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This post is a wrap up of recent Afghan evacuation litigation in the High Court and Court of Appeal covering the cases of:

  1. S & AZ v Secretary of State for the Home Department [2022] EWCA Civ 1092
  2. SH v Secretary of State for the Home Department [2022] EWHC 1937 (Admin)
  3. JZ v Secretary of State for the Home Department [2022] EWHC 2156 (Admin)

A lot of the issues cross-over so rather than give you a detailed breakdown of each case, I’ll explore the Court of Appeal’s decision in S & AZ first since it’s the most useful and then finish with a quick look at the other two cases from the High Court which were fact-dependant. 

S & AZ in the Court of Appeal

We’ve covered the High Court judgment in this case previously on the blog in which it was found unlawful for the Home Office to refuse to consider a request for Leave Outside the Rules (LOTR) when it was made together with a request for permission to enter under the Afghan Relocations and Assistance Policy (ARAP). This was in the context of the Ministry of Defence having to sift ARAP requests and not wanting to have to then sift out the LOTR applications. Their solution, which the High Court found unlawful, was to refuse to consider the LOTR application and insist it was made on a separate application form which most closely matched their circumstances (“the ARAP application basis”). 

The primary problem this created was that the LOTR application forms were completely unsuitable and asked questions which were not easily answerable. If applicants were to answer these inaccurately, they might be at risk of mandatory refusal. The secondary problem was that the LOTR application form didn’t allow a request for a waiver or deferral of biometrics (something which has since been changed) (“the biometric basis”). 

Dissatisfied, the Home Office appealed. The Court of Appeal essentially endorses the main part of Lang J’s “impressive” judgment that it was irrational to refuse to consider the LOTR applications made alongside the ARAP requests on the biometric basis but on the ARAP application basis. However, there is a slight divergence in the conclusions. 

The ARAP application basis

The Court of Appeal acknowledged that the Home Office had a discretion to grant leave to enter in circumstances which were not set out in the Immigration Rules. The LOTR policy said that:

Applicants overseas must apply on the application form for the route which most closely matches their circumstances and pay the relevant fees and charges.

The phrase “the application form” was hyperlinked to the “Applying for a visa to come to the UK” page on the gov.uk website from which an applicant can be taken to a visa application form for each of the standard routes. 

The court didn’t like the idea of calling the ARAP form a “visa application form” since it was not suited to deal with the types of issues which could form the basis of a LOTR application. If the ARAP online gateway was not a visa application form at all, since the request for LOTR had been made in that same request, technically no visa application had been submitted. Therefore, the risk of being refused for misleading the Home Office by not answering certain questions never arose if there had never been an application in the first place. 

The biometric basis

The Court of Appeal was more receptive to the arguments on the biometric basis. In the High Court, the Home Office argued that if an applicant could not enrol their biometric, they could potentially make a false entry on the form by naming a Visa Application Centre (when they knew they could not enrol biometrics there) and then separately contact the Home Office to tell them of the issues in enrolling biometrics.  The High Court didn’t buy the Home Office’s assurances that they would not prejudice any application made on that basis. 

Although the Court of Appeal didn’t like the fact that an applicant was basically being forced to say something untrue on their application, they considered whether the assurance might have actually been enough. Ultimately, they sided with the High Court and acknowledged the uncertainty an applicant would be in:

I can see why an applicant might be less than confident that they would suffer no ill consequences from following the worksround [sic], whatever assurances were made.  It is in the nature of institutional decision-making that different officials, possibly in different countries, may not when making a particular decision be aware of what has been said by colleagues in different contexts and on a different occasion. 

Thankfully, the Home Office have since amended the LOTR application form to include the possibility of obtaining a waiver or deferral to provide biometrics. 

SH in the High Court

This High Court judgment was issued after Lang J’s judgment in S & AZ but before the Court of Appeal had issued their judgment. The case also concerned Afghan judges who had applied under ARAP and alternatively for LOTR. The Home Office had refused to acknowledge a LOTR application on the basis that the ARAP form was not a visa application form. 

The High Court’s decision was short-circuited because of the judgment by Lang J. The Home Office tried to draw two distinctions between SH’s case and the S & AZ which were:

  1. The ARAP scheme was not the route to entry most closely matched to SH’s circumstances since he had a brother-in-law in the UK and could have applied under either the family reunion of family migration routes; and 
  2. The application for LOTR was not actually made at the same time as the ARAP request.

On the first point, the court gently pointed out that SH was not seeking leave to be reunited with his family in the UK but because he had a fear of the Taliban. Lawyers for SH also explained that the family reunion route was completely inappropriate since it was intended for those had been given asylum in the UK to be reunited with their families. The brother-in-law was a British Citizen and not a refugee and so the family reunion route didn’t pan out. In addition, since their relationship was not one of dependency (remember Kugathas?), there was no family migration route open to SH. 

