Court of Appeal dismisses Home Secretary’s appeal against High Court decision quashing UK Government refusal to consider relocation claims of two Afghan judges

Friday 5 August 2022

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The Court of Appeal has dismissed the appeal of the Secretaries of State for Defence and the Home Department of a successful judicial review claim brought by two Afghan judges, heard by Lang J, against the refusal to consider their applications for leave outside the Immigration Rules. Although this appeal was brought by both departments, the focus of the appeal was brought by the SSHD. 

For a summary of the High Court judgment, read our earlier article here.

The Court of Appeal upheld the High Court’s decision that the SSHD’s refusal to consider the LOTR applications to be irrational, but only on one of two bases found by Lang J below.

The Court considered that the SSHD had acted irrationally by declining to consider their applications on the basis that they should have used one of the online Visa Application Forms (VAFs) when at the date of decision, neither S nor AZ could complete the forms accurately, as neither were in a position to provide biometrics whilst in hiding in Afghanistan. There was, and still is, no Visa Application Centre in Afghanistan nor is there a functioning British Embassy. During the course of this litigation, the SSHD amended her online VAFs, so that future applicants should be able to state on the form that they are not in a position to presently give biometrics and accordingly, request deferral pending the consideration of their application. 

The Court did not uphold Lang J’s reasoning that the online ARAP application form amounted to the visa application form that most closely matches S and AZ’s circumstances, for the basis of the LOTR Policy, on the basis that the ARAP application form was found not to be a visa application form at all. During the appeal hearing, the SSHD produced for the first time, an internal VAF form, which is unpublished and inaccessible to the general public. When an ARAP candidate is approved for relocation by the MoD, the internal VAF form is sent to the applicant to complete.  

The Court was not persuaded by the risks identified by the Appellants that completing any other VAF form (such as a visit visa or refugee reunion application) and mark ‘not applicable’ in most of the fields (as suggested by the SSHD) would result in procedural unfairness and was irrational, being contrary to the established rules of false representations and deception. The Court did however, acknowledge at §30 that 

“…it remains on the face of it very odd that applicants are required to use forms which are admittedly inappropriate, and it is not hard to see how applicants, particularly those without access to sophisticated advice, might be concerned that their application would be jeopardised by choosing a route which the Secretary of State believed matched their circumstances less closely than some other route and be puzzled how to answer questions that had no application to their circumstances. If, as Ms Giovannetti told us, the only reason for requiring the use of an inappropriate form was to have a vehicle by which applicants could be assigned a reference number and plugged in to the system for obtaining biometrics, why could that not be more straightforwardly achieved by providing a separate form for LOTR applications?”
The Court has upheld the factual findings in respect of both S and AZ, on their individual cases. Nor did the Court of Appeal disturb the factual findings of Lang J about Operation PITTING in the High Court decision below, namely 

  • The selection of persons for Pitting LOTR was likely to be inconsistent and arbitrary, despite commendable efforts of the staff involved [§121];
  • The process of Pitting LOTR strongly favoured those who had the benefit of lobbying by influential persons on their behalf, which was not an objective or fair means of selection [§121];
  • 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 the Claimants [§124];
  • 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 [§124];
  • Both Claimants in their work as judges, hearing counter-terrorism cases, contributed to the HMG objectives in Afghanistan to promote the rule of law and to combat terrorism. In doing so, they placed themselves and their families at considerable personal risk. That risk has heightened since the Taliban seized power [§125]; 
  • The above factors are relevant considerations to take into account in the Claimants’ favour in any substantive consideration of the applications for LOTR [§126].

It has been almost a year since the Taliban took over Kabul, and HMG launched Operation PITTING to evacuate certain British and Afghan nationals from Afghanistan. It is hoped that for these individual claimants, and others similarly situated, that their applications for relocation will urgently be determined. 

In terms of the wider implications for Afghan nationals applying for relocation to the UK, the Court’s judgment indicates that Afghan nationals who do want to be considered for leave outside the Rules may wish to consider with their advisors if they ought to complete another VAF, on a route that is appropriate for their circumstances, bearing in mind fee implications; or alternatively, consider if on the basis of representations, it is appropriate to ask the SSHD to depart from her policy of requiring a VAF. 

Given the complexity and urgency of these matters, if any individual or organisations requires legal advice in respect of prospective ARAP applications, or applications by Afghan nationals for leave outside the Rules, we suggest getting in touch with our team.  

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