JZ v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

JZ argues that the information sought in respect of other judges relocated under ARAP and Pitting LOTR is “manifestly relevant” to the court’s examination of his Ground 1 in respect of consistency of decision-making and coherence of the system. The Defendants should have provided the information about the decision-making in the cases of the other judges in accordance with the duty of candour.

JZ has provided the court with comparator evidence in relation to one judge who was relocated under ARAP (Judge W) and five judges who were granted Pitting LOTR (Judges A, B, C, X and Y). He has therefore done all he can to provide evidence to the court on the consistency issue, notwithstanding the extraordinary circumstances he finds himself in. The Defendants are aware of the identities of these comparator judges and have control and possession of further information about them and the other judges within the ARAP and Pitting LOTR cohorts.

This is not a fishing expedition: he has raised an arguable case that the Defendants’ systems and decisions for ARAP/Pitting LOTR are infected by inconsistency or incoherence and the material falls within the duty of candour.

A picture had emerged during S and AZ suggesting that judges working in the Anti-Terrorism courts in Kabul, including Judge W, were generally considered to fall within ARAP Category 4 (see S and AZ at [108]). However if this was the case, the Defendants should provide evidence to this effect, not least because JZ had worked in that court. It was therefore incumbent on the Defendants to explain why he had been treated differently.

Further the request is proportionate. The number of judges in question is relatively small: the Defendants’ evidence is that 13 members of the Afghan judiciary have been relocated to the UK under ARAP and 12 under Pitting LOTR. Further information about these groups should be capable of being collated relatively quickly and it was not uncommon at the end of a judicial review hearing for the judge to request a modest amount of further information. Indeed the same had occurred at the end of the S and AZ hearing before Lang J. Redactions could be used to reduce the risk of jigsaw identification of the judges and a public interest immunity application could be made if need be.

The requests were made within a reasonable timescale given the fast-moving nature of the claim. It was sight of evidence underpinning the Foreign Affairs Committee report, Missing in Action: UK leadership and the withdrawal from Afghanistan on 24 May 2022 which had framed the way in which the further information was sought. It was appropriate to obtain the information and then decide on next steps but further submissions or a short hearing could be arranged if need be.

The Defendants’ position is that they are not obliged to provide further information about the ARAP/Pitting LOTR judges as the same is not relevant to the claim and/or will not assist the court in resolving the issues: Gallaher makes clear that equality of treatment is not a free-standing ground for judicial review; each ARAP or Pitting LOTR case had to be determined on its own facts and the court will not be assisted by knowing why decisions were reached in particular cases. In any event, sufficient evidence had already been provided in the Defendants’ witness statements. Lang J had been able to make her decision in S and AZ without responses to a similar Part 18 request and this court should do the same.

The requests should have been made much earlier: the claim had been issued on 30 November 2021 and the evidence from Judges X and Y provided in December 2021. A request for some information of this nature had been made in December 2021 and this had been responded to on 4 February 2022. The Defendants’ grounds had been served on the 26 April 2022 and the substantive hearing of the claim was originally listed on the 24/25 May 2022. The delay in making the Part 18 request had not been properly explained, not least as the evidence said to be pertinent from the Missing in Action report had been published on 27 January 2022.

It was unprecedented for a Part 18 order to be made at the end of a full hearing. The full hearing was not a “dress rehearsal” of the issues. The Claimants’ conduct was not consistent with the procedural rigour that was important in judicial review proceedings and was unsustainable. Any information provided pursuant to this request would likely lead to yet further questions and render the litigation unmanageable.

Further, there were a series of privacy and security concerns about making disclosure of the details about individual judges.

The Part 18 application includes questions numbered 2-16. I have borne the competing submissions carefully in mind in considering each of the questions.

My overall assessment is that some, but not all, of the questions set out in the application should be answered by the Defendants. I consider that the court has sufficient information available to it about Judge W, the Pitting LOTR judges including A, B, C, X and Y and the Defendants’ processes generally, such that no Part 18 order should be made in respect of these topics. However an order is appropriate about the decision-making in respect of the ARAP judges other than Judge W. The application in this respect is not a fishing expedition or an attempt to identify a new issue. Rather it is relevant to the main issue that is already live in the claim, namely the argument of inconsistency of decision-making which underpins Ground 1. The information should be disclosed in accordance with the Defendants’ duty of candour.

