The High Court has provided a glimmer of hope for some Afghan citizens seeking urgent relocation to the UK through applications for leave outside the Immigration Rules. The case is R (S & Anor) v Secretary of State for the Home Department & Ors [2022] EWHC 1402 (Admin).

The claimants were judges in Afghanistan prior to the Taliban taking over in August 2021. It was not in dispute, as Mrs Justice Lang noted, that they are at risk of serious harm or death at the hands of the Taliban. Their judicial review claims challenged the government’s decision to reject their applications for permission to enter the United Kingdom without even considering them.

The issues raised were:

1. Was any difference in treatment between the claimants, and other judges — those relocated to the UK and granted permission to stay under the Afghan Relocation and Assistance Policy (ARAP) or as leave outside the Rules (LOTR) — irrational or otherwise unlawful?
2. Were the procedural requirements imposed by the government in respect of LOTR applications irrational and/or in breach of the relevant policy (version 1.0)?

Lang J found in favour of the claimants in relation to the written policy, focusing on the procedural hurdles that they faced in seeking to have their LOTR applications considered. They now await substantive consideration of their applications for permission to come to the UK.

Application process

The claimants had applied for ARAP online, but expressly requested leave outside the Rules as well. Officials refused to consider the LOTR element:

The explanation given is that ARAP is not principally an immigration policy. ARAP applications are initially screened by officials from the MoD [Ministry of Defence], who are best placed to identify who worked for or with the UK Government in Afghanistan, whereas the grant of LOTR is a decision for the [Home Office], and so applications have to be screened by Home Office officials. It would delay the MoD in dealing with valid ARAP applications if they had to filter out LOTR applications and refer them to the Home Office. Therefore the Claimants were advised to apply via the standard online visa routes e.g. for those seeking to visit, study, or work in the UK or join family members.

Lang J found that “whilst it may be inconvenient for the MoD officials to have to refer LOTR applications on to the Home Office for consideration, I consider it is irrational and disproportionate for the Defendants to prioritise their own administrative convenience in this way when it is acknowledged that the Claimants are at risk of serious harm at the hands of the Taliban”.

Additionally, the judge found that the LOTR application form not allowing a request for a waiver or deferral of biometrics was irrational and procedurally unfair. The Home Office has discretion not to insist on biometrics in every case, under Regulation 5 of the Immigration (Biometric Registration) Regulations 2008. Lang J noted that the claimants and their dependants had a strong case for a deferral until such time as they could safely reach a visa application centre in a third country. (See also: Afghan judge to get visa decision before having to come out of hiding.) The form has since been changed to include the option of a biometric waiver/deferral application.

The judge also noted with concern that the current policy on LOTR (version 2.0) expressly excludes applications for LOTR using the ARAP online form: “this policy is at risk of a future legal challenge”.

Risk from Taliban

The judgment also usefully summarises the evidence of risk of harm from the Taliban. Lang J noted that there is credible evidence of the continued threat to those perceived as associated with the previous government and its institutions, including judges. The Taliban also perceives women in the public sphere, such as female judges, as transgressing cultural and religious mores. The judge cites several parts of the new(ish) country policy and information note on Fear of the Taliban, as well as the UN Refugee Agency’s August 2021 report Position on Return to Afghanistan.

Other useful bits

Of wider benefit to lawyers working in this area, Lang J provides useful background and context to the issues that these cases inevitably involve, including:

• The USA’s military intervention in Afghanistan in 2001, and the UK’s involvement (paragraphs 5-8)
• The Operation Pitting evacuation of Kabul, how this was conducted, the “selection criteria” and its outcomes (paras 9-17)
• The ARAP policy, its different versions and subsequent migration into the Immigration Rules (paras 58-64)
• The Afghan Citizens Resettlement Scheme (paras 65-71)
• The LOTR policy (paras 72-76)

And on Afghan judges specifically:

• Public statements and support in the UK for Afghan judges (para 18)
• The UK’s role in promoting the rule of law in Afghanistan (paras 19-25)
• The UK’s role in supporting women’s rights in Afghanistan (para 26)

And lastly, for legal newbies or experts alike, the three principles of “rationality”, “policies” and “procedural fairness” are also rounded up in paragraphs 77-88, with key extracts from leading authorities.

Coming back to Lang J’s specific findings, a number of these will no doubt significantly affect other cases, so I thought it useful to list these out below against relevant headings:

ARAP

106.  When considering the terms of the ARAP policy, it is important to bear in mind that it is primarily aimed at local staff and other personnel employed directly by the UK Government, as expressly stated on the face of the policy. It replaced other policies which were also directed at locally employed staff. It originated as a means of showing commitment to those who worked for and supported the UK Government, and reflects responsibilities owed by the UK to individuals in Afghanistan as a result. Category 4 also acknowledges the importance of work carried out by Afghan individuals alongside the UK Government, rather than as a Government employee.

107. In my judgment, Mr Hall is correct in saying that an Afghan judge may be eligible for ARAP, under the terms of the scheme, but that the status of being an Afghan judge is not of itself sufficient to establish eligibility. Eligibility will depend on a case-specific evaluation of the individual facts to see whether the criteria are met.

Operation Pitting and LOTR

121.  In my judgment, as it was impossible to assess and prioritise the huge numbers of people seeking evacuation from Afghanistan, in the limited time available, the selection of persons for Pitting LOTR was likely to be inconsistent and arbitrary, despite the commendable efforts of the staff involved. It is also apparent from the evidence that the process strongly favoured those who had the benefit of lobbying by influential persons on their behalf. That was not an objective or fair means of selection as it was likely that others who did not have influential sponsors were deserving too. The Claimants did not have anyone to lobby for them and they were unaware that they could be eligible under Pitting LOTR, as this was not a published policy.

…

124. In my judgment, there was no rational distinction between the comparator judges and the Claimants which could justify a grant of Pitting LOTR to the comparator judges but not to the Claimants. They were all judges who were implementing the rule of law in Afghanistan, consistently with the UK’s mission, but none of them had any direct or indirect connection with the UK Government… The sole reason why the comparator judges were selected was because they had contacts in the UK who were able to lobby the FCDO on their behalf. This illustrates the inconsistency and arbitrariness of Operation Pitting, and the extent to which lobbying and connections influenced the selections made, instead of the application of fair and objective criteria.

125. In my view, both S and AZ could have been eligible under Pitting LOTR criteria, if their names had been put forward. In their work as judges, hearing counter-terrorism and national security cases, they contributed to the UK Government’s objectives in Afghanistan to promote the rule of law, and to combat terrorism (albeit not working for or alongside the UK Government, so as to meet the ARAP criteria). In doing so, they placed themselves and their families at considerable personal risk. That risk has heightened since the Taliban seized power. They and their families are in hiding, but realistically they will be found by the Taliban at some point. There is verified evidence that other judges have been summarily executed by the Taliban.

This week the government has also announced more about the referral pathways under ACRS, which we hope to cover in a separate post very soon.