R JZ v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] EWHC 1708 (Admin) |
| Docket Number | Case No: CO-4091-2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1708 (Admin)
Mrs Justice Hill DBE
Case No: CO-4091-2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sonali Naik QC, Irena Sabic and Emma Fitzsimons (instructed by Wilsons Solicitors LLP) for the Claimant
Edward Brown QC and Hafsah Masood (instructed by the Government Legal Service) for the Defendants
Hearing dates: 8 and 9 June 2022
Approved Judgment
This judgement was handed down remotely by circulation to the parties' representatives by email and released to the National Archives. The date and time for hand-down is deemed to be 2pm on Friday 1 st July 2022
Introduction
The Claimant (“JZ”) is a judge in Afghanistan. He seeks judicial review of the Defendants' decision dated 18 October 2021, maintained on 24 November 2021, refusing his application under the Afghan Relocations and Assistance Policy (“ARAP”).
On 1 April 2022 Lieven J granted his application for interim relief: R(JZ) v Secretary of State for the Home Department & Ors [2022] EWHC 771 (“ JZ No. 1”).
By an application notice dated 7 June 2022 JZ seeks further information from the Defendants about other judges who were relocated to the UK under ARAP, and judges evacuated from Afghanistan during Operation Pitting in August 2021 and granted Leave Outside the Rules (“LOTR”).
JZ's case came before me for a two day full hearing on 8 June 2022. Initially, the outstanding Part 18 application formed part of the basis for an application to adjourn the hearing by JZ, but it was eventually agreed that the hearing could proceed. The Part 18 application was re-visited at the end of the hearing and is maintained by JZ. It was opposed by the Defendants. This is my judgment on the Part 18 application.
The factual background
From July 2008 to May 2011 JZ was a Primary Court (first instance) judge in the Parwan Justice Centre at Bagram Air Force Base and at Pol-e-Charkhi prison in Kabul. During this time he was assigned to the public security bench hearing terrorism cases. Most of the cases involved insurgents and Taliban fighters who had been arrested by the International Security Assistance Force (“ISAF”). From May 2011 he sat as an Appeal Court judge in Kabul. He was still in that post in August 2021.
JZ's evidence is that most of the Taliban fighters sentenced by him have been released from prison, have re-joined the Taliban and actively fight for them. He is being actively sought by the Taliban and has received threats, including death threats, since August 2014. Some of the death threats have said that he and his children will meet the same fate as that of his cousin, Judge Rafieddin. He was assassinated by the Taliban on 22 January 2020, while a sitting judge in the Appeal Court in Nangarhar. JZ and his family are currently in hiding, separately, in Afghanistan.
On 14 August 2021 JZ applied under ARAP. The details of this policy were set out by Lang J in another very recent case involving the relocation of judges from Afghanistan, R (S) v Secretary of State for Foreign and Commonwealth and Development Affairs and Ors and R (AZ) v Secretary of State for the Home Department and Ors [2022] EWHC 1402 (Admin) (“ S and AZ”) at [58]–[64]. As at 15 September 2021 those “who worked in meaningful enabling roles alongside HMG, in extraordinary and unconventional contexts, and whose responsible HMG unit builds a credible case for consideration under the scheme” were eligible to apply under ARAP Category 4. The previous, 1 April 2021, version had referred to “those who worked in meaningful enabling roles for HMG”: S and AZ at [60]–[61].
During August 2021 several judges were evacuated from Afghanistan to the UK under Operation Pitting. They were “called forward” to board evacuation flights and later granted LOTR. This scheme became known informally as “Pitting LOTR”. Those selected for Pitting LOTR had to show a “contribution” to UK government objectives in Afghanistan, as well as either particular “vulnerability” or “sensitivity”: S and AZ at [9]–[17]. JZ had initially understood that he had been called forward: JZ No. 1 at [4]–[9]. However the Defendants' evidence in this claim showed that this was not the case: he had been identified as someone who might be eligible for Pitting LOTR, but due to the rapidly deteriorating security situation in Afghanistan a panel to consider whether to call him forward could not be convened.
By a decision dated 18 October 2021, upheld on 24 November 2021, the Defendants rejected JZ's application under ARAP. This was later reviewed and the refusal maintained on 26 May 2022. The Defendants initially declined to make a decision on JZ's request for LOTR. On 1 April 2022, Lieven J's grant of interim relief in JZ No. 1 required the First Defendant to make an ‘in principle’ decision on the LOTR application. On 6 April 2022 JZ's application for LOTR was refused. On 25 April 2022 this decision was maintained by the Entry Clearance Manager.
