The High Court has confirmed that the restrictive parameters of the Afghan Citizens Resettlement Scheme put in place in January 2022 do not stray from the intention of the policy as it was originally announced in September 2021. R (GA) v Secretary of State for the Home Department and Ors [2023] EWHC 871 (Admin) also highlights the type and number of individuals being left out of legitimate routes to the UK.

Background

GA is an Afghan national living in hiding because she is a former employee of the Afghan Ministry of Justice who drafted criminal and family legislation; a lawyer who has defended women and prosecuted men in cases related to violence against women and has acted as a trial observer in terrorism trials; a women’s rights activists; and closely related to two individuals who were employed by the US military to protect their personnel.

Grounds of Challenge

GA challenges the operation and implementation of the Afghan Citizens Resettlement Scheme (ACRS). She questions whether in their operation of ACRS the defendants unlawfully and/or irrationally frustrate the purpose of the policy because of the restrictions placed on the cohorts of people that will be considered for the scheme, which differs from the policy as originally announced.

GA suggests that the scheme’s operation therefore also breaches her legitimate expectation of being able to access and be considered for eligibility under the scheme within a reasonable timescale relative to risk.

The policies

In April 2021 the government put in place the Afghan Relocations and Assistance Policy (ARAP) for those who worked for or with UK authorities in roles which exposed them to threats.

The Taliban took control of Afghanistan in August 2021. On 6 September 2021 the government published guidance which referred to the intention of the policy. And on 13 September two detailed documents set out the policy in detail; the Afghan resettlement and immigration policy statement and the Afghan citizens resettlement scheme. It is the policy in these two documents that GA alleges has not been properly implemented, and from which she claims there has been an unlawful departure.

The ARAP was incorporated into the immigration rules in April 2021. GA made an application under ARAP in October 2021 which was later reframed as an application for leave outside the rules. That application remains outstanding, together with a request to waive or defer the requirement for her to attend a biometrics appointment.

ACRS was formally launched in January 2022 and an updated statement was issued on the Government’s website detailing the three referral pathways. GA contends that these pathways, and particularly the parameters of pathway 3, place restrictions on eligibility which are unlawful and inconsistent with the policy statements published in September 2021. This judicial review claim was issued in February 2022.

You can find confirmation of the guidance published at the times in paragraphs 11 to 20 of the judgment.  

Legitimate expectation

GA argued that the policy statements from September 2021 onwards contained “clear and unambiguous assurances regarding eligibility and prioritisation of women, of those who stood up for the rule of law, democracy, women’s rights and the freedom of speech and of those who remain in Afghanistan and the region”. It thereby gave rise to a legitimate expectation that individuals like GA would at least be considered for eligibility once ACRS became operational. But this was not the case.

In its first year of operation, pathway 3 is restricted to individuals most associated with the UK including, the British Council, GardaWorld contractors, and Chevening alumni. It was unfair for the defendant to move away from earlier representations by framing the pathways in restrictive terms.

But the September 2021 documents recognised that the scheme would be over-subscribed, meaning that no individual could be guaranteed a place. From the decision to create a referral process rather than an application process, it was clear that nobody would have a right to make an application. It was also repeatedly stated that there would be a focus on those that had directly assisted the UK or its international partners in Afghanistan. The court confirmed that GA does not fit that description:

“…so closely that she could expect, with confidence rather than just hope, to benefit from the scheme. That does not mean that she is not in great danger. Nor am I questioning her contribution to the democratic values which the UK and its partners sought to uphold in Afghanistan. However, whilst her contribution identifies her as one of those who “may” be included in the pathway 3 cohort, the policy documents simply did not state that she, or others like her, would definitely be included or included from the start.”

GA therefore failed to establish a legitimate expectation to be included.

Irrational or unlawful departure

GA’s complaint is not that she has not been offered relocation under ACRS, but rather that under the scheme’s restrictive criteria she cannot even submit an expression of interest to be considered.

The statements of September 2021 made clear that the intention behind ACRS is to offer resettlement to those who have stood up for women’s rights and to those who are vulnerable, including women and girls, prioritising those who are trapped in Afghanistan or the region. She emphasises the language of commitment in the policy document in phrases such as “the scheme will prioritise…”.

But the three ACRS pathways announced in January 2022 fail to implement those policy intentions. The delay in access to ACRS for others is, GA submits, irrational and infringes the principle of effectiveness, given the risks these individuals face. The effect of the exclusion is seen particularly clearly in GA’s case because she has most of the characteristics which the policy identifies as relevant but is presently excluded from consideration and there is no indication of whether, or when, that might change.

The defendants argued that the policy statements from September 2021 are consistent with the way in which the scheme has been implemented, but even if the announcement in January 2022 did mark a change, it is open to the government to change its policies whenever it considers that it is in the public interest to do so.  

The situation in Afghanistan affects a great number of people, not all of whom can be assisted within a specific timescale. It is true that the policy decisions in setting the parameters of pathway 3 may have life-and-death consequences for individuals and therefore affect fundamental rights. The framing of the pathways was a reasonable means of organising the scheme and it is unavoidable that choices had to be made. These choices were made with consideration of expert knowledge of the situation in Afghanistan and the relevant strength of claims for protection by different groups of people, as well as considering security.

The court concluded that there was no change in the parameters of the policy:

“…In September 2021 it was announced that the details of pathway 3 remained to be determined; on 6 January 2022 it was announced that they had been determined for the first year of operation. Essentially the latter announcement merely answered the question of how the authorities would begin to decide which of many deserving people would benefit from an over-subscribed scheme.”

Comment

As there was no error in law in the relevant decision, the claim for judicial review was dismissed.

The judge concluded that “nothing in this judgment is intended to call into question the extraordinary courage of those who have stood up for democratic values in Afghanistan or the dangers which face them”. Decision makers in this area have difficult and painful choices, made even more so by the restriction of 1,500 places in the cohort in the first year, including dependents, announced in the June 2022 policy update. The judgment calls into question whether these schemes, as safe and legal routes into the UK, are therefore expected to be sufficient to account for all individuals who may alternatively arrive in the UK to seek asylum by other means.