S (R on the application of) v SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVELOPMENT AFFAIRS & Ors

The Claimants, who were judges in Afghanistan prior to the defeat of the Afghanistan government by the Taliban in August 2021, seek judicial review of the Defendants’ decisions refusing their application for leave to enter the United Kingdom (“UK”). It is not in dispute that the Claimants are at risk of serious harm or death at the hands of the Taliban.

The issues may be summarised as follows:

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 Afghan Relocation and Assistance Policy (“ARAP”) or under a grant of Leave Outside the Rules (“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).

In the case of S, permission to apply for judicial review was refused on the papers by Lane J. on 9 December 2021, but granted at an oral renewal application on 18 March 2022.

In the case of AZ, permission to apply for judicial review was granted on the papers by Bennathan J. on 8 February 2022.

Following the terrorist attacks against the United States of America (“USA”) on 11 September 2001, the USA led a military intervention against Al Qaeda groups, and the Taliban government in Afghanistan. The UK took a significant part in the USA’s initial intervention. Subsequently, the operation was supported by NATO and a joint international force, collectively called the International Security Assistance Force (“ISAF”), in which the UK played a leading political, diplomatic and military role.

Mr Tim Foxley MBE, in his witness statement dated 28 April 2022, set out a helpful chronology, based upon ‘The UK and Afghanistan’, House of Lords Select Committee on International Relations and Defence, p.11-12 (13 January 2021) and Farrell, T. ‘Unwinnable: Britain’s War in Afghanistan, 2001 – 2014’, (The Bodley Head, London 2017). He said, at paragraph 23:

On 29 February 2020, the USA and the Taliban signed the Doha Agreement (officially titled the “Agreement for Bringing Peace to Afghanistan”) that provided for the withdrawal of all USA and allied military forces and civilian personnel from Afghanistan by 1 May 2021. The withdrawal was conditional upon the Taliban upholding the terms of the agreement that included not to allow Al Qaeda or any other extremist group to operate in the areas they controlled. The withdrawal of the USA was later deferred to 31 August 2021.

In May 2021, the Taliban launched a major offensive against the Afghan Armed Forces, and then made rapid advances. By 15 August 2021, the Taliban had seized Kabul. USA and NATO troops retreated to Kabul airport from where they operated an emergency airlift for all NATO’s civilian and military personnel, other foreign nationals, and at-risk Afghan nationals. The final British flight from Kabul took place on 28 August 2021. The last USA military planes left Afghanistan on 30 August 2021. Taliban soldiers then entered the airport and declared victory. The Taliban government has been in total control of Afghanistan since that date. The UK Embassy and other NATO Embassies have remained closed.

“Operation Pitting” was the name given to the UK Government’s mission to evacuate British nationals, and others at risk from the Taliban, when Kabul fell. It was initially planned with the intention of evacuating two groups. First, British nationals and their families, who were the responsibility of the Foreign and Commonwealth Development Office (“FCDO”). Second, Afghans who were given leave to enter the UK under the ARAP, who were the responsibility of the Ministry of Defence (“MoD”).

From the week beginning 9 August 2021, Ministers were seeking to evacuate other at-risk Afghan nationals, who were not likely to be eligible for ARAP, to take advantage of spare flight capacity not required to evacuate the two groups originally identified. To achieve this objective, it was agreed that selected persons, who appeared to meet the agreed criteria, would be eligible for a grant of LOTR by the Secretary of State for the Home Department (“SSHD”), and would be called forward to board evacuation flights, subject to security checks. The Government did not have time or capacity to process their applications for LOTR in Afghanistan: applications had to be approved either at a staging post at Dubai, or on arrival in the UK. This scheme became known informally as “Pitting LOTR”.

According to Mr Philip Hall, who led the FCDO team responsible for Operation Pitting, three selection criteria were applied, as set out in paragraph 20 of his witness statement:

In his witness statement (paragraph 17), Mr Hall said that, on 19 August 2021, FCDO officials recommended to Ministers the following cohorts for evacuation under Pitting LOTR, flight capacity permitting:

Each of these cohorts was linked to a list of individuals, drawn up by FCDO staff. Further lists of extremely vulnerable people and their dependants were added in the following days.

An Evacuation Handling Centre (“EHC”) was set up at the Baron Hotel, located near the airport in Kabul. Support was provided from a Crisis Centre, housed at the FCDO in London, and military support was also provided there. The logistics operation was co-ordinated by the MoD and Permanent Joint Headquarters (“PJHQ”).

Operation Pitting was challenging. The FCDO received thousands of requests for evacuation, both directly from Afghans, and by way of recommendation from Ministers, Members of Parliament, military officers, senior officials, judges and others. It is estimated that the ten relevant mailboxes in the FCDO received 175,000 communications from 13 to 31 August 2021. The FCDO did not have the capacity to fully scrutinise or prioritise all these applications within the short time available. The numbers applying far exceeded the capacity of the airplane seats available, and so potentially eligible persons were left behind. Approximately 1,000 people were called forward for evacuation under Pitting LOTR (that figure includes the dependants of eligible persons).

Conditions outside the airport in Kabul were chaotic, and at times dangerous, because of the huge crowds of people who had gathered at the airport, seeking to flee the country. There were also threats of attacks on the airport, which materialised on one occasion when a suicide bomber exploded a bomb in the crowd, causing injuries.

