Upper Tribunal quashes unlawful Secretary of State decision to refuse Afghan judge LOTR as it failed to consider contribution to rule of law

Thursday 22 June 2023

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A Panel of the Upper Tribunal has quashed decisions of the Secretary of State for the Home Department to refuse a member of the Afghan judiciary leave outside the rules (‘LOTR’). It is understood in the specific context of post-evacuation Afghanistan, this is the first time the Tribunal has reviewed and quashed such decisions.

LOTR is the SSHD’s residual discretion under the Immigration Act 1971, and the published policy, ‘Leave outside the Immigration Rules’ advises decision-makers that the test is whether there are ‘compelling, compassionate circumstances’ present.

The Applicant has sought to relocate to the UK initially via the ARAP process, and then by way of application for LOTR.

The Upper Tribunal held:

  • Supporting evidence submitted after a negative ARAP decision, as to the Applicant’s contribution to the rule of law in Afghanistan, should have been considered by Entry Clearance decision-makers, not just the ARAP decision-maker. The Applicant specifically relied upon his wider contribution to the rule of law in his representations. It was relevant to both applications, and had been specifically relied upon for those purposes [§89-§90];
  • The fact that an Applicant may have a negative ARAP decision is not the complete answer to the lawful consideration of discretion outside the Rules: the Applicant had specifically relied upon wider factors, including their specific contribution to the rule of law; their risk profile as a result; and their current circumstances. It was irrational for the decision maker to exclude those factors from consideration [§98];
  • The judgment of Lang J in S and AZ v Secretary of State for Foreign and Commonwealth and Development Affairs & Ors [2022] EWHC 1402 at §124-§126 though obiter, was considered persuasive [§99]. Lang J had identified that two other Afghan judges, S and AZ, were in a similar position to Afghan Judges who were evacuated and granted LOTR during Operation Pitting; but that they could not apply for consideration for ‘Pitting LOTR,’ as there was no application process, and that the selection process was arbitrary and influenced by lobbying. Those were, in her view, relevant considerations for the purposes of LOTR. That analysis was endorsed here.

The Tribunal’s judgment in this particular case underscores the need for careful, individualised assessment in such cases.

Sonali Naik KC, Irena Sabic KC and Emma Fitzsimons, instructed in the case, are members of the leading Garden Court Chambers Immigration Team.

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