Separated Afghan family lose judicial review as ex-wife deemed not to be an “additional family member”

An Afghan family who were separated when the father and son ended up in the UK and the mother (divorced from the father) ended up in the US have lost their judicial review challenging refusal under the Afghan Relocations Assistance Policy. The case is HS & Anor, R (On the Application Of) v Secretary of State for Foreign, Commonwealth & Development Affairs [2024] EWHC 3197 (Admin).

HS and ZN are Aghan nationals who married in 2007, had a child (D), and divorced in 2018. HS has since remarried and has another child with his second wife. HS worked at the British Embassy in Kabul and was eligible for relocation under the Afghan Relocations and Assistance Policy and he applied for himself, his second wife and his two children.

ZN was not included in the application, which was granted in May 2021. ZN was evacuated by the United States in September 2021 and has since been granted a green card to live there. The separation of ZN and D has been difficult for both of them and at the date of the hearing D was with his mother in the US, having extended a visit that started in the school summer holidays.

HS applied for leave outside the rules for ZN to join them in August 2021, this was refused on 4 May 2022 and that decision upheld on reconsideration on 14 October 2022. The application was refused on the grounds that ZN was not eligible for leave outside the rules under ARAP as an additional family member but she could apply to join D via other routes in the immigration rules. HS and ZN sought judicial review of the refusal on the grounds that “additional family member” was being construed too narrowly.

The court said that:

There was nothing within the policy that applied at the time of the relevant decisions to expressly exclude an ex-spouse or indeed an additional partner. ARAP applications within the Immigration Rules could only include one partner but this policy concerned applications outside the rules. Unlike the position today (under the Immigration Rules as amended), there was nothing stating that an additional partner could not be an additional family member. Therefore, the fact that ZN was HS’s ex-spouse was not decisive.

However, the court concluded that on the facts of this case “The evidence did not support a continuing family relationship between HS and ZN and it would have been stretching reality to describe ZN as HS’s family member after the dissolution of their marriage.”

Although unsuccessful here, hopefully the family will be able to reunite in the UK through using other routes.

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