Some people who had been called forward for evacuation were prevented from reaching the Baron Hotel or the airport, either because of Taliban checkpoints on the roads to the airport, or because of the huge crowds of people gathered at the airport, blocking their access.

The Claimants referred to a number of public statements, made in the UK, concerning the predicament of Afghan judges. Among these were statements from the Lord Chancellor and the President of the Law Society, published in an article in the Law Society Gazette on 26 August 2021:

A joint governmental policy paper, published on 14 January 2014, described the extensive development aid projects, supported and funded by the UK and its partner nations, in Afghanistan. It describes the UK’s work to support and build more accountable and democratic institutions, including a written constitution and a democratic government, at both national and local levels. The paper stated:

It described in particular the introduction of an effective justice system in Helmand Province, where British troops were stationed. Prior to 2006, Helmand had no effective formal justice system. It explained that:

Mr Foxley describes the UK’s engagement with the Afghan courts and the judiciary, at paragraphs 52 to 58 of his witness statement. Rule of law initiatives included financial support for training of judges; developing capacity for the successful investigation and prosecution of terrorism; establishing the Anti-Corruption Justice Centre to investigate and prosecute serious corruption cases; establishing the Criminal Justice Task Force to prosecute drug-related crimes; and ongoing mentoring and training for judges and prosecutors.

Mr Foxley states, at paragraph 27, that, although there was always a major British diplomatic, civilian, military and administrative presence in Kabul, it did not mean that the UK was solely focused on developing Kabul at the expense of the rest of the country. It is evident that the goal of the UK and its NATO allies was to implement a reformed justice system across Afghanistan.

The importance of the work of the Afghan justice system to the UK’s mission and operations in Afghanistan was acknowledged by the UK Government in “The UK and Afghanistan”, published by the House of Lords Select Committee on International Relations and Defence Government Response 12 March 2021:

As Mr Foxley observes at paragraph 73:

However, there were risks for judges involved in implementing an effective justice system in Afghanistan, as Mr Foxley describes at paragraph 72:

The UK Government summarised the support it gave to women’s rights in its review “The Future of Afghanistan: Development Progress and Prospects after 2014”:

There is credible evidence of the continued threat posed by the Taliban towards those perceived as associated with the previous government and its institutions, including judges. The Taliban also perceive women in the public sphere, such as female judges, as transgressing Taliban cultural and religious mores.

This threat was identified by the United Nations High Commissioner for Refugees (“UNCHR”) in August 2021 (“Position on Return to Afghanistan”) and confirmed in the detailed “Country Policy and Information Note Afghanistan: Fear of the Taliban” published by the Home Office in October 2021 (see paragraphs 2.4.7, 2.4.8, 5.1.1, 5.2.4, 5.2.5) and April 2022 (see paragraphs 2.4.4, 2.4.9, 2.5.1, 5.7.4, 6.5.3, and section 6.9).

The April 2022 Note states, at paragraph 6.5.3:

In a section on lawyers, judges and human rights defenders, the April 2022 Note reports as follows:

The 100 or so female Afghan judges referred to above were evacuated from Afghanistan to Greece, from where they were assisted to re-settle in countries including the UK, the USA, Germany, Iceland, Ireland, and Australia. The Defendants estimated that a small number came to the UK, and they were all or mainly among the group who had been identified during Operation Pitting, but had not been successfully evacuated.

Mr Foxley summarises, at paragraph 69 of his witness statement, the potential risk of Afghan judges being targeted by the Taliban where one or more of the following factors are present:

There are three tiers of courts – the Primary Courts, the Appeal Courts, and the Supreme Court. Primary Courts are courts of first instance, and exist in each District. Appeals from Primary Courts are heard at the Appeal Court designated for the relevant provincial area.

The Supreme Court is the final appellate court for the entire country, comprising nine members, presided over by the Chief Justice. It is divided into divisions, according to subject-matter. The Supreme Court also has an original jurisdiction in various matters including matters pertaining to the constitution and judicial review.

The Supreme Court is also the institution that employs the judiciary of Afghanistan, and has responsibility for the appointment and transfer of judges to all courts, and for their training. Thus, Afghan judges refer to themselves as “Judges of the Supreme Court of Afghanistan”, whatever level of court they sit in.

AZ is an Afghan national, born in 1979. He is married and has six children, aged between 6 and 17 years old. His elderly mother lives with the family.

AZ has a law degree and he qualified as a judge in 2008. Later in his career, he attended a lengthy judicial training course in Kabul with some 130 judges, organised by the Supreme Court. He has also attended various training courses organised by other bodies, such as the United States Agency for International Development, the Max Planck Institute, and the Norwegian Refugee Council.

He has sat in the Primary Court throughout his career, mainly hearing criminal cases. He has worked in Nangarhar province and Nuristan province. In Jalalabad (Afghanistan’s third largest city), he sat in the public security court. A number of judges there had been killed by the Taliban, and he felt he would be safer in a more rural area, so he requested and was granted a transfer.

