In yet another Afghan evacuation case, the court in KBL v Secretary of State for the Home Department [2023] EWHC 87 (Admin) looked at whether the guidance issued for the benefit of potential beneficiaries of the evacuation, known as “Operation Pitting”, created a legitimate expectation that Afghans in similar circumstances would be treated equally, despite not being evacuated or “called forward”.

KBL was a high profile women’s rights activist and government official prior to the Taliban retaking control of Afghanistan. Despite this, she was not evacuated during Operation Pitting, which was a partial evacuation by UK forces in August 2021. Neither was she “called forward” under the scheme, which is a term for people whom the government explicitly offered to evacuate but in the end couldn’t for logistical reasons.

We have previously covered the evacuation and the litigation stemming from it here, here and here.

On 20 October 2021, KBL lodged a request for permission under the Afghan Relocations and Assistance Policy (ARAP), which was followed by representations in support of an application under ARAP, the Afghan Citizen’s Resettlement Scheme (ACRS) and leave outside the Rules (LOTR).

She sent a letter before claim on 17 November 2021 challenging the delay in decision making. The Government Legal Department replied on 13 December 2021 stating that it was not yet in a position to make a decision on the ARAP request but that her application would not be considered for a grant under ACRS (because the scheme did not have an individual application process) or LOTR (because she did not use an appropriate application form and did not enrol her biometrics or ask for a waiver from this requirement as part of an immigration application).

Shortly after the grant of permission by the High Court, KBL fled to Pakistan with her children on a visa valid for 60 days. She returned to Afghanistan before her visa expired as she feared being turned over to the Taliban if she overstayed after she failed to secure an interview with the UNHCR in that time.

Her ARAP application was subsequently refused. This refusal did not form part of the challenge.

Correct form and biometrics

Following S & AZ v Secretary of State for the Home Department [2022] EWCA Civ 1092, Lang J found that the Home Office was correct in not considering her LOTR application because an applicant can’t attach a LOTR application to an ARAP request and must instead use an immigration application form.

Similarly, she found that although some applicants could apply for and receive a waiver from having to enrol their biometrics before their application could be considered, this did not apply in KBL’s case because she successfully travelled to Pakistan so could enrol her biometrics there:

As the SSHD submitted, following the Court of Appeal’s decision in S and AZ, the Claimant had not made a valid application for LOTR because she used an ARAP application form, not one of the online visa forms specified on the Gov.UK website and the relevant LOTR guidance. Therefore the SSHD did not err in law when she refused to accept her LOTR application as valid, with the inevitable consequence that the Claimant could not make an appointment to provide her biometrics at the VAC in Pakistan.

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Legitimate expectation

Although Lang J found that KBL has not yet made a valid LOTR application, which means that the Home Office has yet to actually make a substantive decision as to whether to grant it, she did set out some principles about the policy criteria that would apply to the consideration of such an application.

Having unsurprisingly found that the relevant policies that would apply to a future application are those that are in place when the decision on the application is made, which would rule out the Operation Pitting guidance, she held that an applicant did not have a legitimate expectation that they will be treated equally to those evacuated or “called forward” under that guidance if their circumstances were sufficiently similar.

This is because there was no “clear, unambiguous and unqualified representation” to the effect that the decisions made about who to prioritise for evacuation would be made fairly and consistently, and was merely intended as guidance as to the steps being taken by the government to evacuate those deemed to be at most risk:

I accept that the Claimant potentially came within one or more of the prioritised groups listed because of her work promoting women’s rights, and as a government official. However, applying the test set out by Lord Dyson in Paponette, at [30], on a fair reading, the guidance could not reasonably have been understood as an offer to evacuate anyone in the priority groups, without regard to any selection criteria or practical limitations on the number of evacuation flights. Taken at its highest, it was an offer to consider for assistance those non-British nationals who were at risk, and fell within the priority groups, who contacted the help line listed. No representations were made as to the criteria or processes that the Defendants would apply in addressing any requests for assistance. It is common ground that the Claimant did not see this guidance at the time, and did not make any application for assistance.

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Conclusion

It’s unfortunate that we are seeing yet more Afghans who the government accepts are at high risk having to jump through further bureaucratic hoops just to have their cases considered. The fact that KBL would have to travel to Pakistan to lodge a separate application after already making the journey once and returning to Afghanistan for fear of being turned over to the Taliban is a clear sign that we are failing the people we abandoned there.