KA v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 06 October 2022 |
| Neutral Citation | [2022] EWHC 2473 (Admin) |
| Docket Number | Case No: CO/4031/2021 |
| Court | King's Bench Division (Administrative Court) |
The King (On the Application of)
[2022] EWHC 2473 (Admin)
Mr Justice Julian Knowles
Case No: CO/4031/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Buttler KC and Zoe McCallum (instructed by Duncan Lewis Solicitors) for the Claimants
David Blundell KC, Nicholas Chapman and Natasha Jackson (instructed by GLD) for the Defendants
Hearing dates: 30 and 31 March 2022
APPROVED JUDGMENT
Introduction
This claim for judicial review arises out of events in Afghanistan and the evacuation from that country in August 2021 of British citizens, their dependants, and others, following the withdrawal of NATO forces, and the Taliban's subsequent takeover of the country. It concerns policies made by D1 relating to those, like the Claimants, who have entered or wish to enter the UK from Afghanistan.
An order protecting the anonymity of the Claimants has been made. The reasons why will become obvious.
The First Claimant (C1) is a British national who was in Afghanistan when NATO forces withdrew. He came back to the UK on or about 20 January 2022. C2 is his wife and an Afghan national. C3-C7 are their children. It asserted that C7 is a dual British-Afghani national; D1 does not accept this but nothing turns on it. C2-C7 remain in Afghanistan. C1 is worried for their safety.
There were three grounds of challenge in the original Statement of Facts and Grounds lodged in November 2021. Freedman J refused permission on Ground 1 but granted permission on Grounds 2 and 3.
Mr Buttler KC explained that there had been an application to renew on Ground 1, but that had been withdrawn, at which point the application in respect of D2 and D3 stood dismissed. Hence this claim is proceeding against D1 only.
As now presented by Mr Buttler, the case raises two main issues.
The first issue concerns the suggested insuperable barrier to C2 to C7 entering the UK. The Claimants say that D1 has decided that she will not consider an application for entry clearance from Afghanistan unless the applicant first enrols their biometrics (fingerprints and a facial photograph). Without biometrics, any application will be invalid under the relevant Regulations. That requirement is contained in [40] of a policy called the Afghanistan Resettlement and Immigration Policy Statement (ARIP), published in September 2021. They say the policy is confirmed by the evidence filed in this case.
However, as D1 recognises, it is impossible for C2-C7 to enrol their biometrics because there is no Visa Application Centre (VAC) in Afghanistan. Given the situation in Afghanistan, it is not practically possible for them to travel to a third country (such as Pakistan) where biometrics could be taken. The Claimants say that this means that D1's insistence on biometric enrolment presents a complete barrier to C2-C7 applying for entry clearance and, accordingly, a complete barrier to C1's family life with them and thus a disproportionate violation of his Article 8(1) rights.
As I shall explain, the claim as originally framed in November 2021 challenged this policy on common law grounds. At that stage, the Claimants were all outside the UK, and so framing a challenge under the European Convention on Human Rights (ECHR/the Convention) would have faced difficulties, as Mr Buttler broadly accepted. However, C1 returned to the UK on or about 20 January 2022. At that point it became open to him to argue that the policy in question breached his Article 8(1) rights because it prevented his family from joining him. He therefore reframed his claim in Convention terms on 7 March 2022 and an Amended Statement of Facts and Grounds was filed and served. In due course leave to amend was granted by Lang J.
As originally cast, the claim was that D1's policy on biometrics disproportionately interfered with C1's Article 8(1) rights to private and family life by imposing a condition which it was impossible for C2 to C7 to comply with. In other words, it was a facial challenge to the policy (or at least that is how D1 perceived the argument was being put). This in broad terms was referred to as ‘Issue 1’ at the hearing.
However, the claim became more focussed thereafter, as I shall explain later. Issue 1 is not now so much a facial challenge to ARIP but an ‘as applied’ challenge in the specific case of C1. He says that by imposing a condition for his wife and children to make a valid application for entry clearance, ie, the requirement to supply biometrics, which they literally cannot comply with, D1 has disproportionately interfered with his rights under Article 8(1) on the facts of their case. Mr Buttler said that D1's impossible requirement was a ‘colossal interference’ in C1's Article 8(1) rights, and he relied as a parallel on part of Lord Wilson's judgment in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621, [30]–[32]. I will return to Quila later.
Issue 2 concerns how those evacuated from Afghanistan – or who otherwise were or are able to leave — are treated under ARIP. I will set out the detail later, but in summary terms for now, one group is eligible for indefinite leave to remain (ILR) once they enter the UK, pursuant to [39] of ARIP, which carries a package of benefits including a quicker route to citizenship. In contrast, others, who may have left in a different way purely through chance (say the Claimants), are not so entitled, per [40] of ARIP. This distinction is said to be irrational.
