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New statement of changes to the Immigration Rules: HC 913 (closing the door on Afghans)
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And just like that we have a new statement of changes to the Immigration Rules. HC 913 was laid yesterday, 14 December 2021, and solely addresses changes to the Afghan Relocations and Assistance Policy (ARAP) and Ex Gratia Scheme for Locally Employed Staff. It came into effect, wait for it… at 16:00 the same day.
These sudden changes narrow the criteria for being accepted onto the ARAP scheme, and are retrospective. In other words, they apply to all decisions made after 16:00 on 14 December 2021. As a result, people who were advised by UK government officials (sometimes very highly placed) to make ARAP applications, and reassured that they should qualify, may not now be eligible — even if they have already lodged that application.
The way this has been brought in will — I anticipate — sit very badly with most members of the public. It will be even less welcome to immigration lawyers who have been doing their best to support those who have suffered and are suffering the consequences of the conflicts in Afghanistan and the recent Taliban take-over. Ever since Alvi, the Home Office (and Parliament) has seen fit to sanction and perpetuate this trend of short-notice changes but this frankly takes things to another level, considering the government’s handling of the withdrawal in Afghanistan and the lack of progress on resettlement since.
The ARAP and Ex Gratia schemes already in place are for “locally employed staff” who worked for or with UK armed forces in Afghanistan. An additional Afghan Citizens Resettlement Scheme (ACRS) was announced in August 2021, but is not operational. For a round-up of these schemes and information on in-country Afghan asylum claims, do listen to this podcast recorded in August, just after ACRS was announced (depressingly little has changed since then).
The statement of changes published yesterday is mainly focused on ARAP. This is broadly aimed at people who “face intimidation or threat as a direct result of their employment with the UK”. Introduced in April 2021, ARAP was on the whole a welcome development compared to the policy it replaced, and was further improved over the course of 2021. As the explanatory memo to the new statement of changes highlights:
The policy was expanded by way of published content on Gov.UK (not in the Immigration Rules) on 4 June 2021 to allow for those who were contracted to provide linguistic services in support of the UK Armed Forces to fall under Category 2. The policy was further expanded in late July to allow case-by-case consideration of individuals who had worked in a role that made a material contribution to HMG’s mission in Afghanistan, and without whose work the UK’s operations would have been adversely affected, and who were now at risk because of their work given the changing situation in Afghanistan.
The changes made yesterday are in the opposite direction. As the explanatory notes go on to say, “the updated ARAP policy will be narrower than that applied previously including during Operation Pitting in August 2021, insofar as the Rules will limit eligibility to those who furthered the UK’s military and national security objectives”.
Major ARAP changes
The criteria for ARAP used to be in government guidance, rather than the Immigration Rules. There were four categories of people eligible for assistance:
|High risk / imminent threat
|Eligible for relocation by default
|Not eligible for relocation
|Other support offered
Going forward, there are three categories, now found in Part 7 of the Immigration Rules:
- Paragraph 276BB3 – a person at high and imminent risk of threat to life;
- Paragraph 276BB4 – former employees eligible for relocation; and
- Paragraph 276BB5 – special cases.
The first category – high and imminent risk of threat to life – is only for people directly employed by a UK government department (at any time on or after 1 October 2001). They need to show that because of that employment, they are facing said level of risk. This is similar to the old Category 1.
The second category – former employees eligible for relocation – is for both directly employed staff (again, by a UK government department from 1 October 2001 onwards) and for those who “provided linguistic services to or for the benefit of members of the UK’s armed forces in Afghanistan under contract to a UK government department (whether as, or on behalf of, a party to the contract)”. Any such person then needs to show all of the following:
(ii) The nature of the role in which the person was employed was such that the UK’s operations in Afghanistan would have been materially less efficient or materially less successful if a role or roles of that nature had not been performed; and
(iii) The nature of the role exposed the person to being publicly recognised as having performed that role; and
(iv) as a result of that public recognition, the person’s safety is at risk.