The issues in JZ's claim
JZ's Ground 1 argues that the Defendants' decision-making in relation to ARAP has been inconsistent and incoherent, both with respect to how ARAP itself operates and how Operation Pitting operated. He is in a materially similar position to other judges who were relocated under ARAP and/or Operation Pitting, most notably judges W, X, Y, A, B and C (from whom he has provided evidence). The Defendants have not provided a cogent and lawful reason for the different treatment between the Claimant and those similarly situated comparator judges. The Defendants' systems and processes for ARAP and Pitting LOTR were incoherent or otherwise procedurally unlawful in the way they were expressed or operated.
JZ argues that consistency of treatment is a particular application of rationality and that it is well recognised in administrative law that people should be treated uniformly unless there is some valid reason to treat them differently: see, for example, Lord Sumption in Gallaher Group Ltd v Competition and Markets Authority [2018] UKSC 25 at [50] and Rose LJ in SSHD v BK (Afghanistan) [2019] EWCA Civ 1358 at [39]. Further, 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]; see also R (Gurung) v Ministry of Defence [2002] EWHC 2463
The Defendants resist Ground 1 on the basis that equality of treatment is not a freestanding ground for judicial review: see, for example, R (Gallaher Group Ltd) v CMA [2018] UKSC 25; [2019] AC 96. In so far as the court is concerned with alleged inconsistent treatment, the argument has no merit: Afghan judges may be eligible under ARAP but whether they are in fact eligible depends on a case-specific evaluation of the individual facts. While there are some similarities in the criteria used in the ARAP scheme and those used under Operation Pitting LOTR, it is unrealistic to compare the application of nominally similar criteria during an emergency evacuation with the situation as it pertained after the evacuation ended.
JZ's Ground 2 argues that his case should be treated as if he had been called forward during Operation Pitting given his proximity to the group of people who were actually called forward. It is said that his proximity to the call forward group is a factor that is highly relevant to the exercise of the Defendants' residual discretion under ARAP or LOTR.
The Defendants resist Ground 2, arguing that JZ does not have permission to argue it in the way it is now advanced. In any event the ARAP decision which is challenged was rationally reached and there is no challenge to the 4 April 2022 LOTR decision before the court.
JZ's counsel identified the issues for the full hearing of his claim as follows:
(1) Is the Claimant in a materially similar position as to eligibility under ARAP and/or Pitting LOTR to those who were relocated under ARAP and/or Pitting LOTR, most notably judges X, Y, W, A, B and C?
(2) Have the Defendants provided a cogent and lawful reason for the acknowledged differential treatment between the Claimant and the similarly situated comparators?
(3) Were the Defendants' systems and processes for ARAP and/or Pitting LOTR incoherent or otherwise procedurally unlawful in the way they were expressed or operated?
(4) What is the relevance of the Claimant's proximity to being called forward during Operation Pitting for a lawful decision on ARAP/LOTR?
The procedural history of the Part 18 application
After the close of business on Friday 27 May 2022 JZ's solicitor served a detailed Part 18 request on the Defendants. This comprised 35 substantive questions of which several included sub-questions. The questions covered the issuing of call forward instructions, ARAP and Pitting LOTR.
On Monday 30 May 2022 the Government Legal Department (“GLD”) replied on behalf of the Defendants expressing concern that these requests had not been made earlier and indicating that contrary to CPR PD18 paragraph 1.1 insufficient time to respond had been given, as the Claimant had asked for a request by 1 June 2022. The imminent judicial review hearing date of the 8 June 2022 was noted, as was the fact that GLD offices would be closed for the extended Bank Holiday from the 2–6 June 2022 inclusive. It was also said that the Part 18 request was disproportionate. The letter indicated that if JZ served a more proportionate and focussed request by no later than...
To continue reading
Request your trial
-
R JZ v The Secretary of State for the Home Department
...the Defendants provide certain further information under CPR Part 18: R (JZ) v Secretary of State for the Home Department & Ors [2022] EWHC 1708 (Admin) (“ JZ No. 6 This is my judgment on the merits of the Claimant's claim, taking into account the information provided by the Defendants pur......