I am conscious that the issues in S and AZ were resolved without this information. However the Claimants in that case chose not to pursue their Part 18 application, as that would have delayed the expedited hearing of their claims: S and AZ at [104]. JZ and KBL have taken a different approach, as they are entitled to do. I note that Lang J granted the Part 18 application in KBL in part.

With respect to the factors set out at the White Book, paragraph CPR 18.1.10, the likely benefit which will result if the information is given is that the court will have greater visibility on the decision-making with respect to this cohort of judges so as to inform its approach to Ground 1. The likely cost will be relatively limited given the focussed nature of the requests and the Defendants’ financial resources are likely to be sufficient to enable them to comply with the order.

I have considered whether each of the proposed questions is suitably concise and strictly confined to matters which are reasonably necessary and proportionate for the purposes of PD 18, paragraph 1. I have reformulated them in some respects to better achieve these aims.

I have also modified some of the questions in the exercise of the court’s power to make a Part 18 request of its own initiative, in order to reflect the issues that emerged during the hearing, around the location where judges served and the dates when they served.

I am very conscious of the context of this claim and of the privacy and security issues raised by the Defendants. However, at least in the first instance, I would hope that anonymity, redaction and gisting will enable the questions to be answered satisfactorily and reduce the risk of jigsaw identification of the judges. A public interest immunity application could be made if need be. I note that these issues did not prevent Lang J making Part 18 orders in KBL.

The Part 18 application has been made very late in the proceedings. I did not find the Claimants’ argument that it flowed from the Missing in Action report persuasive. Rather, I struggled to see why the application had not been made earlier given the central nature of the consistency issue. I accept that it is unusual to consider and make a Part 18 order at the end of a full hearing. However I note that under CPR 18.1 the court may make an order for further information “at any time” and that Lang J required further information at the end of the S and AZ hearing, albeit not by way of Part 18 order.

Ultimately I consider that provision of this information is necessary in order to resolve the matter fairly and justly; that the Claimant’s conduct with respect to the application is likely to be relevant to the decision as to the costs of the application; and that the case will need to be, and can be, robustly case managed once the questions are answered.

I set out below each of the proposed questions, the Defendants’ response and my decision on whether an order should be made in respect of the question.

Request: Please confirm in respect of the 13 Judges relocated to the UK under ARAP: (a) What level/branch/division of Court within the Afghan judicial system did these Judges work in? (b) What was the nature of their judicial work and what sort of cases did they preside over in Afghanistan? Is it correct that they were part of the criminal justice system in Afghanistan? (c) What does ‘work directly alongside HMG’ mean for these 13 Judges? (d) How did the Defendants assess whether these 13 Judges made a ‘material contribution to the UK’s national security objectives in Afghanistan?’ (e) What date were these 12 Judges known to the FCDO/MoD and Home Office? (f) How did these 12 Judges become known to the FCDO/MoD and Home Office?

Response: Irrespective of the issue of relevance, the Defendants do not consider it proportionate, appropriate or necessary to provide details regarding the personal circumstances of other cases. This is because (a) sufficient evidence has been provided in the witness statement served in this action; (b) no consent has been provided by other individuals; (c) no protection is in place regarding identification of individuals; (d) in some cases the information in question (even at a general level) concerns sensitive matters of national security; and (e) it is appropriate and proportionate that such individuals have an opportunity to be heard and make representations before details of their cases are released.

Decision: Judge W is within the ARAP cohort. As explained under Question 16 below, sufficient material is available from both Judge W himself, the Defendants and the judgment in S and AZ to explain why he was evacuated under ARAP, such that no Part 18 order is appropriate in respect of him.

The position is different for the other 12 judges in the ARAP group. The Defendants’ evidence on this group is, effectively, limited to providing the number of judges in the group and asserting that they were all judges who were considered by individual decision-makers to meet ARAP Category 4 whereas JZ was not. The Defendants declined to disclose any further details of this group in S and AZ and have taken the same stance in this claim.

