R(KBL) v SSHD and Ors
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 23 January 2023 |
| Neutral Citation | [2023] EWHC 87 (Admin) |
| Docket Number | Case No: CO/32/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 87 (Admin)
Mrs Justice Lang DBE
Case No: CO/32/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sonali Naik KC, Maria Moodie and Maha Sardar (instructed by Wilson LLP) for the Claimant
Lisa Giovannetti KC and Hafsah Masood instructed by the Government Legal Department) for the Defendants
Hearing date: 8 December 2022
Approved Judgment
This judgment was handed down remotely at 10.30 am on 23 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Claimant, who is a national of Afghanistan, seeks judicial review of the Defendants' failure to grant her leave to enter the United Kingdom (“UK”), on 13 December 2021, in response to applications made in October and December 2021.
The Defendants do not dispute that the Claimant may be at risk of serious harm or death at the hands of the Taliban, because of her work on women's rights, human rights and government anti-corruption under the previous regime.
The issues may be summarised as follows:
i) Ground 1
In regard to the Claimant's application for Leave Outside The Rules (“LOTR”):
a) Did the Secretary of State for the Home Department (“SSHD”) act irrationally (1) in refusing to accept as valid the Claimant's application for LOTR because it was made in her online application under the Afghan Relocation and Assistance Policy (“ARAP”); and (2) by requiring her to submit her application for LOTR in an online visa application form which was inapplicable to her circumstances?
b) Did the SSHD act irrationally, and contrary to the relevant LOTR guidance, in refusing to accept the Claimant's application for LOTR when the consequence was that the Claimant was not provided with a GWF Reference Number and so was prevented from making a biometric registration appointment at the Visa Application Centre (“VAC”) in Pakistan?
ii) Ground 2
a) Did the Defendants treat the Claimant inconsistently in comparison with other women's rights/human rights activists and government officials who were prioritised for evacuation from Afghanistan? If so, were the inconsistencies in treatment unlawful? The Claimant contends that the Defendants' systems and processes for identifying eligible individuals lacked coherence; there was no justification for discontinuing the eligibility criteria adopted during Operation Pitting; and they were procedurally unfair because the policy criteria were not published, which meant that applicants could not make meaningful representations.
b) Did the guidance given on the GovUK web page titled “Support for British and non-British nationals in Afghanistan”, published on 22 August 2021, give rise to a legitimate expectation that (1) the Claimant met the criteria for priority evacuation groups, and (2) the Defendants' decision as to prioritisation within these groups, and her systems governing those decisions, would be made fairly and consistently? If so, was there an unlawful breach of the legitimate expectation?
c) The Defendants submit that Ground 2 is premature and ought not to be determined, since the Claimant has not made a valid application for LOTR, and the Defendants have not made a substantive decision on whether or not to grant the Claimant LOTR.
Procedural history
The claim was issued on 6 January 2022. I granted permission to apply for judicial review on the papers on 25 January 2022, and made an order for expedition. At a case management hearing on 18 March 2022, Swift J. ordered that this claim should be heard with the claims in CO/4106/2021 (“ S”) and CO/315/2022 (“ AZ”).
On 17 May 2022, I granted the Claimant's request to adjourn the substantive hearing in her case until the contested application for further information under CPR Part 18 had been determined.
I proceeded to hear the claims in S and AZ on 17 and 18 May 2022, and made an order on 9 June 2022 in the following terms:
i) I dismissed the claim for judicial review of the Defendants' refusal of applications to be relocated to the UK under ARAP.
ii) I granted judicial review of the Defendants' refusal to accept applications for LOTR as valid because they were made using the ARAP online application form, and because S and AZ had not attended a VAC for biometric testing.
iii) Although I found that many of the allegations made by S and AZ of inconsistent treatment by the Defendants, in comparison with the treatment of comparator judges during Operation Pitting, were well-founded, I made no order for judicial review in respect of their applications for LOTR, as the Defendants had not yet made substantive decisions on their applications for LOTR which were capable of being quashed.