Most recently he has been working in the Spinghar district in Nangarhar. At the beginning of 2021, there was an increase in the number of targeted killings carried out by the Taliban and ISK, including three judges who were his colleagues. He was warned by the Supreme Court in Kabul that he was on a Taliban list of planned killings, and he was given a gun and two armed bodyguards.

AZ believes that his life is in danger because of the decisions he has made as a judge over the course of his career. He has made over 40 decisions in counter-terrorist cases, mostly against Taliban and ISK members. He has passed lengthy prison sentences for terrorist offences on members of the Taliban who have now been released from prison and hold positions of power and influence. Since the Taliban gained power, he has received direct threats to his safety, and he is now in hiding, and no longer able to work. He has no future in Afghanistan.

AZ applied for leave to enter the UK under ARAP, for him and his dependants, on 26 October 2021. AZ’s solicitors wrote their first letter before action on 27 October 2021, enclosing his witness statement and supporting documentation. They applied for a grant of leave under ARAP, and in the alternative, under the Afghan Citizens Resettlement Scheme (“ACRS”) or LOTR.

On 17 November 2021, the Government Legal Department (“GLD”) sent a letter in reply, accompanied by an FCDO Decision Maker’s Assessment dated 5 November 2021, which found that AZ was not eligible under ARAP. The letter stated:

The letter advised that the ACRS was not yet in force and indicated that would not have an individual application process, but rather eligible people would be prioritised and referred in co-operation with UNCHR, international parties and NGOs in the region.

As to LOTR, the letter stated as follows:

In their letter of 3 December 2021, AZ’s solicitors challenged the GLD’s refusal to accept the application for LOTR by letter, stating:

The GLD replied, in their letter of 14 January 2022, as follows:

In the letter of 3 December 2021, AZ’s solicitors also challenged the refusal under ARAP, and referred to a report by Mr Foxley, in support of their submission that senior judges, such as AZ, had made a meaningful contribution to the UK Government’s work, and that Category 4 had been too narrowly interpreted and applied.

The GLD, in its letter of 10 December 2021, responded as follows:

S is a 57-year-old Afghan female judge. She is married with two children aged 19 and 17 years old. She is a member of the International Association of Women Judges (“IAWJ”) and its affiliated association, the Afghan Women Judges Association (“AWJA”).

S served as a judge in the Juvenile Court of Kabul City, which is a Primary Court. Over the course of her career, in various courts, she investigated criminal and national security cases, including cases involving the Taliban and Daish. Her family have been the target of Taliban violence as a result of her judicial work. In 2004, her husband was abducted, beaten and interrogated about S’s whereabouts, when she was investigating a case against the Taliban. Some years later, S’s husband became paralysed.

When the Taliban took power in Kabul, S was prevented from returning to her judicial office to retrieve her documents and records, due to the risk. Her neighbours informed her that the Taliban had come to her neighbourhood, looking for a female judge. She and her family went into hiding and have changed location more than once. She has received calls and messages, from unknown numbers, asking for her location. The Supreme Court has sent a letter warning of terrorist attacks against judges by the Haqqani Network. She fears for her life and for the lives of her family.

S states that she completed an online ARAP application on 24 September 2021. The Defendants have not been able to trace it, but have decided to determine it nonetheless.

On 9 September 2021, her solicitors Mishcon de Reya wrote to the Defendants asking for their clients (who were 27 Afghan judges and lawyers, including S), to be issued with entry visas relying on the ARAP, ACRS and LOTR routes, in the alternative. On 20 September 2021, the GLD sent a general reply refusing the requests.

On 8 October 2021, Mishcon de Reya sent a pre-action letter to the Defendants on behalf of S, together with a bundle of evidence. On 27 October 2021, the Defendants refused S’s ARAP application, enclosing the FCDO Decision Maker’s Assessment, dated 19 October 2021. The reasons given for refusal in the Assessment were as follows:

In the letter of 27 October 2021, the Defendants advised that ACRS was not yet in force, and in any event, it would not have an individual application process.

In the letter of 27 October 2021, the Defendants declined to make a decision on S’s application for LOTR, stating:

S’s solicitors challenged the Defendants’ conclusions in respect of ARAP in their letter of 12 November 2021. On 24 November 2021, the Defendants sent a detailed response, maintained their decision, for reasons similar to those given to AZ in the letter of 10 December 2021, referred to above.

ARAP was introduced jointly by the Secretary of State for Defence (“SSD”) and the SSHD with effect from 1 April 2021. Its stated purpose was to “offer relocation or other assistance to current and former Local Employed Staff [“LES”] in Afghanistan to reflect the changing situation in Afghanistan”.

ARAP replaced the Intimidation Policy which was introduced in 2010. The ex-gratia scheme, which provides redundancy payments, will continue alongside ARAP until November 2022, when it will close.

ARAP is routinely updated. The relevant version of the policy at the date of the decisions under challenge was 15 September 2021. It provided:

The only material amendment from the 1 April 2021 version was that, under Category 4, the second sentence referred to “those who worked in meaningful enabling roles for HMG” whereas in this version the word “for” had been replaced by “alongside”.

