Maha Sardar of the Garden Court Immigration Team writes for Refugee Week on the differential treatment between Afghan and Ukrainian refugees.
This year, the theme is compassion.
One of my all-time favourite legal films is A Time to Kill starring Matthew McConaughey and Samuel L. Jackson, based on the book by John Grisham. It is set in 1980s Mississippi, a predominantly white state where there is racial segregation and the KKK are rife. Jackson plays Carl Lee Hailey whose 10-year-old daughter is brutally attacked and raped by two white men. In retaliation and fearing that the perpetrators might walk free given the inevitable racial dynamic of the jury, he shoots them in the courthouse.
Carl Lee chooses his friend Jake Brigance, played by McConaughey, as the young white lawyer who defends him at his murder trial. On the last day of the trial, Carl Lee and Jake have an exchange. Unconvinced that Carl Lee will get a fair trial with an all-white jury, Jake tries to convince him to take a plea deal. Carl Lee refuses and asks Jake, “if you were on the jury what would it convince you to set me free?”
As he makes his closing speech, Jake asks the jurors to close their eyes. In graphic detail, he takes the jury through the pain and suffering inflicted upon Carl Lee’s daughter by the two men. He ends his submissions by telling the jury to “now imagine she is white.” The jury is visibly impacted, and Carl Lee is acquitted. The rationale for this twist is obvious: when we can see ourselves in someone, we make a connection. It elicits the feeling or emotion when a person is moved by the suffering or distress of another and by the desire to relieve it: compassion.
In February 2022, the world looked on in horror as the war in Ukraine unfolded. Millions of Ukrainians left the unimaginable terror which proliferated their homeland. Europe sprang into action like never before. The UK showed enormous compassion in welcoming Ukrainian refugees. Immigration routes were relaxed to facilitate their reception and residence; the Government opened their borders and citizens opened their homes.
This was in stark contrast to the embedded policy of exclusion, expulsion, and open hostility in operation for other asylum seekers. A sponsorship scheme was created allowing individuals, charities, community groups and businesses in the UK to bring Ukrainians to safety – including those with no family ties to the UK. No such schemes have been offered to Afghan, Syrian or indeed any other refugees. Compassion, it seems, has its limits.
Equality of treatment is enshrined in both the Universal Declaration of Human Rights and the European Convention on Human Rights. However, the UK government can treat groups in analogous situations differently, provided it is justified. That is because there is a discretionary area of judgment allowed to the body, authority, or Parliament. The question is: how intensely or critically do the Courts assess whether the treatment is justified? We recently challenged the differential treatment of Afghan and Ukrainian nationals in the case of AB v SSHD  EWHC 287 (Admin).
Our client AB was, until the fall of Kabul in August 2021, a female prosecutor in anti-narcotics, anti-corruption and anti-terrorism, including of Taliban members. She has a high profile, having prosecuted for twenty years in senior courts in Kabul. She remains in hiding, as there is strong reason to believe that she is known to the Taliban regime and that she may be at very serious risk of harm from them. She wishes to come to the UK and join her older brother and younger sister who are British citizens. If she were Ukrainian, she would have been welcomed to the UK with open arms. But she is Afghan, and so instead, she is met with scepticism and indifference. “Your plight is bad,” she is told, “but it is your plight, not ours.”
In the High Court, we argued that she, and other Afghans seeking to relocate to the UK, have been discriminated against pursuant to Article 14 ECHR, by comparison with the treatment of Ukrainian nationals. The Government has provided a safe and legal route to the UK for Ukrainians under the Ukrainian Family Scheme, which does not require the submission of biometric data. AB, and other similarly situated Afghans, are expected to provide biometric data, despite it being unsafe and difficult for them to do so. The Court held that there is differential treatment between Afghans and Ukrainians on the basis of nationality. However, the Court found that this differential treatment was justified as the Government should be afforded a wide margin of appreciation.
By distinguishing between refugees in this way, we are in danger of creating a hierarchy which says we value the lives of one set of humans over another. We need to support individuals and communities facing war and persecution equally and unconditionally. Compassion must be universal. In the final courtroom scene in A Time to Kill, Jake turns to the jury and asks ‘What is it in us that seeks the truth? Is it our minds or is it our hearts?’ He continues, ‘The law cannot be equal, because the eyes of the law are human eyes. Until we can see each other as equal, justice is never going to be even-handed, and it will remain nothing more than a reflection of our own prejudices. So, until that day we have a duty to seek the truth not with our eyes, not with our minds where fear and hate turn commonality into prejudice, but with our hearts where we don’t know better.’
We need to connect with all refugees not with our eyes, or minds, but with our hearts, to see them all as humans with identities, histories, and stories, and as ultimately deserving of compassion, culminating in international protection and sanctuary in the UK and worldwide.