This is fairly similar to what was Category 2. But there is slightly different wording concerning contribution to the UK’s operations in Afghanistan. The test now is whether those operations “would have been materially less efficient or materially less successful”, as opposed to “would have been adversely affected”. It remains to be seen whether that is interpreted as a lower test, but it appears that way at first glance.
The third and final category – special cases – is where the more dramatic changes can be found. Special cases need to meet conditions 1 and 2, and then one or both of conditions 3 and 4. These are as follows:
(i) condition 1 is that at any time on or after 1 October 2001, the person:
(a) was directly employed in Afghanistan by a UK government department; or
(b) provided goods or services in Afghanistan under contract to a UK government department (whether as, or on behalf of, a party to the contract); or
(c) worked in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department;
(ii) condition 2 is that the person, in the course of that employment or work or the provision of those services, made a substantive and positive contribution towards the achievement of:
(a) the UK government’s military objectives with respect to Afghanistan; or
(b) the UK government’s national security objectives with respect to Afghanistan (and for these purposes, the UK government’s national security objectives include counter-terrorism, counter-narcotics and anti-corruption objectives);
(iii) condition 3 is that because of that employment, that work or those services, the person:
(a) is or was at an elevated risk of targeted attacks; and
(b) is or was at high risk of death or serious injury;
(iv) condition 4 is that the person holds information the disclosure of which would give rise to or aggravate a specific threat to the UK government or its interests.
This replaces the previous Category 3 and Category 4:
The cohort eligible for other support are those who are neither assessed to be at high and imminent risk of threat to life nor eligible by default due to holding exposed meaningful enabling roles.
This cohort are eligible for all other support short of relocation as deemed suitable by the ARAP team.
The cohort eligible for assistance on a case-by-case basis are those who worked in meaningful enabling roles alongside HMG, in extraordinary and unconventional contexts, and whose responsible HMG unit builds a credible case for consideration under the scheme (in some cases this includes people employed via contractors to support HMG defence outcomes).
Where relocation is offered to Category Four individuals, circumstances dictate whether it is urgent or routine, as assessed by the ARAP team.
In seeking to embed the guidance into the Rules and “clarify” the eligibility criteria, we see a clear shift towards needing to prove a contribution to UK military and nationality security objectives and away from “working in meaningful enabling roles alongside the UK government, in extraordinary and unconventional contexts”. The latter provided, or at least potentially provided (depending on how the guidance was interpreted by the decision-makers) scope for Afghan citizens who had worked alongside UK government departments in non-military/security-related fields, to make a case for relocation.
Such fields include the promotion of the rule of law, free and open journalism, women’s and other minority equality rights, education and many other areas of civil society. The government may say that this is what the new ACRS is for. That scheme is not even open yet — but still the government is introducing retrospective changes to the only scheme that is currently available. There aren’t many words for that.
There is now a new paragraph 276BB6 which contains standalone provisions for those who are eligible under the old Ex Gratia scheme:
276BB6. A person falls within paragraph 276BB1 under the Afghanistan Locally Employed Staff Ex-Gratia Scheme if:
(i) the person was directly employed in Afghanistan by a UK government department; and
(ii) the person was made redundant or resigned on or after 1 May 2006; and
(iii) the person served for a minimum of 12 months prior to either redundancy or resignation and served on frontline duties in an exposed role; and
(iv) the person submits an application for consideration not later than 30 November 2022; and
(v) a UK government department has determined that the person should qualify for relocation under the ex-gratia redundancy or resignation package including confirmation that they served on frontline duties in an exposed role.
Provision is also made for dependants of main applicants, the criteria for being considered a “partner” or “child”, and for dependants to be refused in line with the main applicant should the latter be refused. Importantly, the requirement for dependants to be Afghan nationals is also being removed.
These unnecessarily complicated changes seek to narrow, if not close, the door on many Afghans hoping to come to Britain off the back of their work with the UK government over the many years of its interventions in Afghanistan. This sits very uneasily against the promises that were made in April 2021 when the ARAP scheme was introduced, and again in August 2021 following the events in Kabul.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.