The wording of Category 4 was significantly revised on 16 February 2022 to read as follows:

ARAP was also introduced into the Immigration Rules (“IR”) from 1 April 2021. The 6 October 2021 version was in place at the date of the decisions concerning the Claimants. It read as follows:

Neither the April 2021 nor the September 2021 versions included provision for those who were not employed by the UK Government. Such provision was introduced for the first time in a version introduced on 14 December 2021. The material provision is as follows:

After the end of Operation Pitting, the Home Office published its “Afghanistan Resettlement and Immigration Policy Statement” dated 13 September 2021.

Paragraph 2 of the Introduction stated:

Paragraph 17 confirmed that the ARAP scheme remained open to eligible applicants who would be given indefinite leave to remain (“ILR”).

Paragraphs 21 – 27 introduced the new ACRS (see below).

Paragraph 44 made clear there was “no change” to the Home Office’s “longstanding policy that a person can only claim asylum from within the UK. We will not accept asylum claims at our Embassies, High Commissions or VACs overseas or otherwise; whether by online application or through other correspondence.”

ACRS was described in the Afghanistan Resettlement and Immigration Policy Statement as follows:

ACRS was formally opened on 6 January 2022.

The SSHD, at all times, is entitled to consider the grant of LOTR. Such power derives from section 3 of the Immigration Act 1971: R (Munir) v Secretary of State for the Home Department [2012] UKSC 32 [2012]; 1 WLR 2192, at [41].

The SSHD from time to time publishes guidance as to how to make a LOTR application. Version 1.0 of the guidance “Leave outside the Immigration Rules”, which was published on 27 February 2018, remained in force at the date of the decisions in the Claimants’ cases.

The guidance sets out the principles of LOTR as follows:

The process to be followed for an overseas application is as follows:

A revised version 2 of the guidance was issued on 9 March 2022. It contains new guidance in respect of ARAP:

The test for irrationality was described by the Divisional Court (Leggatt LJ and Carr J.) in R (Law Society) v Lord Chancellor [2019] 1 WLR 1649:

In R v Parliamentary Commissioner for Administration ex parte Balchin [1998] 1 PLR 1, Sedley J. described “irrationality” as “a decision which does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic”.

Inconsistency, unequal treatment, unfairness or arbitrariness in public decision-making are contrary to good administration, and may lead to a conclusion that a decision is irrational. However, such flaws are not to be treated as free-standing grounds for judicial review.

This distinction was clarified by the Supreme Court in R (Gallagher Group Ltd) v Competitions and Markets Authority [2018] UKSC 25, [2019] AC 96, per Lord Carnwath, as follows:

In R (Patel) v Secretary of State for the Home Department [2012] EWHC 2100 (Admin), Mr John Howell QC (sitting as a Deputy High Court Judge) found unlawfulness by reason of failing to provide a ‘rational reason’ for treating the Claimant less favourably than others (at [141]). He said, at [114]:

In R (Hussain) v Secretary of State for the Home Department [2012] EWHC 1952 (Admin), Mr James Dingemans QC (then sitting as a Deputy High Court Judge) said, at [46]

Where there are divergent decisions in materially the same situations, the Court is required to ‘consider with the greatest care how such a result can be justified as a matter of law’: R v Department of Health, ex p Misra [1996] 1 FLR 128 at 133 and see also R (Gurung) v Ministry of Defence [2002] EWHC 2463 (Admin), a successful challenge on rationality grounds by Nepalese nationals and survivors of Japanese prison camps from their exclusion in the ex-gratia compensation scheme, having served in a Gurkha brigade.

As a general principle, a person’s case falls to be considered according to the policy and criteria applicable as at the date of decision (Odelola v SSHD [2009] UKHL 25; [2009] 1 WLR 1230).

In R (Help Refugees Ltd) v Secretary of State for the Home Department [2018] EWCA Civ 2098, Hickinbottom LJ held at [72]:

The operation of an unpublished policy is procedurally unfair and unlawful: R (Lumba) v SSHD [2011] UKSC 12.

It is well-established that procedural unfairness is a distinct ground for judicial review (see Gallagher, per Lord Carnwath at [33]).

The Claimants referred to R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 which concerned a challenge to the procedures adopted by the SSHD before and after the closure by the French Government in October 2016 of the tent encampment in Calais, known as ‘the jungle’. The process was expedited in light of the time limitation for the demolition. Singh LJ held:

It is convenient to consider Grounds 1 and 2 together because of the overlap between them.

In S’s case, Ground 1 initially challenged the Defendants’ construction of Category 4 of ARAP on two grounds. First, that the decision-maker had erred by applying a test of ‘heightened risk’. Second, that there was no requirement that the risk must be as a consequence of engagement with the UK. Lane J. refused permission on this ground, and the Claimant did not pursue it further, substituting an amended Ground 1.

Both Claimants challenged the refusals in their cases on the ground that they were inconsistent with decisions that the Defendants made during Operation Pitting in respect of other comparator judges whose circumstances were not materially different. They submitted that the Defendants provided no rational reason as to why they had not been granted leave under ARAP or LOTR, on the same criteria and in the same way as the comparator judges. The Claimants referred to the revisions to the wording of the ARAP policy in February 2022, and to the ARAP IR in December 2021, and contended that they resembled the Pitting LOTR criteria.

The Claimants did not pursue any challenge in respect of the ACRS, presumably because the Claimants are not currently eligible under its “gateways”.

