R JZ v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill DBE |
| Judgment Date | 12 August 2022 |
| Neutral Citation | [2022] EWHC 2156 (Admin) |
| Docket Number | Case No: CO/4090/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
[2022] EWHC 2156 (Admin)
Mrs Justice Hill DBE
Case No: CO/4090/2021
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 June, 9 June and 25 July 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
COVID-19 Protocol: this judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time of hand-down is 2.00pm on Friday 12 August 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”).
JZ has also applied for Leave to Remain Outside the Rules (“LOTR”). In light of events since the claim was issued, he is challenging the LOTR decisions in separate proceedings.
On 1 April 2022 Lieven J granted the Claimant permission to amend his claim in certain respects and allowed his application for interim relief: R (JZ) v Secretary of State for the Home Department & Ors [2022] EWHC 771 (Admin) (“ JZ No. 1”).
On 9 June 2022 Lang J handed down a comprehensive judgment in another case involving ARAP and LOTR applications by two Afghan judges: 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”). An appeal against certain aspects of her judgment was dismissed by the Court of Appeal on 29 July 2022: [2022] EWCA Civ 1092.
On 1 July 2022 I granted the Claimant's application for an order that 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. 2”).
This is my judgment on the merits of the Claimant's claim, taking into account the information provided by the Defendants pursuant to the Part 18 order and the further submissions made by the parties on it. I also address an application made by the Claimant on 22 July 2022 to admit a fifth witness statement from his brother, SQ.
The factual background
The context, ARAP and “Pitting LOTR”
Lang J provided a detailed account of the history of the UK mission in Afghanistan leading to the events of August 2021, the various public statements concerning Afghan judges, the UK's role in promoting the rule of law and supporting women's rights in Afghanistan, the risk of harm from the Taliban and the court system in Afghanistan in S and AZ at [5]–[35].
ARAP was introduced with effect from 1 April 2021. It replaced the “Intimidation Policy” which was introduced in 2010. 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”. The categories of those eligible to apply under ARAP are routinely updated. As at 15 September 2021 the ARAP policy provided for the following categories of eligibility
“ Category 1
The cohort eligible for urgent relocation comprises of those who are assessed to be at high and imminent risk of threat to life.
Category 2
The cohort eligible for relocation by default comprises of those who were employed by HMG in exposed meaningful enabling roles. Or those who were contracted to provide linguistic services in support of the UK Armed Forces.
1. Exposed meaningful enabling roles are roles that made a material difference to the delivery of the UK mission in Afghanistan, without which operations would have been adversely affected, and that exposed LES to public recognition in performance of their role, leaving them now at risk due to the changing situation in Afghanistan.
2. Examples of such roles are patrol interpreters, cultural advisors, certain embassy corporate services, and development, political and counter-terrorism jobs, among others. This is not an exhaustive list, nor are all those who worked in such roles necessarily eligible by default.
……
Category 3
The cohort eligible for other support are those who are neither assessed to be at high and imminent risk of threat to life nor eligible by default due to holding exposed meaningful enabling roles. This cohort are eligible for all other support short of relocation as deemed suitable by the ARAP team.
Category 4
The cohort eligible for assistance on a case-by-case basis are 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 (in some cases this includes people employed via contractors to support HMG defence outcomes).
Where relocation is offered to Category Four individuals, circumstances dictate whether it is urgent or routine, as assessed by the ARAP team”.
The previous, 1 April 2021, version had referred to “those who worked in meaningful enabling roles for HMG”: S and AZ at [58]–[61].
ARAP was introduced into the Immigration Rules (“IR”) from 1 April 2021. However, it was not until 14 December 2021 that provision was made in the IR for those who were not employed by the UK Government. The material provision is as follows:
“ 276BB5. A person falls within this paragraph if the person meets conditions 1 and 2 and one or both of conditions 3 and 4. For the purposes of this paragraph:
(i) condition 1 is that at any time on or after 1 October 2001, the person:
(a) was directly employed in Afghanistan by a UK government department; or
(b) provided goods or services in Afghanistan under contract to a UK government department (whether as, or on behalf of, a party to the contract); or
(c) worked in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department.
(ii) condition 2 is that the person, in the course of that employment or work or the provision of those services, made a substantive and positive contribution towards the achievement of:
(a) the UK government's military objectives with respect to Afghanistan; or
(b) the UK government's national security objectives with respect to Afghanistan (and for these purposes, the UK government's national security objectives include counterterrorism, counter-narcotics and anti-corruption objectives);
(iii) condition 3 is that because of that employment, that work or those services, the person:
(a) is or was at an elevated risk of targeted attacks; and
(b) is or was at high risk of death or serious injury.
(iv) condition 4 is that the person holds information the disclosure of which would give rise to or aggravate a specific threat to the UK government or its interests”: S and AZ at [63]–[64].
Operation Pitting was the name given to the UK Government's mission to evacuate British nationals, and others at risk from the Taliban, from Afghanistan during August 2021. It operated from 13–28 August 2021. Individuals were “called forward” to board evacuation flights and later granted LOTR. This scheme became known informally as “Pitting LOTR”. Several Afghan judges were within this group. The selection criteria for Pitting LOTR were (i) Contribution to HMG objectives in Afghanistan: evidence of individuals making a substantial impact on operational outcomes, performing significant enabling roles for HMG activities and sustaining these contributions over time; and (ii) Vulnerability due to proximity and high degree of exposure of working with HMG: evidence of imminent threat or intimidation due to recent association with HMG/UK; or (iii) Sensitivity of the individual's role in support of HMG's objectives: where the specific nature of activities/association leads to an increased threat of targeting. The Contribution criterion had to be met in all cases and then either the Vulnerability criterion or the Sensitivity criterion: S and AK at [5]–[11] and [15]–[17].
After the end of Operation Pitting, the Home Office published its “Afghanistan Resettlement and Immigration Policy Statement” dated 13 September 2021. This explained the establishment of the Afghan Citizens Resettlement Scheme (“ACRS”) which opened on 6 January 2022: S and AK at [65]–[71].
On 16 February 2022 the wording of ARAP Category 4 was revised to read follows:
“The cohort eligible for assistance on a case-by-case basis are those who:
on or after 1 October 2001 were directly employed in Afghanistan by an HMG department; provided goods or services in Afghanistan under contract to an HMG department; or worked in Afghanistan alongside an HMG department, in partnership with or closely supporting that department; and
in the course of that employment or work or provision of services they contributed to the UK's military objectives or national security objectives (which includes counterterrorism, counternarcotics and anti-corruption objectives) with respect to Afghanistan; and
because of that employment or work or provision of services, the person is or was at an elevated risk of targeted attacks and is or was at a high risk of death or serious injury; or
hold information the disclosure of which would give rise to or aggravate a...
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