Sonali Naik QC, Irena Sabic and Emma Fitzsimons acted for S, instructed by Rachael Lenney and Emma Terenius at Wilsons LLP.
Irena Sabic, David Sellwood and Maha Sardar acted for AZ, instructed by Zoe Cooley and Michael Goldin at Wilsons LLP.
The High Court has granted the judicial review claims of two Afghan Judges, who sought leave to enter the UK following the Taliban’s assumption of control of Afghanistan on 15 August 2021.
During August 2021, the UK Government launched Operation Pitting to evacuate British nationals and Afghan nationals who qualified for the ‘Afghan Relocation and Assistance Policy,’ (ARAP). In addition, Ministers also approved the evacuation of another cohort, who were relocated to the UK and granted leave outside the Immigration Rules (LOTR).
In the course of proceedings, the Claimants came to learn that individuals were considered eligible if they met the Operation Pitting criteria, namely:
- Contribution to HMG objectives in Afghanistan; and either
- Vulnerability due to proximity and high degree of exposure working with HMG;
- Sensitivity of the individual’s role in support of HMG’s objectives [§11].
The Pitting LOTR criteria were not the subject of any published policy, nor was the process for Pitting LOTR by application.
The Claimants, S and AZ, were both members of the Afghan judiciary. They were accepted to be at risk from the Taliban by the Defendants. Their applications for relocation were refused by the Defendants.
The two key issues before the Court were:
- Was any difference in treatment between the Claimants, and the comparator judges irrational or otherwise unlawful? The comparator judges were relocated to the UK, during and after Operation Pitting, under the ARAP or under a grant of LOTR?
- Were the procedural requirements imposed by the Defendants in respect of LOTR applications irrational and/or in breach of the applicable LOTR policy (version 1.0, dated 27 February 2018).
Mrs Justice Lang found:
- In respect of ARAP, it was not unlawful to treat S and AZ differently on their specific facts [§115-§117]
- The selection of persons for Pitting LOTR was likely to be inconsistent and arbitrary and 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. The Claimants did not have anyone to lobby for them and they were unaware that they might have been eligible under Pitting LOTR as this was not a published policy [§121];
- There was no rational distinction between the comparator judges [put forward in the Claimants’ evidence] and the Claimants which could justify a grant of Pitting LOTR to the comparator judges but not to the Claimants [§124];
- Both the Claimants could have been eligible for Pitting LOTR had their names been put forward on account of their judicial work which contributed to the UK Government’s objectives in Afghanistan to promote the rule of law and to combat terrorism. They put themselves and their families at considerable personal risk, which has heightened due to the Taliban takeover [§125];
- The Pitting LOTR criteria are no longer in operation, as Operation Pitting has concluded. The Claimants’ LOTR applications fall to be considered, but those factors are still relevant considerations to take into account in their favour in any substantive consideration of their claims [§126];
- In terms of the procedure, the Court agreed with the Claimants’ submission that it was unlawful for the SSHD to refuse to consider their LOTR applications. It was obvious why the LOTR policy directs applications to be made on the form for visa type which most closely matches their circumstances, because any compelling compassionate circumstances are to be decided by reference to the relevant Immigration Rules. Here, the route that most closely matched their circumstances was ARAP. The other online visa routes proposed by the SSHD (visit/study/work/reunion visas) did not remotely match the Claimants circumstances. Further, it was contrary to the rules of false or misleading representations in the Rules. Equally, entering ‘not applicable’ in answer to questions on visa forms is misleading by omission [§128-§131];
- It also carries a grave risk that LOTR applications will be considered and dismissed without any meaningful reference to the criteria which the SSHD has applied in other comparable cases, in the exceptional circumstances pertaining in Afghanistan. This is procedurally unfair [§132];
- It was irrational and disproportionate for the Defendants to prioritise their administrative convenience as justification for its refusal to consider the LOTR applications, when they had acknowledged the Claimants are at risk of serious harm from the Taliban [§133];
- The Claimants were also unable to proceed with their LOTR applications, because at the time, there was no mechanism by which to inform the SSHD that they were not in a position to provide biometrics when making their application. There is no functioning British Embassy or Visa Application Centre in Afghanistan. During the proceedings, the SSHD has now amended the online forms to include an option of applying for a waiver or deferral of biometrics. That was the rational and fair course of action, but that change was only implemented after the decisions in the Claimants’ cases [§135-§137]
- The decisions on LOTR are to be quashed, and the SSHD to determine the claims, both procedurally and substantively, in light of the Court’s judgment [§141-§142].
The Claimants’ legal team would also like to thank the enormous efforts and collaboration of colleagues at Mischon deReya and Eversheds in this litigation.