The Claimants submitted that the Defendants’ policies and processes were incoherent and unfair. The criteria adopted during Operation Pitting were not published, and so the Claimants’ failure to apply for leave during Operation Pitting could not be a reason to treat them less favourably. The inconsistent and arbitrary use of LOTR during Operation Pitting favoured those who had the benefit of lobbying by influential persons on their behalf.

Both Claimants submitted that the Defendants’ refusal to accept their applications for LOTR by using the ARAP online application form, when there was no other visa form which remotely matched their circumstances, was procedurally unfair and irrational. The Claimants and their dependants (including AZ’s six young children and elderly mother and S’s paralysed husband) could not reasonably be expected to provide biometrics at a Visa Application Centre, when the British Embassy in Kabul was closed, nor to travel to another country without being detected by the Taliban.

In response, the Defendants submitted that the decisions made were lawful. They were a legitimate exercise of discretion by the Defendants, applying the relevant policies. The Defendants acknowledge that the Claimants are at risk of harm from the Taliban because of their judicial roles. However, none of the applicable policies operate on the basis that risk alone creates an entitlement to enter the UK. The extent of the UK’s responsibility to various individuals or cohorts was a matter for the Defendants to determine. Afghan judges may be eligible under ARAP or LOTR, but whether they are in fact eligible depends upon a case-specific evaluation of the individual facts.

In regard to ARAP, the decision-maker’s view on the specific facts of the application by Judge W, a judge in the Anti-Terrorism Court in Kabul, was that the criteria for relocation under ARAP were satisfied. The facts of Judge W’s case are distinguishable from the facts of the Claimants’ cases.

In regard to LOTR, “Operation Pitting LOTR” was the term used to refer to the immigration leave granted to those evacuated under Operation Pitting. It was plainly lawful for the Defendants to adopt specific criteria and processes for the emergency evacuation from Afghanistan, so as to utilise the spare capacity in UK military aircraft leaving Kabul during the short period of time available. Equally, it was lawful to discontinue that approach once the evacuation had ended, whilst taking into account any commitments that had been made.

The cases of the comparator judges who were granted LOTR are distinguishable from the Claimants, as they were called forward for evacuation during Operation Pitting, but were unable to board an aircraft. As the Claimants have not made an application for LOTR in the prescribed manner, no substantive decision has yet been made to refuse the Claimants LOTR.

As Operation Pitting has concluded, the SSHD is entitled to require the Claimants to follow the normal procedure for a LOTR application, by completing the visa form which most closely matches their circumstances. The ARAP application form is not acceptable because ARAP applications are assessed by the MoD, not by the SSHD. Before the application is considered, Claimants must either attend a Visa Application Centre to provide biometrics or obtain a waiver or deferral of that requirement. Since the date of the decisions in the Claimants’ cases, the forms had been modified so as to add an option to seek a deferral of the biometrics requirement.

The Defendants accept that some Afghan judges have been granted leave to enter the UK under ARAP. A letter from the GLD, dated 4 February 2022, stated as follows:

Judge W was granted leave to enter the UK under ARAP during Operation Pitting. He has since been granted indefinite leave to remain in the UK. He explains in his witness statement that he was a judge in the Anti-Terrorism Court in Kabul, hearing cases of detainees who had been arrested under terrorism law. His identity was well-known. Like all judges in Afghanistan, he was employed by the Supreme Court. He did not work directly or indirectly for the UK Government or military. He and his fellow judges were invited to the British Embassy and elsewhere to attend events and training seminars, and they met British officials on those occasions. The UK Government also provided logistical and operational support for the Anti-terrorism Court in Kabul.

When the Taliban came to power, Judge W felt very vulnerable and feared for his life. He and his fellow judges in the Anti-Terrorism Court telephoned the Counter-Terrorism team at the British Embassy, who they knew, and asked them for help. They were invited to complete the ARAP application form, and all of them were called forward for evacuation. They were told by the Counter-Terrorism team at the British Embassy that their work had helped the UK mission in Afghanistan. Upon arrival in the UK, he and his fellow judges were taken to meet the Foreign Secretary, and they were informed by the British officials they had previously met in Kabul that they were granted visas because they worked in the Anti-Terrorist Court.

Mr Hall explained the Defendants’ reasoning at paragraph 46 of his witness statement:

The Defendants declined to disclose individual details of the 13 judges, and the Claimants decided not to pursue their CPR Part 18 application for further information on this issue, as that would have delayed the expedited hearing of their claims.

The 1 April 2021 version of the ARAP policy was in force when the decision was made in Judge W’s case. The 15 September 2021 version of the ARAP policy was in force when the decisions in the Claimants’ cases were made. There are some differences in the wording of Category 4, in particular, the April version referred to “those who worked in meaningful enabling roles for HMG” whereas the September version substituted the word “alongside” in place of the word “for”.

When considering the terms of the ARAP policy, it is important to bear in mind that it is primarily aimed at local staff and other personnel employed directly by the UK Government, as expressly stated on the face of the policy. It replaced other policies which were also directed at locally employed staff. It originated as a means of showing commitment to those who worked for and supported the UK Government, and reflects responsibilities owed by the UK to individuals in Afghanistan as a result. Category 4 also acknowledges the importance of work carried out by Afghan individuals alongside the UK Government, rather than as a Government employee.

