JZ v Secretary of State for the Home Department & Ors.

There are two applications before the Court, one for permission to appeal and the other to re-open an earlier refusal of permission to appeal against a related decision in the same proceedings. In view of the nature of the applications I need set out the background only in outline.

The Applicant is an Afghan judge. From 20 July 2008 to 30 May 2011 he was a first-instance judge assigned to the “Public Security” bench hearing terrorism cases. He sat at the Justice Centre in Parwan (“the JCIP”) at Bagram Air Force Base and also in a Public Security court which sat at the Pol-e-Charkhi prison in Kabul. Most of the cases involved insurgents and Taliban fighters who had been arrested by the International Security Assistance Force (“ISAF”). In May 2011 he was transferred to the Appeal Court in Kabul, where he did not hear terrorism cases. He was still in that post in August 2021 when the Taliban took control. It is not disputed that he is at serious risk from the Taliban, and he is at present in hiding in Afghanistan.

By solicitors’ letter dated 9 September 2021 the Applicant asked to be relocated under the Afghan Relocations and Assistance Policy (“ARAP”). The first stage in an ARAP application is for the applicant to be “sponsored” by a UK Government entity for or alongside which he or she worked in Afghanistan prior to the Taliban take-over. The Applicant’s potential sponsors were the Foreign, Commonwealth and Development Office (“the FCDO”) or the Ministry of Defence (“the MoD”). By a decision dated 18 October the FCDO declined to sponsor his application. That decision was reaffirmed in a letter from the Government Legal Department dated 24 November, which also confirmed that the MoD had likewise declined to sponsor the Applicant.

By the same solicitors’ letter the Applicant asked for leave to enter outside the Immigration Rules (“LOTR”). In relation to LOTR the decision-maker is the Home Secretary. That request has not been granted: I need not give the details.

On 30 November 2021 the Applicant issued the present proceedings seeking judicial review of the decisions of the relevant Secretaries of State in relation to the ARAP and LOTR applications (pleaded as grounds 1 and 2 respectively). In relation to the ARAP application he challenged both the 18 October and the 24 November decisions. Although all three Secretaries of State were Defendants, and are formally the Respondents before us, we are in these applications in substance only concerned with the decisions of the FCDO.

On 8 December 2021 Lane J refused permission to apply for judicial review. At an oral hearing on 15 December Kerr J maintained that refusal as regards the challenge to the ARAP decision but granted permission to challenge the LOTR decision.

The Applicant applied for permission to appeal against Kerr J’s refusal as regards the ARAP decision. That was refused by Lewis LJ on the papers on 28 February 2022.

Although Lewis LJ’s refusal of permission to appeal was on the face of it the end of the road for the challenge to the ARAP decision, the judicial review proceedings remained live because of the grant of permission as regards the LOTR decision. On 5 April 2022 Lieven J granted the Applicant permission to amend the claim form to add a challenge to the ARAP decision on a fresh ground and to pursue that challenge: that decision was later referred to in the proceedings as “JZ no. 1”.

In response to that amendment and further material filed by the Applicant in connection with the proceedings the Respondents convened a panel to reconsider his ARAP application. By a decision dated 26 May 2022 the application was again refused. There is no challenge to that decision in these proceedings. I will, however, quote a passage from it which clearly expresses the approach which not only that panel but also the makers of the previous decisions believed was required by ARAP:

The amended challenge to the ARAP decision first came before Hill J on 8 and 9 June 2022. That was intended to be the substantive hearing of the judicial review application, but it was in the event devoted to determining an application under Part 18 of the Civil Procedure Rules (“the CPR”) for further information about the Respondents’ case. By a judgment dated 1 July (“JZ no. 2”) Hill J granted the application in part and directed the Respondents to answer four questions. The further information was supplied by the Respondents on 18 July.

The adjourned hearing of the substantive claim took place on 25 July 2022, i.e. a week after the provision of the further information. The Applicant sought permission to adduce further evidence in response to that information, in the form of a (fifth) witness statement from the Applicant’s brother, SQ (“SQ5”). SQ lives in this country but is in contact with the Applicant and is a channel of communication between him and his solicitors.

On 12 August 2022 Hill J handed down a clear and thorough judgment dismissing the claim for judicial review (“JZ no. 3”). As part of that decision, she refused to admit SQ5.

The Applicant has applied to this Court for permission to appeal against the dismissal of his claim. He also contends that the further information supplied on 18 July 2022 constitutes a ground for re-opening Lewis LJ’s refusal of permission on the original ground 1, and he has made the appropriate application under rule 52.30 of the CPR.

