if she were an independent expert commentator on the decision that they had made”.

QA’s solicitors asked for the panel minutes and some other documents to be disclosed on 15 November 2023. After chasing did not yield results an application for disclosure was made on 19 December 2023. The Secretary of State initially tried to redact the names of the panel members for each of the decisions, but following a Court of Appeal decision on this point the position was no longer sustainable.

On 1 March 2024 the Secretary of State decided to undertake another review of QA’s application and asked QA 43 questions. The substantive judicial review was due to take place on 12 March 2024 but was vacated as the Secretary of State indicated that a new decision would be made and would supersede the decision under challenge.

On 5 March 2024 a response was provide by QA to the 43 questions and a fourth refusal was issued on 11 March 2024. The grounds for judicial review were amended to challenge the new decision.

On 5 April 2024 QA’s solicitors wrote to the Secretary of State’s lawyers expressing concern over the approach to disclosure and the duty of candour, including the impression given by the witness that she had not formed part of the panel for the third decision whereas disclosure had revealed that she was on the panel. On 16 April 2024 the Secretary of State agreed to reconsider QA’s case.

On 22 April 2024 the panel refused the application for a fifth time. One panel member had raised the issue that he had been on one of the previous panels that had refused but the chair said that there was a finite number of panel members and that a degree of pragmatism was needed. The Head of the Resettlement Department within the Afghanistan and Pakistan Directorate also sat on the panel again.

On 9 May 2024 QA’s solicitor provided a detailed witness statement setting out the chronology and issues relating to disclosure and other concerns. Documents had been edited rather than being redacted and multiple versions of the same document had been provided. Concerns about the witness evidence were reiterated. The witness then provided another witness statement on 20 May 2024 which, quite remarkably, again failed to mention her involvement in earlier decision making and did not address the misleading nature of her earlier statement.

The High Court’s decision

The fifth decision was the subject of this judgment. The grounds were that the decision failed to take relevant matters into account and the conclusion was not reasonably open to the panel, and that the decision was unfair on grounds of apparent bias and/or predetermination.

The court considered the second ground of unfairness/bias/predetermination first. While acknowledging that the panel members were experienced and had expertise in these decisions, the court said that there had been “unwarranted secrecy about the identity of the panel members, which is inimical to open government and which fuels suspicion”. It was also said that the “Secretary of State gave the impression that reviews were being conducted by newly constituted panels and sought to make a virtue of this”.

Of the panel that took the fifth decision, one member was the person who had provided the criticised witness statement and there were concerns the “clear and firm view” she had expressed on QA’s application in a statement that was intended to only provide a chronology raised the possibility of predetermination. Another person was part of the panel that took the first and second decisions and a third person had been on the panel for the fourth decision.

Importantly, the court noted that “The identity of the panel members was only disclosed as a result of QA’s solicitor’s dogged pursuit of a disclosure application to require the Secretary of State to comply with the requirements set out by Swift J and the Court of Appeal in IAB.” It was concluded that “the constellation of features that I have identified demonstrates unfairness in the decision-making process” and that QA had been deprived of a fair decision.

The fifth refusal was quashed on that basis. Given that decision, the court did not consider it appropriate to also decide the first ground of challenge on the basis that it may influence the sixth decision.

Conclusion

Looking at this family’s attempt to use the so called “safe and legal” routes available, that has so far lasted three years and counting without a legally sustainable decision, it is really any surprise that some people instead resort to more dangerous journeys?

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