In my judgment, Mr Hall is correct in saying that an Afghan judge may be eligible for ARAP, under the terms of the scheme, but that the status of being an Afghan judge is not of itself sufficient to establish eligibility. Eligibility will depend on a case-specific evaluation of the individual facts to see whether the criteria are met.

In the case of Judge W, and his fellow judges at the Anti-Terrorism Court in Kabul, the Defendants appear to have been satisfied that they met the criteria in Category 4 in the ARAP policy because of their role in presiding over the Anti-Terrorism Court, which benefited the UK Government. The judges had a working relationship with UK officials in Kabul, in particular, the Counter-Terrorism Unit which arranged for their sponsorship under ARAP. The UK Government provided the Anti-Terrorism Court with logistical and operational support, and organised training and meetings for the judges. Their roles were public and high profile and they were at risk from the Taliban.

I was referred by Ms Giovannetti QC to the judgment of Lieven J. in R (JZ) v Secretary of State for the Home Department & Ors [2022] EWHC 771 (Admin), at [11], where she quoted from the decision letter, written by the former head of the Counter-Terrorism team at the British Embassy in Kabul who said:

However, whilst Kabul was the centre of the UK’s counter-terrorism mission in Afghanistan, the evidence indicates that British engagement with the justice system, and anti-terrorist measures, were not limited to Kabul (see paragraphs 17 to 23). In my view, decision-makers should not assume that Afghan judges deciding anti-terrorist, anti-narcotics, and security cases were not contributing to the UK mission merely because they were working in the provinces, rather than Kabul. Each case deserves careful examination on its own facts.

The decision letter of 17 November 2021 distinguished AZ from the judges in the Anti-Terrorism Court, pointing out that they were judges “who were publicly known to have co-operated with the UK, or had been involved in highly sensitive cases of particular UK interest (including national security), and were at significant risk as a result”.

AZ was a judge in a Primary Court of first instance, who worked in provincial areas, without any connection to the UK Government’s Counter-Terrorism mission in Kabul.

The Defendants concluded, in the decision-maker’s assessment of 5 November 2021, and the covering letter of 17 November 2021, that AZ had not demonstrated any link to a UK Government Sponsoring Unit, as required by the policy. His case was considered by the FCDO Head of Counter-Terrorism Afghanistan Task Force which would be the unit responsible for sponsoring Counter-Terrorism judges under Category 4 of ARAP, and so would be able to identify them. AZ had not been involved in cases of special UK interest. AZ had not received training or other support from the UK Government. Based on the evidence reviewed, it did not appear that he made a material contribution to the UK Government’s mission in Afghanistan, and it was not apparent that UK operations would have been adversely affected without his work.

Thus, the Defendants concluded that the accepted threat to AZ from the Taliban was not a consequence of working with or alongside the UK Government.

In my judgment, the Defendants’ decision in respect of AZ cannot be characterised as an irrational application of the ARAP policy on grounds of inconsistency. There were distinguishing factors between AZ and the judges of the Anti-Terrorist Court in Kabul, which explained and justified the decision to grant leave to them, under the terms of the ARAP policy, but to refuse it to AZ.

Prior to the Taliban seizing control, S was a judge in the Juvenile Court in Kabul City. She has previously investigated criminal and national security cases, including cases involving the Taliban and Daesh/ISKP. However, she has not worked with the UK Government in any capacity, or had any connection with UK Government officials, and so it was not possible to identify an HMG sponsoring unit for her. She did not receive training or support from the UK Government. Based on the evidence reviewed, the decision maker concluded that it did not appear that she worked in a role that made a material contribution to HMG’s mission in Afghanistan, or that UK operations would have been adversely affected without her work. It was accepted that S was at risk, but the decision-maker was not satisfied that the threat to S was heightened as a consequence of working with or alongside the UK.

In my judgment, there were distinguishing factors between S and the judges of the Anti-Terrorist Court in Kabul which explained and justified the decision to grant leave to them under the terms of the ARAP policy, but to refuse it to S. Therefore, the Defendants’ decision in respect of S cannot be characterised as an irrational application of the ARAP policy on grounds of inconsistency.

In my account of Operation Pitting, at paragraphs 9 to 17 above, I have described the scheme for evacuating at-risk Afghans to the UK which became known informally as “Pitting LOTR”.

Mr Hall explained that the FCDO mailboxes received 175,000 communications from 13 to 31 August 2021. Staff did not have the capacity to fully scrutinise or prioritise all these applications in the short time available. As Mr Hall fairly accepted, at paragraph 31 of his witness statement:

The process on the ground has since been described by junior FCDO staff as “disorganised”, “slow”, “no ability to access the systems, often just to find out the very basics in a very unstructured and chaotic environment” with “thousands of emails going unread” or not actioned (see the witness statement of Ms Kucharikova, dated 24 January 2022, which exhibits a transcript of a BBC interview).

