HR v Secretary of State for the Home Department

Hearing dates: 7 and 8 November 2023 and 5 March 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 11 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The three claimants are sisters 1. They are Afghan nationals and were evacuated to the UK on or around 27 August 2021 in the course of what is known as Operation Pitting. HR is the eldest of the three and is now 24 years old.

HR2 is now 17 years old. FR is now 15 years old. At the time that they were evacuated, HR and her sisters were respectively aged 22, 15 and 13. HR has effectively become the de facto guardian of HR2 and FR while in the UK.

The first and second interested parties are the claimants' parents and the third and fourth interested parties are the claimants' two brothers. These four interested parties remain in Afghanistan. It appears that the family went together to Kabul Airport in August 2022, with the aim of being evacuated, but in the event only the claimants succeeded in this aim. The claimants' father was employed directly by an international organisation as a driver.

The claimants state that as a result of the difficult circumstances and attacks at the airport at the time when they travelled there with their other family members, they became separated from the rest of their immediate family. As a consequence, the claimants were evacuated without their other family members. The claimants say they were told to proceed towards the flight as young women/children whilst the parents and brothers were told to wait.

The defendant has found no evidence that the whole family was ever cleared for evacuation as a unit during Operation Pitting. Neither party contends that the claimants are family members of British nationals, or ARAP eligible, or on the LOTR call forward instruction lists (i.e. beneficiaries of the Afghan Relocations and Assistance Policy (“ARAP”) and “other Afghan nationals in groups identified by ministers as priorities for evacuation because their profile might make them particular targets for the Taliban (for example certain Chevening scholars, journalists, women's rights activists and senior Afghan government officials”: R (KA) v SSHD, SSFCA and SSD[2023] 1 WLR 896, paragraphs 27(b) and (c), and 172(a). The defendant understands that the claimants were simply evacuated together from Kabul in August 2021, without the other family members. The defendant cannot speculate as to why.

Spelthorne Borough Council is the local authority for the area in which the claimants currently reside. The claimants were on 16 August 2023 moved from hotel accommodation into local authority accommodation, arranged with the assistance of the local authority and the defendant's liaison officer. They are not currently, and have not been, in the care of the local authority but referrals have been previously made in relation to them. The local authority has been served throughout these proceedings as an interested party and has confirmed that its position is neutral.

The claimants were granted Indefinite Leave to Remain (‘ILR’) and their bio-metric cards were issued to them reflecting this grant on 11 March 2022. Their grant of ILR stated that this is under ‘ALES’ – ‘Afghanistan Locally Employed Staff’. This was

On 21 December 2022, the claimants' solicitors emailed the defendant representations requesting a grant of LOTR for those family members remaining in Afghanistan. On 8 March 2023, the solicitors sent the defendant a PAP (pre-action protocol) letter challenging lack of response to representations.

On 4 April 2023, the defendant sent a PAP response, stating:

“You submit that representations were sent directly seeking Family Reunion for the interested parties on 21 December 2022, and that there has been no response to these representations at the time of drafting. You do not appear to have made an application for entry clearance, and you have not provided a GWF reference number of a copy of any application forms which one would expect to see had a visa application been formally submitted. All that has been provided in the bundle accompanying your letter before action is a letter dated 21 December 2022 letter that was sent to the following email address:

Afghanresettlementinforequests@homeoffice.gov.uk sent, no trace of formal visa application”

On 2 May 2023, the solicitors sent the defendant an ‘Addendum’ to the claimants' original PAP letter of 8 March 2023, stating inter alia that the defendant's PAP response that the family members in Afghanistan should apply for entry clearance in the form and under the Immigration Rules that most closely match their circumstances was Wednesbury unreasonable and unlawful.

On 12 June 2023, the sealed judicial review claim form was served and Linden J directed abridged response. On 26 June 2023, the defendant re-issued ILR to the claimants, with the confirmation that this was under the ACRS. On 5 July 2023, Lang J directed that there be a rolled-up hearing.

On 4 August 2023, the defendant filed and served his detailed grounds of defence.

On 14 August 2023, the claimants' solicitors made a request under CPR Part 18 for certain information relating to the judicial review. One of the questions was “Can the SSHD confirm the number of children evacuated through Operation Pitting, who became separated from their parents during the operation/evacuation?” On 13 September 2023, the defendant responded. In answer to this question, he replied “The Home Office does not hold data for this category”. To the question “How many cases have been brought to the UK Government's attention involving such children and requesting assistance with their parents' reunification?”, the response was “This is ambiguous as it refers to UKG rather than the Home Office. As to the Home Office, it does not hold data for this category.”

On 21 September 2023, a Ministerial Submission (hereafter “the Ministerial Submission”) was escalated to the defendant, recommending that he establish a route for the parents of children under 18 who were evacuated in Operation Pitting to join them in the UK.

On 11 October 2023, the defendant accepted the recommendation in the Ministerial Submission and decided to establish a route for the parents of children under 18 who were evacuated in Operation Pitting to join them in the UK.Prima facie, this will include the claimants' parents on the basis that HR2 and FR are under 18, but the precise eligibility and cohort for this policy has not yet been finalised. The defendant's intention is to begin to accept referrals under this route in the first half of 2024.

On 17 October 2023, the claimants sent the defendant a further Part 18 request, replying to perceived insufficiency in the defendant's original Part 18 response. On 19 October 2023, the claimants filed and served a reply. On 24 October 2023, the claimants filed and served their skeleton argument.

On 27 October 2023, the defendant sent the claimants an Amended Part 18 Response, notifying them of the policy development mentioned in paragraph 15 above. So far as timescale for implementation was concerned, the response said that “Due to the specific vulnerabilities of this cohort there is a need to properly consider safeguarding requirements which could impact delivery timelines. The additional period is justified in light of ensuring that any route that is established prioritises the best interests of children.”

The rolled-up hearing was listed before me for 7 and 8 November 2023. On 7 November, during the claimant's reply, I requested that the defendant disclose the Ministerial Submission. On 8 November 2023, the defendant disclosed the Ministerial Submission and a witness statement from Dr Peter Illing. Also on that day, the defendant notified the court and the claimants of the existence of further material that needed to be disclosed pursuant to candour, that the defendant wished to disclose now, but which could only be disclosed into CLOSED proceedings. D therefore applied to adjourn in order to make this application under section 6 of the Justice and Security Act.

On 24 November 2023, that section 6 application was then made and granted by Swift J on 5 December 2023.

On 27 November 2023, I ordered the defendant to file a further witness statement explaining (a) when the defendant's legal representatives at GLD first became aware of the Ministerial Submission; (b) the reasons for not disclosing it to the claimants sooner; (c) when the defendant's legal representatives with conduct of this litigation first became aware of the further material and its relevance to this claim; (d) “further information as to any data held by the D, or other Departments of HMG, or referrals made to the same, as well as the sources of any such data and referrals, that presumably supported the summary of the ‘background’ at [3] (noting that this...