R S v Secretary of State for Foreign, Commonwealth and Development Affairs
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 09 June 2022 |
| Neutral Citation | [2022] EWHC 1402 (Admin) |
| Docket Number | Case No: CO/4106/2021 & CO/315/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1402 (Admin)
Mrs Justice Lang DBE
Case No: CO/4106/2021 & CO/315/2022
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 LLP) for the Claimant in CO/4106/2021
Irena Sabic, David Sellwood and Maha Sardar (instructed by Wilsons LLP) for the Claimant in CO/315/2022
Lisa Giovannetti QC, Edward Brown QC and Hafsah Masood (instructed by the Government Legal Department) for the Defendants
The Interested Parties did not appear and were not represented
Hearing dates: 17 & 18 May 2022
Approved Judgment
(Anonymity Orders made)
The Claimants, who were judges in Afghanistan prior to the defeat of the Afghanistan government by the Taliban in August 2021, seek judicial review of the Defendants' decisions refusing their application for leave to enter the United Kingdom (“UK”). It is not in dispute that the Claimants are at risk of serious harm or death at the hands of the Taliban.
The issues may be summarised as follows:
i) Was any difference in treatment between the Claimants, and the comparator judges irrational or otherwise unlawful? The comparator judges were relocated to the UK, during and after Operation Pitting, under the Afghan Relocation and Assistance Policy (“ARAP”) or under a grant of Leave Outside the Rules (“LOTR”).
ii) Were the procedural requirements imposed by the Defendants in respect of LOTR applications irrational and/or in breach of the applicable LOTR policy (version 1.0, dated 27 February 2018).
In the case of S, permission to apply for judicial review was refused on the papers by Lane J. on 9 December 2021, but granted at an oral renewal application on 18 March 2022.
In the case of AZ, permission to apply for judicial review was granted on the papers by Bennathan J. on 8 February 2022.
Factual background
History of events
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 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 Embassy and other NATO Embassies have remained closed.
Operation Pitting
“Operation Pitting” was the name given to the UK Government's mission to evacuate British nationals, and others at risk from the Taliban, when Kabul fell. It was initially planned with the intention of evacuating two groups. First, British nationals and their families, who were the responsibility of the Foreign and Commonwealth Development Office (“FCDO”). Second, Afghans who were given leave to enter the UK under the ARAP, who were the responsibility of the Ministry of Defence (“MoD”).
From the week beginning 9 August 2021, Ministers were seeking to evacuate other at-risk Afghan nationals, who were not likely to be eligible for ARAP, to take advantage of spare flight capacity not required to evacuate the two groups originally identified. To achieve this objective, it was agreed that selected persons, who appeared to meet the agreed criteria, would be eligible for a grant of LOTR by the Secretary of State for the Home Department (“SSHD”), and would be called forward to board evacuation flights, subject to security checks. The Government did not have time or capacity to process their applications for LOTR in Afghanistan: applications had to be approved either at a staging post at Dubai, or on arrival in the UK. This scheme became known informally as “Pitting LOTR”.
According to Mr Philip Hall, who led the FCDO team responsible for Operation Pitting, three selection criteria were applied, as set out in paragraph 20 of his witness statement:
“(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.
(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;
(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. Or where there would be specific threat to HMG from data disclosure.”
Mr Hall stated that the Contribution criterion had to be met in all cases and then either the Vulnerability criterion or the Sensitivity criterion.
In his witness statement (paragraph 17), Mr Hall said that, on 19 August 2021, FCDO officials recommended to Ministers the following cohorts for evacuation under Pitting LOTR, flight capacity permitting:
“(i) 232 journalists and media
(ii) 80 contractors working in exposed roles for the Embassy
(iii) 44 women's rights activists
(iv) 23 female members of the Afghan National Army
(v) 160 Afghan Government officials with close connection to the UK
(vi) 24 Afghan officials working in Anti-Terrorism Prosecutions Department, National Directorate of Security and Counter Narcotics police
(vii) 50 ARAP family members
(viii) A very few named individuals working for NGOs and implementing partners who had a base outside the UK. which we believed they would likely return if we enabled them to leave Afghanistan.”
Each of these cohorts was linked to a list of individuals, drawn up by FCDO staff. Further lists of extremely vulnerable people and their dependants were added in the following days.
An Evacuation Handling Centre (“EHC”) was set up at the Baron Hotel, located near the airport in Kabul. Support was provided from a Crisis Centre, housed at the FCDO in London, and military support was also provided there. The logistics operation was co-ordinated by the MoD and Permanent Joint Headquarters (“PJHQ”).
Operation Pitting was challenging. The FCDO received thousands of requests for evacuation, both directly from Afghans, and by way of recommendation from Ministers, Members of Parliament, military officers, senior officials, judges and others. It is estimated that the ten relevant mailboxes in the FCDO received 175,000 communications from 13 to 31 August 2021. The FCDO did not have the capacity to fully scrutinise or prioritise all these applications within the short time available. The numbers applying far exceeded the capacity of the airplane seats available, and so potentially eligible persons were left behind....
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