As the third anniversary of the Operation Pitting flights loom, the Home Secretary has finally announced a scheme, Afghan Citizens Resettlement Scheme Pathway 1 Stage 2, that will allow for evacuated families to be reunited.

Background

In August 2021, the world watched in horror as the Taliban began to overwhelm province after province in Afghanistan. The fragile stability that had held in the country since 2001 had disappeared and the return of Afghanistan to Taliban rule looked inevitable. In the end, the only surprise was how little resistance the Taliban faced.

Starting on 16 August 2021, the UK government began an ambitious programme to evacuate those who would affected by the conflict in Afghanistan; including consulate staff, allies and British Nationals. Over the next 12 days, via 100 evacuation flights, 15,000 at-risk individuals were airlifted from Afghanistan. This included individuals who were ‘called forward’ or otherwise specifically authorised for litigation as well as individuals who were able to successfully board a flight from Kabul airport.

Whilst many were evacuated, even more were left behind.

The Afghan Citizen Resettlement Scheme was formally launched on 6 January 2022. Category 1 (in effect) covered those who had already been evacuated or called forward for evacuation but not been able to make their flights; category 2 was a UNHCR resettlement scheme and the first part of category 3 was for British Council contractors, GardaWorld contractors or Chevening alumni.

The Afghan Citizen Resettlement Scheme works alongside the existing Afghan Relocations and Assistance Policy which does not limit numbers but applies specifically for formally locally employed staff.

Since the introduction of the Afghan Citizen Resettlement Scheme, practitioners, clients and NGOs have waited patiently for further announcements about the widening of the scheme as well as the courts clarification of what they mean and who are eligible.

Yesterday’s announcement follows the judgment in R (HR & Ors) v Secretary of State for the Home Department [2024] EWHC 786 (Admin) which was handed down on 11 April 2024 (Free Movement write up is here). This case concerned three Afghan sisters who had been evacuated under Operation Pitting. During chaotic scenes at the airport, the sisters had been separated from the rest of their family, including their parents.

The sisters had sought to be reunited with their parents via a safe and legal route only for the Home Office to direct them to apply for leave outside the rules, a route which was not designed for scenarios like this. The sisters sought to challenge the failure to introduce an appropriate route that would reunite families via judicial review. On 27 October 2023, the Home Office informed the sisters that a new route would be introduced, albeit no timescales could be given.

On 8 November 2023, in the middle of the two-day hearing, the defendant disclosed a ministerial submission dated 21 September 2023 in which the author had recommended for a new route to be introduced as it was believed that the existing routes were insufficient.

For example, applicants might try to apply under Appendix FM, fail to meet the eligibility criteria as a matter of course while not appreciating what evidence they need to satisfy a decision-maker that a refusal would result in unjustifiably harsh consequences for a relevant child… For an overseas applicant to be considered for LOTR, for instance, an application must first be made under the Rules such as (for example) Appendix FM. It is acknowledged within the LOTR guidance that a person may not meet all the criteria of a route but people should apply to the route that most clearly meets their criteria. Even if the parents do not meet all of the criteria there would be decisions on a case-by-case basis that would determine if a grant of leave was given and what grant of leave was given. As policy lead, I did not think entirely utilising existing routes would fulfil the publicly-stated ACRS eligibility intent of Ministers as set out in the ARIPS (paragraph 11).

When pressed for timescales, the defendant indicated that they intended to accept referrals in the first half of 2024.

Nonetheless, the court found that the failure of the Home Secretary to introduce a scheme was not unlawful; and that the suggestion of an application for leave outside the rules was not so deficient as to be irrational.

The sisters continued to wait in the hope that one day they would be reunited with their parents who remained in Kabul.

At the time of yesterday’s announcement, their wait amounted to 1068 days.

ACRS Pathway 1, Stage 1

The scheme may have not arrived in the first half of 2024 and it may have taken the Home Office nine months from when they first revealed their intentions in ‘HR’ to formally announce the scheme but at least it is here. This new route, the first since Pathway 3 closed in August 2022, brings hope to long suffering families who have been separated for such a lengthy period. The guidance gives reasons for clients and practitioners to be cautiously optimistic.

The new scheme is entirely discretionary and works outside the existing immigration rules.

How to apply

In keeping with the rest of Afghan Citizen Resettlement Scheme, this is not an application process. Instead, potential applicants must register an ‘expression of interest’ within the next three months, i.e. until 30 October 2024.

The website is already active and accepting expressions of interests. Applicants can log in using their existing biometric residence permits.

Eligibility

A potential applicant must have been evacuated to the UK from Afghanistan under ACRS Pathway 1 between the dates 13 August 2021 and 28 August 2021.

Over 18

Those who are over 18 years old can apply to be reunited with ‘immediate family members’, that is;  

• your husband, wife, civil partner or unmarried partner (you can only refer one spouse or partner. If you are already in the UK with a spouse, you will not be able to refer another)
• your own child who was born on or after 28 August 2003. The children you refer must not be living independently or have their own family.

Under 18

Those who are under 18 can apply on behalf of their parents, as well as brothers and sisters who are under 18.

Additional family members

Helpfully, the guidance also confirms that additional family members may be considered. The Home Office will be looking at levels of dependency as well as whether any of the additional family members have existing family units in Afghanistan.

Cost

There is no fee or financial requirements to make a referral under the scheme. There are no accommodation requirements and those granted entry clearance do not need to pay the immigration health surcharge.

Evidence Needed

An applicant must show evidence that they were evacuated under ACRS Pathway 1. TThis can be demonstrated by a biometric residence permit or a unique application number. They must also produce sufficient documentation to show that their family members meet the identity and relationship criteria of the pathway. 

In addition, applicants will need to prove the identity and relationships to their family members. The Home Office suggest documents such as:

• Tazkiras
• passports
• marriage certificates
• adoption certificates
• family photos
• school reports
• bank transfers between you and the family member
• social media messages between you and the family member
• medical records

Following an application

Applicants will need to have patience, first waiting for an eligibility decision. Practitioners can only hope that the two-year wait times applicants have suffered under the existing schemes are now a thing of the past.

If found eligible, the family members will need to travel to their nearest visa application centre and wait until arrangements can be made for travel.

The guidance confirms that the International Organisation of Migration will assist family members with accommodation and food whilst they wait for security checks and final travel arrangements to be made.

The guidance can be found here.

Conclusion

The scheme was borne out of an acknowledgment that the existing routes were not fit for purpose. It is hopefully a lifeline for those who have been separated from their families for the last three years. Practitioners and clients will be hoping that the scheme will be applied in accordance with the stated policy objection:

The ACRS Pathway 1 Stage 2: Separated Families pathway is intended to reunite families unintentionally separated during the events of Operation Pitting. The pathway is intended to restore immediate family units that continue to subsist in the same make up as prior to evacuation.

For further background to these changes, see DPG’s post.