On 12 December 2021 I directed that both those applications be determined at an oral hearing, with the opportunity for the Respondents to make submissions. The Applicant has been represented by Ms Sonali Naik KC, leading Ms Irena Sabic and Ms Emma Fitzsimons, all of whom appeared before Hill J. The Respondents have been represented by Mr Edward Brown KC, leading Ms Hafsah Masood. At the conclusion of the hearing we reserved our decision.

I start with the relevant provisions of ARAP. These are set out in full at para. 8 of Hill J’s judgment. For present purposes it is only necessary to record that there are four potential categories for eligibility for relocation. The first three cover current and former Locally Employed Staff in Afghanistan. At the material time category 4, which is the one relied on in the Applicant’s case, was defined as follows:

It is clear from the evidence that the relevant Department in relation to the sponsorship of judges, at least on the basis advanced by the Applicant, is the FCDO, and the submissions before us focussed on the decision of 18 October 2021. This was taken by the Head of Counter Terrorism Afghan Taskforce (“the decision-maker”). As he states in the written reasons for his decision, he reached his conclusion on the basis of a bundle of evidence submitted on behalf of the Applicant, together with his own knowledge developed through heading the counter-terrorism team at the British Embassy in Kabul from January to August 2021 and information obtained by his team from Afghan judges already relocated to the UK.

The reasons for the decision were, in summary, that the decision-maker did not accept that the Applicant had worked for or alongside any UK government entity. Para. 6 of his reasons reads:

The challenge to that decision before the Judge (so far as relevant to the proposed appeal) was that it was irrational because it was inconsistent with the decision by the FCDO to sponsor eleven other judges under ARAP (“the comparators”), who were in due course relocated to this country. It was common ground that a challenge on that basis was admissible in law to the extent recognised in Gallaher Group Ltd v Competition and Markets Authority [2019] UKSC 25, [2019] AC 96. All the comparators were working in the Anti-Terrorism Court in Kabul at the time of the Taliban take-over. The Applicant relied on a witness statement from one of them, Judge W, as evidence that his position was materially indistinguishable from the Applicant’s.

The broad outline of the Respondents’ case as regards the judges who had been found eligible under category 4 of ARAP was stated in a letter from the Treasury Solicitor dated 20 October 2021, which said:

Question 2 of the Request for Further Information referred to above asked the Respondents to “describe in brief terms what evidence there was that each judge ‘worked alongside’ HMG”. The answer was:

The Applicant did not accept that that answer demonstrated a basis for treating him differently from the comparators. He pointed out that Judge W’s evidence did not refer to any partnership relationship of the kind referred to. He also said that the court at Pol-e-Charkhi prison in Kabul heard cases of the kind subsequently heard in the Anti-Terrorism Court: the Judge records at para. 105 of her judgment that the Respondents accepted that the Applicant could for that reason in effect be considered to have been a judge of the Anti-Terrorism Court.

Hill J rejected the irrationality challenge for reasons which she gave at paras. 98-120 of her judgment. At paras. 106-116 she said:

The Applicant challenges the Judge’s reasoning and decision on two grounds. Ground (1) challenges her refusal to admit SQ5, and ground (2) challenges her substantive decision even without reference to that evidence. I take them in reverse order.

Ground (2) is pleaded over four paragraphs, but the essence of the challenge is in paras. 9-10, as follows:

I do not believe that that challenge has any real prospect of success. The starting-point is that the Judge makes it clear that she does not base her decision on “the timing of the Appellant’s service” as such: its relevance is that it meant that his work as an anti-terrorism judge did not come under the partnership arrangements developed by the UK Government with the Anti-Terrorism Court in Kabul from 2015 onwards.

It was not part of Ms Naik’s submissions that the UK Government was not entitled to regard the relationship with the eleven judges as a “partnership” and thus as fulfilling the “working alongside” requirement. Rather, the point being made in the final words of para. 9, and reiterated in the skeleton argument and oral submissions, was that the four factors identified in para. 111 of the judgment as illustrative of a partnership/“working alongside” relationship were present in the Applicant’s case also.

As to that, there may be an issue about whether on the evidence that was so, or in any event whether it was or should have been known to the decision-maker: I return to this in connection with ground (1). But even if it was, it is wrong to read para. 111 in isolation. The Judge’s essential point, clearly stated in paras. 107 and 110, was that the UK Government had, from 2015, developed what it regarded as a special relationship with a group of judges at the Kabul Anti-Terrorism Court, which it reasonably regarded as “working alongside” them within the meaning of category 4 of ARAP. There was no evidence before the decision-maker of any such specific quasi-institutional relationship with the JCIP at Bagram or the Public Service Court in Kabul where the Applicant heard his cases from the Pol-e-Charkhi prison up to 2011, or with the judges there; at most his statement in the bundle supplied showed that he had, on occasion, attended seminars with UK Government representatives. I see no prospect that this Court would disagree with the Judge’s conclusion that the decision-maker could reasonably regard the two situations as different: it must be recalled that he was making an evaluative assessment, not conducting a tick-box exercise.