The Defendants have justified their position on the basis of the Gallaher principle that equality of treatment is not a free-standing ground for judicial review. However that is not a complete answer to the question of whether this material is relevant given that JZ acknowledges the principle, but frames his claim as one of consistency of treatment as an element of irrationality, which is a legally recognised approach: see [11] above. Indeed, the central issues in the claim are whether JZ is in a materially different position to the comparator judges and whether there has been a material and unlawful inconsistency of treatment between different groups of judges: see [15](1) and (2) above.

It appears from S and AZ that some, perhaps all, of the ARAP had worked in the Anti-Terrorism courts in Kabul: see [35] above. However this is not directly evidenced by the Defendants in this claim. Judge W’s evidence is that he understood that all 20 Primary and Appeal Court judges of the Anti-Terrorism Court were relocated under ARAP, but this does not correlate with the Defendants’ evidence to the effect that a total of 13 Judges were relocated to the UK under ARAP. It remains unclear where, geographically, the judges in the ARAP cohort served, and a focus on Kabul emerged in S and AZ as a relevant factor to distinguish between different judges: S and AZ at [108]-[110]. To the extent that any of the judges worked in the Anti-Terrorism Court in Kabul it is unclear when they did so. This is potentially significant because the Defendants at least implicitly from Mr Pinfield’s evidence rely on the different dates of service of JZ and Judge W in that court as a valid distinction between them.

For these reasons I find myself “guessing” about several material aspects of the decision making process with respect to the ARAP judges other than Judge W. Per Abraha at [114], the duty of candour requires that the Defendants remedy this.

I therefore consider that the Defendants should address the following, which is a modification of JZ’s draft Questions 2(a) and (b) to reflect the issues raised at [57] above:

“With respect to the judges relocated to the UK under ARAP other than Judge W, (a) what level/branch/division of Court within the Afghan judicial system did these Judges work in? (b) What was the nature of their judicial work? (c) Where, geographically, did they serve? (d) If any of them served in the Anti-Terrorism Court in Kabul, when was their service?”.

JZ proposes that the Defendants answer “What sort of cases did they preside over in Afghanistan?” and “Is it correct that they were part of the criminal justice system in Afghanistan?”. These questions appear otiose in light of questions (a) and (b) at [59] above.

In draft questions (c) and (d), JZ proposes that the Defendants answer “What does ‘work directly alongside HMG’ mean for these…Judges?” and “How did the Defendants assess whether these Judges made a ‘material contribution to the UK’s national security objectives in Afghanistan?’”

I consider that the first of these questions should be answered as this reflects part of the ARAP criteria. The answer will enable the court better to test the proposition that inconsistent approaches were applied between different groups applying under ARAP. The information provided in response to this question need only be brief. I note with respect to Judge W that the factors in question related to his contact with UK Counter-Terrorism team staff and matters of that nature, which can be succinctly expressed.

The second of these questions focusses on the LOTR criteria and so in my view need not be answered for the reasons given with respect to the LOTR questions below.

As to JZ’s draft question (e) “What date were these 12 Judges known to the FCDO/MoD and Home Office?”, I am not persuaded that these details are necessary to resolve the central consistency question.

As to (f) “How did these 12 Judges become known to the FCDO/MoD and Home Office?”, I consider that there is sufficient information available about how the ARAP policy operated, such that a Part 18 order on this topic is not necessary.

Request: Is it correct that these Judges were assessed by FCDO, exercising discretion under ARAP, as being eligible for evacuation under Category 4 Special Cases ARAP?

Response: As for question 2 above.

Decision: The hearing before me proceeded on the understanding that Category 4 of the ARAP policy was the main one in issue in this claim. It therefore appears likely that the answer to this question is yes, but the Defendants should clarify the position.

Requests: Please confirm in respect of the one remaining Judge in this 13-person-strong cohort, why HMG approved a Judge as ARAP Category 4 when GLD has seen no evidence that particular judge worked directly alongside HMG. Please also confirm in respect of this one remaining judge, what is meant by the relevant judge “worked at a court which received support from the UK Government.”