The First and Third Defendants applied for permission to appeal to the Court of Appeal against my order under paragraph 6(ii) above in the S and AZ claims. On 8 July 2022 permission to appeal was granted. Andrews LJ made it a condition of the grant of permission that, to avoid delay, the Defendants should progress their applications for LOTR as if permission had not been granted, and there was no stay imposed on my order.
On 15 July 2022, I adjourned the Claimant's substantive hearing and stayed the claim until the handing down of the judgment of the Court of Appeal in the S and AZ claims.
On 22 July 2022, the First Defendant considered and refused S and AZ's applications for LOTR, on an “in principle” basis.
The Court of Appeal handed down judgment on 29 July 2022 (Neutral Citation Number: [2022] EWCA Civ 1092). The grounds of appeal were limited to the procedural issues arising in the applications for LOTR (at [7]). The Court:
i) allowed the appeal against my conclusion that it was irrational to reject the applications for LOTR because they were made in the ARAP online application form; and
ii) dismissed the Defendants' appeal against my conclusion that it was irrational and procedurally unfair to refuse to consider visa applications without prior attendance at a VAC Centre for biometric testing, with no option for waiver or deferral, and S and AZ did not want to take the risk of making a false entry on the form, which they were advised to do by the Government Legal Department (“GLD”).
On 21 October 2022, I lifted the stay on this claim and directed that an expedited hearing be listed in the Michaelmas term 2022.
Factual background
History of events in Afghanistan
Following the terrorist attacks against the United States of America (“USA”) on 11 September 2001, the USA led a military intervention against Al Qaeda groups, and the Taliban government in Afghanistan. The UK took a significant part in the USA's initial intervention. Subsequently, the operation was supported by NATO and a joint international force, collectively called the International Security Assistance Force (“ISAF”), in which the UK played a leading political, diplomatic and military role.
Mr Tim Foxley MBE, in his witness statement dated 28 April 2022, set out a helpful chronology, based upon ‘The UK and Afghanistan’, House of Lords Select Committee on International Relations and Defence, p.11–12 (13 January 2021) and Farrell, T. ‘Unwinnable: Britain's War in Afghanistan, 2001 – 2014’, (The Bodley Head, London 2017). He said, at paragraph 23:
“The mission evolved and expanded between 2001 and 2021. The emphasis of the UK mission changed focus over the years, with several overlapping themes:
a. 2001 – 2002 — defeating the Taliban and hunting Al Qaeda.
b. 2002 – 2005 – establishing democratic Afghan government processes and supporting infrastructure (a judiciary, an army, a police force, counter narcotics and a democratic electoral process).
c. 2005 – 2006 – major British force deployment into Helmand province.
d. 2007 – 2014 – Helmand: ongoing combat operations against Taliban guerrilla resistance in southern Afghanistan.
e. 2011 – 2014 – preparing for departure from Afghanistan, transitioning to Afghan government and enabling the Afghan National Security Forces to take over responsibility for protecting the country.
f. 2014 – 2021 – The withdrawal of ISAF. A drawdown of UK military forces to a non-combat, residual military presence, mentoring, coaching, training the Afghan security forces. Continued support for Afghan government capacity building, support for negotiations with the Taliban.”
On 29 February 2020, the USA and the Taliban signed the Doha Agreement (officially titled the “Agreement for Bringing Peace to Afghanistan”) that provided for the withdrawal of all USA and allied military forces and civilian personnel from Afghanistan by 1 May 2021. The withdrawal was conditional upon the Taliban upholding the terms of the agreement that included not to allow Al Qaeda or any other extremist group to operate in the areas they controlled. The withdrawal of the USA was later deferred to 31 August 2021.
In May 2021, the Taliban launched a major offensive against the Afghan Armed Forces, and then made rapid advances. By 15 August 2021, the Taliban had seized Kabul. USA and NATO troops retreated to Kabul airport from where they operated an emergency airlift for all NATO's civilian and military personnel, other foreign nationals, and at-risk Afghan nationals. The British Government's evacuation mission was called “Operation Pitting”. The final British flight from Kabul took place on 28 August 2021. The last USA military planes left Afghanistan on 30 August 2021. Taliban soldiers then entered the airport and declared victory. The Taliban government has been in total control of Afghanistan since that date. The UK...
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