I turn to ground (1). The Judge dealt with the application to adduce SQ5 at paras. 72-76 of her judgment, as follows:

Ground (1) is also rather discursively pleaded, but the essential points are that: (a) until the production of the Further Information it was not apparent what alleged differences between the Applicant’s case and the comparators’ were being relied on; (b) the evidence was “material to the issue of whether or not the Respondents had drawn a rational and lawful distinction between the Appellant and the other ARAP Judges relocated to the UK”; and (c) if the Respondents had required further time to respond there could have been an adjournment.

None of those points, with respect, addresses the principal basis of the Judge’s decision, clearly stated in para. 75, namely that the material now relied on was not before the decision-makers and could not be used to impugn the decision which they made on the basis of the available material: if the Applicant wanted to rely on it now he could seek a further review from them, but he could not ask the Court to engage in rolling judicial review. That reasoning is obviously correct in law and Ms Naik was not able to provide any answer to it in her oral submissions. I can see no prospect that this Court would allow an appeal on this ground.

It is true that in the final sentence of para. 75 the Judge referred also to the fact that the contents of SQ5 were not agreed, which implies that she accepted the Respondents’ submission that a further adjournment would be required if it were admitted and that was not acceptable. Ms Naik submitted that if an adjournment were necessary that was a price that had to be paid for a just outcome, particularly in circumstances where the Part 18 response had been supplied so shortly before the hearing. I need not consider that point since the Judge’s observation was clearly not necessary to her decision: the fact that SQ5 was introducing material that was not before the decision-makers is a complete reason why it should not have been admitted. (In the context of the timing of the provision of the further information, I ought in justice to the Respondents to add that the Judge was very critical in JZ no. 2 of the late stage at which the Part 18 request was made.)

In her oral submissions (and in outline in the Applicant’s skeleton argument) Ms Naik advanced two criticisms of the Respondents which are not part of the pleaded ground – namely that it was a breach of their duty of candour that they had not made clear at an earlier stage what criteria they were applying to the “working alongside” question, and that they had not themselves made sufficient enquiry into the Applicant’s circumstances before making the impugned decision. I do not see how either of those points gets over the fundamental difficulty that I have identified above. It must be recalled that the challenge with which we are concerned is only on the basis of irrationality/inconsistency: no case of procedural unfairness or breach of the Tameside duty was before Hill J. I should in any event say that I see real difficulties about both criticisms. The Applicant knew the terms of category 4: I do not see that the further information disclosed any substantially new criteria. He was given the opportunity to put before the decision-maker the facts that he believed showed that he had been working alongside UK Government entities.

I accordingly see no real prospect of ground (1) succeeding.

The Applicant also seeks permission to appeal against Hill J’s decision that he should pay the Respondents’ costs (albeit not to be enforced without an order of the Court pursuant to section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) even if permission is refused as regards the substantive decision.

The nature of the issue as to costs and Hill J’s decision sufficiently appear from the Reasons incorporated in her order of 12 August 2022, as follows:

The grounds of appeal do not contain a separate numbered ground addressing the costs decision but state simply that “the Appellant also appeals the learned Judge’s ruling on costs”. A bald statement of that kind would be acceptable, though unnecessary, if the Applicant was only saying that if the appeal were successful the Judge’s order as to costs should be reversed. But it is not an appropriate way to plead a self-contained challenge of the kind being advanced here: it was necessary to identify the basis on which the Judge was said to have erred. The Applicant’s skeleton argument is also defective. Para. 68 simply repeats, in identical terms, the arguments recorded by the Judge in para. 6 of her Reasons, without any attempt to address the reasons which she gives in para. 7 for rejecting those arguments. Ms Naik did not in her oral submissions repair that deficiency, though she added that the written submission summarised by the Judge as head (ii) had also made the point that the Respondents’ late disclosure was a breach of their duty of candour.

In the absence of any developed challenge to the Judge’s reasoning I need only say that I can see no error whatever in her decision, which was on any view well within the bounds of her discretion. (I would add for completeness that in fact Lieven J’s order in JZ no. 2 provided for the costs before her to be in the case, so that it was not in any event open to Hill J to make no order for costs as the Applicant was seeking.)