Responses: As for question 2 above.

Decision: These requests relate to one judge who was apparently approved under ARAP Category 4 despite not meeting the wording of the policy: as set out at [7] above, in September 2021 Category 4 did require that the person worked in a meaningful enabling role alongside HMG.

The Defendants submitted that one judge whose case might be seen as anomalous could not possibly suggest an inconsistently applied policy. This point might be a powerful one in the context of a very large group of people about whom decisions were being made, but it has less force given that the pool for consideration here is so small (only 13 judges) and given that so little is currently known about how the decisions for that group were made. In my view the approach to this judge is relevant to the Claimant’s Ground 1 and is necessary for the court to reach a proper determination of the consistency issue. As it relates to only one judge, it is proportionate for the Defendants to answer the questions as drafted.

Ms Naik QC accepted at the end of the hearing that the questions relating to Pitting LOTR were less crucial for this claim. This was a pragmatic approach to take given that (i) it is now clear JZ was not actually called forward during Operation Pitting; (ii) there is no LOTR decision under challenge in this case; and (iii) the general process and criteria used for selecting the Pitting LOTR judges is now relatively clear in light of the Defendants’ evidence, their responses to the Part 18 requests and the detailed consideration given to the issue by Lang J in S and AZ at [118]-[126]. These factors have informed my approach to this group of questions.

Requests: Is it correct that 12 Judges and 1 prosecutor were relocated through Operation Pitting LOTR? Is it correct that all of these individuals were female?

Responses: At least 11 judges, 1 head of a court of appeal and 1 prosecutor were accepted for relocation under Op Pitting LOTR. The Defendants are analysing their data to determine if there were any further evacuees from the Afghan legal profession under Op Pitting LOTR and will inform the Claimant at the conclusion of this work. Their gender is irrelevant to the issues in the claim. But for the avoidance of doubt, all of the aforementioned 11 judges were female.

Decision: The Defendant has answered this question appropriately and so no order is required.

Requests: What level/branch/division of Court within the Afghan judicial system did these Judges work in? What was the nature of their judicial work and what sort of cases did they preside over in Afghanistan?

Responses: As for question 2 above.

Decision: It now seems tolerably clear that the key reason why certain judges were granted Pitting LOTR was that they were part of a twinning / mentoring programme with the UK: see the analysis under Questions 10-11 and 13-14 below and S and AZ at [118]-[126]. Accordingly the details of their judicial service is less relevant. In light of this, and the general factors with respect to the LOTR questions set out at [73] above, I do not consider it appropriate to make a Part 18 order in respect of this question.

Requests: When did the Operation LOTR Pitting Judges become known to the FCDO, MoD and Home Office? How did the Operation LOTR Pitting Judges become known to the FCDO, MoD and Home Office?

Responses: Various forms of communication were used, including e-mail, during the course of Operation Pitting. The 11 female judges were part of a UK-Afghanistan twinning programme for female judges. They first came to FCDOS’ attention on the evening of 20 August 2021 when a list of the 11 judges was emailed by an MP to Lord Ahmad. Lord Ahmad’s private office shared this list with FCDO officials.

Decision: The Defendants have answered this question appropriately and so no order is required.

Request: Were decision-makers given any specific guidance on how to approach the issue of advocacy when reviewing Judges eligibility for LOTR?

Response: The process for and approach to assessing and prioritising cases during Operation Pitting, for the purpose of Op Pitting LOTR, is sufficiently addressed in Philip Hall’s witness statements dated 26 April 2022 and 27 May 2022.

Decision: I agree that the Defendants have already provided sufficient evidence on the process and approach to Pitting LOTR in the witness evidence, such that no order is appropriate.

Requests: How many Judges that were granted Operation Pitting LOTR had advocacy from UK citizens? Who acted as advocates for qualifying Afghan Judges?

Responses: This is sufficiently addressed above.

Decision: The information about the twinning programme given above indicates that all the Pitting LOTR judges were part of this programme. The twinning / mentoring programme and the role of the UK Afghanistan Women Judges Association, acting under the auspices of the International Association of Women Judges, was also considered by Lang J in S and AZ at [122] and [124]. Accordingly sufficient information is available on this issue and an order is not appropriate.