The second distinction was also swiftly dealt with. In S & AZ, one of the applicants had similarly not made the ARAP request and LOTR application at the same time and so a difference in timings made no difference. The judge noted:

…even if the timings of the applications made by the Claimant were to be seen as different from those made by the claimants in those cases that would not be a material distinction. Both there and in this case the First Defendant was being asked to treat the ARAP application and the correspondence as an application for LOTR. Both there and here she refused to do so by reason of the view she took of the nature of the ARAP application. Whether the application for LOTR was made at the same time as the ARAP application was submitted or subsequently is not material.

The judge ended up quashing the Home Office’s refusal to treat SH as having made an application for LOTR and like in S & AZ, the Home Office will need to actually make a decision as to whether or not LOTR will be granted. 

Mr Justice Eyre refused to direct the Home Office to grant the LOTR application and reiterated the well-established public law position that the court will only interfere in the decision-making process and not the substance of the decision itself since judicial review is not a review of the merits of a case. It was not axiomatic that SH would be granted LOTR just because the Home Office now had to consider it. If SH was eventually refused LOTR, it could be subject to a further challenge. 

JZ in the High Court

The claimant in JZ was not as lucky as the others. The judgment of the High Court is lengthy but the upshot is that the facts of JZ’s case meant the various branches of the UK government involved in the case were entitled to refuse JZ’s request for permission under ARAP. 

JZ, like the others, had made an application for LOTR which had also been refused but that was being challenged separately and this judgment only dealt with the judicial review against the ARAP decision.

JZ’s ARAP challenge was brought on the basis that he was being treated differently to other Afghan judges who had already been granted permission to enter. Between 2008 and 2011, he was a first instance judge assigned to hearing terrorism cases at an Afghan air force base and a prison in Kabul. From 2011 onwards, he sat as an appeal court judge in Kabul. His family were currently in hiding and he alleged that most of the Taliban fighters sentenced by him have been released from prison, re-joined the Taliban and he was now being actively sought out. He had been receiving death threats since 2014. His cousin, another appeal court judge, had already been assassinated in January 2020. The Home Office had conceded that his life was at risk because of his judicial work. 

After making a request to be considered under the ARAP route, the Home Office had refused to grant JZ permission to enter on the basis that he had not worked alongside the UK Government and there was no evidence that he faced an increased risk because of engagement with the UK. The Home Office’s position was that to qualify under ARAP, an applicant had to show a “meaningful enabling role alongside [the UK Government]”. JZ’s argument that he had contributed to the UK mission by protecting the UK from terrorism was not accepted. 

After JZ had issued his claim for judicial review, he sought a reconsideration which was supported by Lord Carlile and Lord Anderson, former Independent Reviewers of Terrorism Legislation who said they regarded it as “incontestable” that the trial, conviction and sentencing (which JZ helped with) of insurgents captured on the battlefield by UK forces made a material contribution to the UK’s mission in Afghanistan and that the UK’s operations would have been adversely affected without that work.

The main thrust of the argument was that he had been treated inconsistently with other judges who were in a similar position to him and the difference in treatment was irrational. The Home Office pointed out that the judges who had been granted permission under ARAP had worked at courts which the UK Government had directly supported or worked closely with. JZ’s work in hearing terrorism cases at first instance ended in 2011 whereas all the other judges who had been successful under ARAP in the Anti-Terrorism Court in Afghanistan had served after 2015 and all of the 11 judges who had succeeded under ARAP were actively serving in the Anti-Terrorism Court in Kabul in 2020 – 2021.

The High Court reiterated that simply being an Afghan judge was not enough to establish eligibility under ARAP and it all depended on a case-specific evaluation. The question was whether the judge had a sufficient link with the UK Government in accordance with the ARAP policy. 

Mrs Justice Hill found that one of the distinctions in JZ’s case was that the UK Government only became involved in supporting the Anti-Terrorism Court and building partnerships with those judges there after 2015, which was after JZ had stopped serving there. JZ’s position was that he had attended seminars organised by the UK Government but the court said it was not unlawful to say that the evidence didn’t prove whether JZ “worked alongside” the UK Government. The sort of factors which might be considered in an ARAP application included:

  • The extent to which the judge was publicly known to have co-operated with the UK
  • Whether the judge had been involved in highly sensitive cases of particular UK interest
  • Whether UK Government representatives had attended their hearings
  • Whether they had been involved in a series of events by the UK Government to discuss matters of professional development, and to debate interpretation on points of law and some of the technical aspects of considering different forms of evidence in complex trials. 

Although there was a general duty that “all persons in a similar position should be treated similarly”, there was sufficient distinguishing factors between JZ and the other judges who had succeeded under ARAP to refuse JZ.  

This case provides a sad reminder that even where the lives of Afghan judges might be at risk due to their judicial role, a full assessment will still be carried to consider whether they are sufficiently connected to UK Government work before they succeed under ARAP.

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Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.