It follows that I would refuse permission to appeal against both the dismissal of the Applicant’s claim for judicial review and the Judge’s decision on costs. I understand that Simler and Warby LJJ agree with that decision. I should note that the Practice Direction governing citation of authorities[2001] 1 WLR 1001, provides at paras. 6.1 and 6.2 that decisions on an application for permission to appeal (which are not in any event binding – see Arthur J S Hall v Simon [1999] 3 WLR 873, per Lord Bingham CJ at p. 902H) may not be cited as authority unless otherwise specifically directed; and that remains the case even where, as here, they follow an oral hearing and are accordingly under current arrangements automatically available in the National Archives and on BAILII. Since there are a number of current cases involving the ARAP scheme, and parties and others are understandably interested in a decision of this Court in the area, I should make it clear that the Court sees no reason to depart from the usual rule in this case. This is a decision on the particular facts and arguments in the present case and our reasoning is not of any wider application. (For the avoidance of doubt, there is of course no objection to the decision being referred to if necessary to explain points of procedural history or the like: the objection is to it being cited as authority.)

The only ground of appeal advanced before Lewis LJ was that on its proper construction category 4 of the ARAP policy was wider than the decision-maker had understood. As summarised by him in refusing permission to appeal against the decision of Kerr J (see para. 4 of his Reasons), the argument was that

As to that Lewis LJ held (para. 5):

Normally of course Lewis LJ’s decision would be final. But rule 52.30 provides for the re-opening of what would otherwise be a final decision where (see paragraph (1)):

The circumstances relied on by the Applicant in seeking to re-open Lewis LJ’s decision are that further evidence emerged subsequent to it, in the shape of the contents of the further information provided by the Respondents on 18 July 2022; and it is said that that evidence might have led him to grant permission to appeal on the original ground 1. The case is put in para. 53 (b) of the Applicant’s skeleton argument as follows:

I do not believe that there is any chance that if the contents of the further information had been before Lewis LJ when he made his decision he would have come to a different conclusion about the meaning of category 4 of ARAP. The construction that he rejected in para. 5 of his Reasons was that a purely indirect contribution to the UK’s mission in Afghanistan, by working with others, would suffice. The later information about the “partnership” with the Kabul Anti-Terrorism Court does not bear on that question at all: the relationship in question was, directly, with the UK Government.

In fact, however, although the Applicant argues that Lewis LJ might have reached a different conclusion about the construction of category 4, his real point appears to be about how the policy was applied in practice (though not in the way addressed by Lewis LJ at para. 6 of his Reasons). His contention is that, even if (contrary to the case then being advanced) category 4 did require a direct relationship with a UK Government entity, the new evidence shows that the criteria for establishing such a relationship were “more flexible” than might otherwise be supposed. I will assume in the Applicant’s favour that he is entitled to rely on this point, even though it was not the case originally advanced. But in the light of my conclusion on the permission to appeal application, it goes nowhere. The allegedly more flexible criteria relied on are those applied in the cases of the eleven comparators. Hill J has held that, on the evidence available to the decision-takers, the Applicant was not in the same position as them, which means that he did not satisfy those criteria; and I believe that that decision is unimpeachable. There is accordingly no injustice in Lewis LJ not having had the opportunity to consider the evidence in the Part 18 response or the argument that the Applicant might have based on it.

I would accordingly dismiss the application to re-open.

I should conclude by saying that no-one can fail to sympathise with the Applicant’s predicament. But it is the responsibility of the Government to decide how far it should go to assist those in Afghanistan who are at risk because of their work in support of values which this country shares. The choice made by ARAP is that eligibility for relocation should be limited to those who worked directly for UK government entities or alongside them in accordance with category 4: the distinction is clearly recognised in the panel decision quoted at para. 9 above. The Court can only intervene if the decisions which officials have to take under that policy, which will not always be easy, are made irrationally or otherwise not in accordance with the law. The Judge has decided that that was not the case here, and there is no arguable error in her decision. The Applicant has of course a separate challenge to the refusal of LOTR, which I understand remains pending; but that is not before us on this occasion.

On 15 February, when this judgment was almost finished, the Applicant’s solicitors wrote to the Court in order, in part, to draw its attention to the recent decision of Lane J in CX1 v Secretary of State for Defence [2023] EWHC 284 (Admin), which concerned a decision made under ARAP in the case of Afghan nationals who had worked for the BBC and other news agencies. The issues decided in that case are different from those raised by these applications and nothing in Lane J’s decision requires us to reconsider our reasoning or conclusion.

I agree.

I also agree.