Request: Were any other Afghan Judges approved for LOTR but not actually evacuated during Operation Pitting? If so, what was the number?

Response: Yes. The number is not presently known.

Decision: The Defendants’ evidence indicates that an immigration route was established for those who were called forward for evacuation under Operation Pitting LOTR but were not able to get onto a UK aircraft. It is helpful that the Defendants have clarified in the answer to this question that there were some judges in this category. However in my view it is not necessary or proportionate to require the Defendants to investigate this issue further so as to establish the precise number of judges in the group, again bearing in mind the factors set out at [73] above.

Request: We have provided you and the Court with the witness statements and identities of Judges A, B, C, X, Y and W. Please provide specific reasons as to why each Judge was considered to have qualified, either under ARAP or Pitting LOTR.

Response: As for question 2 above.

Decision: Judge W was relocated under ARAP and Judges A, B, C, Y and Y under Operation Pitting. It is therefore appropriate to consider them separately.

Judge W had been a Judge at the Anti-Terrorism Court in Kabul. His evidence was used by the Claimants in S and AZ as comparator evidence. Lang J made the following finding in respect of the reasons why he was evacuated under ARAP:

“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”: S and AZ at [108].

In his second witness statement Judge W confirmed that JZ had also been a judge in the Anti-Terrorism Court in Kabul but at different times: JZ had worked there from 2008-2011 whereas he worked there from 2015 until he was evacuated in August 2021.

During the hearing, the Defendants provided a witness statement from Alexander Pinfield of the FCDO in response to Judge W’s second witness statement. Mr Pinfield had been the Deputy Ambassador to Afghanistan from 5 April 2021 to 26 August 2021 and the line manager of the Head of the Counter-Terrorism Team in the British Embassy in Kabul. He explained why the UK government considered that Judge W had links with them (even though Judge W appeared doubtful about this, saying in his first witness statement that he did not work for, or have contact with, the UK government either directly or indirectly). Mr Pinfield explained that Judge W had met the Head of the Counter-Terrorism Team in Kabul several times between February and April 2021 and was one of the judges in the Primary Court dealing with terrorism issues in Kabul with whom the Government had developed substantial links, through the Counter-Terrorism Team in particular.

Lang J also considered Judge W’s case in some detail: S and AZ at [101]-[103] and [105]-[108].

I therefore consider that sufficient evidence is available explaining why Judge W was evacuated under ARAP, such that no Part 18 order is appropriate.

These judges were all part of the Pitting LOTR cohort and so fell within the twinning / mentoring arrangement described under Questions 10-11 and 13-14 above. Their cases were also considered by Lang J in some detail: S and A at [101]-[103] and [105]-[108]. I therefore consider that sufficient evidence is also available explaining why these judges were granted Pitting LOTR, such that no Part 18 order is appropriate.

At the end of the hearing on 9 June 2022, Ms Naik QC submitted that in addition to the questions listed in the Part 18 application, JZ also sought (i) information about a judge who was understood to have been initially processed under ARAP scheme but then “converted” to the LOTR scheme on arrival in the UK; and (ii) clarification of whether all 13 of the judges who had been accepted under ARAP had made formal applications under the scheme.

I indicated that I was not minded to approve these questions given that they had not featured in the Part 18 correspondence or the application. They also do not bear as closely on the key issues as those questions I have approved above. I remain of the view that Part 18 orders on these questions would not be appropriate.

Accordingly JZ’s Part 18 application is allowed to the extent that the Defendants should answer the following:

My order will reflect that (i) the Defendants should respond by 4 pm on 19 July 2022; (ii) the parties should make submissions as to the impact of the answers to the Part 18 requests on the issues in this claim by 4 pm on 22 July 2022; and (iii) the parties should liaise with the Administrative Court office to list a short further hearing before me during the week of 25 July 2022, should the same be needed.

I consider these timescales proportionate bearing in mind the relatively limited number of questions the Defendants have been ordered to address compared to those in the application and the continued need for a prompt resolution of this claim, given the context of JZ’s position.