In my judgment, as it was impossible to assess and prioritise the huge numbers of people seeking evacuation from Afghanistan, in the limited time available, the selection of persons for Pitting LOTR was likely to be inconsistent and arbitrary, despite the commendable efforts of the staff involved. It is also apparent from the evidence that 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 as it was likely that others who did not have influential sponsors were deserving too. The Claimants did not have anyone to lobby for them and they were unaware that they could be eligible under Pitting LOTR, as this was not a published policy.

The Claimants have identified five comparator judges who were called forward during Operation Pitting, and later granted LOTR. In each case, the FCDO was lobbied on their behalf by the UK Afghanistan Women Judges Association (“UKAWJA”). Under the auspices of the IAWJ, the UKAWJA had set up an online mentoring scheme for female judges in Afghanistan, which is how they came to know the Afghan judges. According to the Defendants, a total of twelve judges and one prosecutor were evacuated to the UK, following lobbying by the UKAWJA.

The details of five of those judges are summarised below:

Judge X was appointed as a judge in 2010, and worked most recently in the Juvenile Violations Primary Court in Kabul, where she presided over trials against members of the Taliban. She did not have any direct or indirect contact with the UK Government. She had received death threats from the Taliban before they seized power. She and her family were unable to enter Kabul airport in time to be evacuated under Operation Pitting. The International Bar Association (“IBA”) helped them to flee to Greece, from where they obtained visas to enter the UK on 7 December 2021.

Judge Y worked in the Primary Court in Kabul, hearing family and civil law cases. She did not have any direct or indirect contact with the UK Government. She received a threatening telephone call from the Taliban, after Kabul fell. She and her family were unable to enter Kabul airport in time to be evacuated under Operation Pitting. The IBA helped them to flee to Greece, from where they obtained visas to enter the UK on 21 October 2021.

Judge A worked in the Primary Court in Kabul, hearing family and civil cases. She did not have any direct or indirect contact with the UK Government. She and her family were very fearful after the Taliban took power. She and her family were unable to enter Kabul airport in time to be evacuated under Operation Pitting. The IBA helped the family to flee to Greece, from where they obtained visas to enter the UK on 25 November 2021.

Judge B worked in the Primary Court in Kabul, hearing commercial cases. She did not have any direct or indirect contact with the UK Government. She and her family were unable to enter Kabul airport in time to be evacuated under Operation Pitting. The IBA helped the family to flee to Greece, from where they obtained visas to enter the UK on 12 November 2021.

Judge C worked in the Military Criminal Division of the Primary Court at Parwan, and she also heard family and civil cases. She did not have any direct or indirect contact with the UK Government. She had previously been threatened by the Taliban, and feared for her safety after the Taliban took power. She and her brother went to the Baron Hotel and were evacuated from Kabul airport on a UK military plane to Dubai, and then on to Birmingham.

In my judgment, 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 to the Claimants. They were all judges who were implementing the rule of law in Afghanistan, consistently with the UK’s mission, but none of them had any direct or indirect connection with the UK Government. Their membership of the IAWJ and their participation in the mentoring scheme, neither of which are UK Government schemes, could not rationally justify the grant of LOTR to them, but refuse it to the Claimants. In any event, S was also a member of the IAWJ and its affiliated association, the AWJA. They were all at risk from the Taliban because of their occupation. As female judges they were at greater risk than AZ. On the other hand, AZ’s anti-terrorist work had made him a Taliban target to a much greater extent than some of the comparator judges, particularly those sitting in civil jurisdictions. 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. This illustrates the inconsistency and arbitrariness of Operation Pitting, and the extent to which lobbying and connections influenced the selections made, instead of the application of fair and objective criteria.

In my view, both S and AZ could have been eligible under Pitting LOTR criteria, if their names had been put forward. In their work as judges, hearing counter-terrorism and national security cases, they contributed to the UK Government’s objectives in Afghanistan to promote the rule of law, and to combat terrorism (albeit not working for or alongside the UK Government, so as to meet the ARAP criteria). In doing so, they placed themselves and their families at considerable personal risk. That risk has heightened since the Taliban seized power. They and their families are in hiding, but realistically they will be found by the Taliban at some point. There is verified evidence that other judges have been summarily executed by the Taliban.

However, the Pitting LOTR criteria are no longer in operation as they were only introduced for the purposes of Operation Pitting, which has now concluded. The Claimants’ applications had to be considered in accordance with LOTR policy as at the date of the decisions made in their cases in October and November 2021 respectively. However, I consider that factors such as their role in promoting the rule of law, and the risks to their safety arising from their work as judges, will still be relevant in any assessment of their cases. In my view, the factors set out at paragraphs 124 and 125 above are also relevant considerations to take into account in the Claimants’ favour, in any substantive consideration of their applications for LOTR.

Insofar as the Afghan Girls Development Football team were treated in line with Operation Pitting cases, despite their evacuation taking place in November 2021, this demonstrates the wide discretion which the SSHD enjoys under LOTR. No meaningful comparison can be drawn between the position of the football team and the Claimants.

The relevant policy was described in version 1.0 of the guidance “Leave outside the Immigration Rules”, published on 27 February 2018. It explains that the SSHD had power to grant leave on a discretionary basis, outside the IR, exercising the residual discretion under the Immigration Act 1971. The discretion will be applied in different ways depending on the circumstances of the claim and the applicant’s circumstances.

