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Successful challenge in the High Court helps family of Afghan judge


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The High Court has quashed a decision to refuse entry to the children of an Afghan judge who was relocated to the UK under the Afghan Relocations and Assistance Policy. The case of R (BAL) v Secretary of State for Defence [2022] EWHC 2757 (Admin) is a rare example of a successful rationality challenge.

The facts of the case were stark. BAL had been a judge in Afghanistan for many years. During the conflict with the Taliban, the British government had paid part of his salary and had provided him and his family with protection from the Taliban due to the risks associated with his work. After the fall of the Kabul to the Taliban in August 2021, BAL sought evacuation to the UK. The British Embassy initially told him he would be evacuated, but BAL was never called forward to attend at Kabul Airport for evacuation. This failure caused serious harm to BAL and his family. By June 2022, BAL and two his sons had been arrested and detained by the Taliban.

Judicial review proceedings were initiated, after which, in August 2022, BAL and his wife were eventually relocated to the UK. The Home Office continued to refuse to relocate BAL’s adult children on the grounds that they were not themselves at risk from the Taliban, despite a Ministry of Defence assessment that they were in fact at risk. BAL and his family challenged that decision on the grounds that it was irrational.

Steyn J agreed and concluded that the decision was irrational because the disagreement with the Ministry of Defence risk assessment was based on a mistake of fact about the security incident in June 2022:

“In my judgment, the claimants have succeeded in showing that the reasoning process was so seriously flawed as to render the decisions illogical and irrational.

First, the risk to the second, third, fourth and fifth claimants, based on the first claimant’s role, was assessed by the MOD’s DARR Intimidation Advisor. The Intimidation Advisor assessed that, by reason of the first claimant’s role, the other claimants were at the same high level of risk as their father. That is, they were “Almost Certain/Highly Likely (80 to 95%) to be subject to reprisal by Taliban/Criminals”. Such a level of risk could not rationally be regarded as other than compelling.

The decision to downgrade the Threat Assessment was based on a serious error. The evidence before the Panel on 6 July was that both sons and the father had been arrested and detained by the Taliban. That was made clear from the outset in the contemporaneous email in late June, as the Intimidation Advisor understood. It is true that a Panel member referred at the outset of the meeting on 6 July to the detention of the “sons” (plural), and when the Panel’s reasons were given in the letter of 15 July the letter-writer recognised that the evidence was that both the third and fourth claimants had been arrested. But this does not assist the defendants. The essential basis for the Panel’s decision (with respect to security) was the NCA’s downgraded assessment of the threat which was fundamentally flawed.”

This is a great result for BAL and his family. Hopefully the Home Office will swiftly make a fresh decision and agree to relocate BAL’s children to the UK. The judgment turns on the specific facts about the risk posed to BAL’s children, however, it does stand as an example of a successful rationality challenge in an area where one expects a high level of deference from the courts.

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Picture of Alex Schymyck

Alex Schymyck

Alex is a barrister at Garden Court Chambers