Originally this policy was also challenged as being contrary to Article 14 of the ECHR but Mr Buttler did not pursue that argument, and so the policy is challenged purely on the grounds of common law irrationality. A prior question is whether C2-C7 fall within [39] or [40] of ARIP. Mr Buttler, on their behalf, argues that on a true construction of ARIP they fall within [39] and so should be eligible for ILR, etc, once they enter the UK.
The papers in this case are voluminous. There was a large main bundle, three further bundles, and at least two volumes of authorities, all running to thousands of pages. I had lengthy Skeleton Arguments, replies, replies to replies, further post-hearing notes and the like. A lot of material only arrived a day or so before the hearing, leaving little time for pre-reading. That meant there had to be quite a lot of post-reading. During the hearing a number of new points, not dealt with in the Skeleton Arguments, emerged for the first time in a further metamorphosis of how the Claimants put their case, which had already changed significantly since the claim was lodged in November 2021. It changed again during Mr Buttler's reply. Some of the issues are inter-linked, and whether I need to, or what, I decide on some of them depends on what I decide on others. The issues are not straightforward.
Hence the case has taken some time to analyse and reach conclusions upon. In fact, some of the initial perceived urgency of this case (although it had taken well over four months to come to court after filing) dissipated during the hearing, for reasons which I will come to. I should add that as well as my notes, I have full audio files of the hearing which I have consulted whilst writing this judgment.
Background
C1 is a British citizen (born on 1 January 1990), who was granted ILR in 2010 and, thereafter, British citizenship. C2 is his Afghan wife (aged 37) and C3-C7 are their five dependent children (born between 2005 and 2014, and aged between seven and 17 at the time of the hearing). It is asserted (though not accepted by D1) that C7 is a dual Afghan and British citizen because, at the time of her birth, her father was a British citizen other than by descent (s 2 of the British Nationality Act 1981). The other children are not British nationals because they were born before C1 was granted citizenship.
C1 came to the UK in 2006. He took a job in a town in the Midlands and became assimilated into British society. Between then and March 2021 he regularly travelled between the UK and Afghanistan to see his family. He met and married C2 in 2014, ie, before he fled Afghanistan for the UK.
In February 2020 the Doha Agreement was concluded. This provided for the withdrawal of US and other troops from Afghanistan. Following a phased withdrawal, on 14 April 2021 President Biden stated that the final 2,500 US troops would be withdrawn by 11 September 2021. On 1 May 2021, Taliban forces mounted an offensive to retake the country. Over time, the Taliban gained territory and the situation in Afghanistan became increasingly dangerous.
The Foreign and Commonwealth Development Office (FCDO) is responsible for providing consular assistance to British nationals. As part of that function, it issues travel advice. Given the security concerns in light of the Taliban takeover of Afghanistan, the FCDO's published travel advice in March 2021 warned against all but essential travel to the Enhanced Security Zone in Kabul, Hamid Karzai International Airport, Panjshir province and the city of Bamian, and it advised against all travel to all other areas of Kabul and the rest of Afghanistan. The advice made clear that FCDO assistance to leave the country should not be assumed.
On 27 March 2021 C1 travelled from the UK to Afghanistan to visit his wife and children, intending his usual three month...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2022-11-29, JR-2021-LON-001566
...collection of biometrics until they are in the UK.” The recent judgment of Julian Knowles J in R (KA and Others) v SSHD and Others [2022] EWHC 2473 (Admin) concerned Afghan applicants who sought to join their British citizen relative in the United Kingdom, pursuant to the Afghanistan Resett......
-
The King (on the application of Halton Borough Council) v Road User Charging Adjudicators
...Home Department [2021] UKSC 37 [2021] 1 WLR 3931 (a case about child sex offender disclosure scheme guidance); and R (KA) v Secretary of State for the Home Department [2022] EWHC 2473 (Admin) (a case about arrangements relating to evacuations from 68 The essence of unlawful fettering, at......
-
CX1 v Secretary of State for Defence
...involves an examination of the words of the policy, taking the policy as a whole and in the context of its purpose: R (KA) v Secretary of State for the Home Department [2022] EWHC 2473 (Admin); R (O) v Secretary of State for the Home Department) [2016] 1 WLR 81 I have set out at some leng......
-
The King on the Application of MP1 v Secretary of State for Defence
...it is important to be clear at the outset about the relevant interpretive principles. I discussed some of these in R (KA) v Secretary of State for the Home Department [2022] 1 WLR 896, [149]–[151]. Lane J followed the KA approach in CX1, 122 In Mahad (Ethiopia) v Entry Clearance Officer [2......