The guidance requires applicants “to apply on the application form for the route which most closely matches their circumstances ….. Any compelling compassionate circumstances they wish to be considered …. must be raised within the application for entry clearance on their chosen route.”

I agree with the Claimants’ submission that there is an obvious reason why LOTR policy directs that applications be made on the form for the visa type which most closely matches their circumstances. That is because any compelling compassionate circumstances will be decided by reference to the IR which most closely matches their circumstances, and the criteria in the rules which they are unable to meet. The visa route which most closely matches their circumstances is ARAP, but their applications for LOTR using the ARAP online form have been rejected. The explanation given is that ARAP is not principally an immigration policy. ARAP applications are initially screened by officials from the MoD, who are best placed to identify who worked for or with the UK Government in Afghanistan, whereas the grant of LOTR is a decision for the SSHD, and so applications have to be screened by Home Office officials. It would delay the MoD in dealing with valid ARAP applications if they had to filter out LOTR applications and refer them to the Home Office. Therefore the Claimants were advised to apply via the standard online visa routes e.g. for those seeking to visit, study, or work in the UK or join family members.

The online visa routes do not remotely match the Claimants’ circumstances. If they made false entries on such forms, they would be exposed to the risk of permanent refusal of entry on mandatory grounds and even criminal prosecution. Any attempt to enter the UK on false pretences in order to apply for asylum would be illegal. In my judgment, it is irrational to put law-abiding legal professionals in a position where they have to falsify their applications, for the sake of their own and their family’s safety.

The option suggested by the GLD, namely, that they enter “not applicable” in answer to the questions on the form, is misleading by omission. It also carries the clear and grave risk that their 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.

In my judgment, the Defendants’ justification is irrational. ARAP is in the IR, so it cannot sensibly be said that it is not an immigration policy. Whilst it may be inconvenient for the MoD officials to have to refer LOTR applications on to the Home Office for consideration, I consider it is irrational and disproportionate for the Defendants to prioritise their own administrative convenience in this way when it is acknowledged that the Claimants are at risk of serious harm at the hands of the Taliban.

I note with concern that the revised LOTR policy which came into effect on 9 March 2022, after the decisions were made in the Claimants’ cases, expressly excludes applications for LOTR using the ARAP online form. In my view, this policy is at risk of a future legal challenge for the reasons I have set out above.

The Claimants were also unable to proceed with their applications for LOTR in October and November 2021 because of the general rule that an application is not complete, and will not be considered, until biometrics are provided at a Visa Application Centre. However, the British Embassy in Kabul closed in August 2021, and since then there has not been a Visa Application Centre in Afghanistan. In my view, the Claimants and their dependants (including AZ’s six young children and elderly mother, and S’s paralysed husband) had a strong case for a deferral of the requirement to provide biometrics until such time as they could safely reach a Visa Application Centre in a third country, without being detected by the Taliban. Under regulation 5 of the Immigration (Biometric Registration) Regulations 2008, the SSHD has power to waive or defer biometrics testing. However, the application form in force at the time required applicants to identify the Visa Application Centre at which they intended to provide their biometrics, and made no provision to apply for a waiver or deferral. In my view, this was irrational and procedurally unfair.

The GLD advised the Claimants to resolve this problem by making a false entry on the form, by naming the Visa Application Centre at which they intended to provide biometrics, when they knew they could not do so. They were advised that they should then “contact the Home Office and inform it of any difficulties they face enrolling their biometrics”. The GLD advised that “using the form in this way … will not be used as adverse evidence in any decision-making process”. In my judgment, it was irrational for the GLD to expect the Claimants to take the risk of making a false entry on the form, given the penalties for making false statements in immigration applications, on the basis of such a limited and unenforceable assurance contained in a solicitor’s letter. It was far from clear that Home Office officials would permit a subsequent amendment to the application to correct the false statement and apply for waiver/deferral instead, without any authorised procedure for doing so.

In my view, the rational and fair course of action was for the SSHD to amend the online form so as to include the option of applying for a waiver/deferral of biometrics testing. The SSHD has now done this, but only after the decisions in the Claimants’ cases were made.

Regrettably, the Defendants’ refusal to consider the Claimants’ applications for LOTR, on procedural grounds, has resulted in delay, leaving the Claimants in a dangerous situation as they are at risk of harm from the Taliban.

The two issues identified at paragraph 2 above were as follows:

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 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).

On the first issue, the claims for judicial review fail in respect of the Claimants’ applications under ARAP, for the reasons set out above. In respect of LOTR, although I found that many of the Claimants’ allegations were well-founded, no order for judicial review has been made. The reason is that, because the SSHD unlawfully refused to consider the Claimants’ applications for LOTR, there were no substantive decisions on LOTR which were capable of being quashed.

On the second issue, the claims for judicial review of the SSHD’s refusal to consider the Claimants’ applications under LOTR, on procedural grounds, succeed, for the reasons set out above. In the case of AZ, the refusal was communicated in the GLD’s letter of 17 November 2021 and confirmed in the letter of 14 January 2022. In the case of S, the refusal was communicated in the letter of 27 October 2021. Those decisions are to be quashed.

It will now be for the SSHD to determine how the Claimants’ applications for LOTR should be dealt with, both procedurally and substantively, in the light of this judgment.