The King on the application of Alo and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 22 September 2022 |
| Neutral Citation | [2022] EWHC 2380 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4266/2021 |
[2022] EWHC 2380 (Admin)
Mr Justice Swift
Case No: CO/4266/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tim Owen KC, Rehana Popal, James Fraczyk (instructed by Deighton Pierce Glynn) for the Claimant
Samantha Broadfoot KC, Ben Fullbrook (instructed by GLD) for the Defendant
Angus McCullough KC, Dominic Lewis, Special Advocates (instructed by SASO)
Hearing dates: 12 and 13 May 2022
APPROVED OPEN JUDGMENT
This judgment will be handed down by the Judge 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 at 10:00 am on 22/09/2022
A. Introduction
The First Claimant is an Afghan national who, sometime ago, worked for approximately 4 months, as an interpreter for the British military in Afghanistan. The Second Claimant is the First Claimant's wife. The remaining Claimants are their children.
In April 2021 the Secretary of State for the Defence and the Secretary of State for the Home Office opened the Afghan Relocation and Assistance Policy (‘the ARAP’) to receive applications for assistance from persons who were or had been employed in Afghanistan by Her Majesty's Government. Assistance would be provided if they applicant was considered to be “at serious risk of threat to life”. Successful applications fell into four categories. Category 1 comprised persons judged to be at “high and imminent risk of threat to life”. They would be offered immediate relocation to the United Kingdom. Category 2 comprised persons who had worked in roles considered to have made a material difference “to the delivery of the UK mission in Afghanistan”, which had exposed the person to public recognition as an employee, and left them at risk because of changing circumstances in Afghanistan. This class could also seek relocation to the United Kingdom. Category 3 comprised persons not eligible for relocation but who could be provided with other forms of assistance. Category 4 comprised special cases. The assistance provided to such persons was considered case by case. The ARAP provided that persons eligible for relocation “will have the opportunity to apply for limited leave to enter the UK”. In this way, the ARAP provided a gateway to application for a visa under the Immigration Rules.
The First Claimant made an application under the ARAP for himself, his wife and children. By letter dated 14 May 2021 he was informed that his application had been successful and that he was eligible for relocation to the United Kingdom. The letter went on to explain that to be able to relocate, the First Claimant had to meet the requirements of paragraph 276BA1 of the Immigration Rules. That paragraph provides:
“A person seeking to come to the UK as a relevant Afghan citizen must apply for and obtain entry clearance as a relevant Afghan citizen before they arrive in the UK”
The effect of paragraph 276BA2 is that an application for entry clearance will fail if any of the grounds of refusal at Part 9 of the Immigration Rules applies. The grounds within Part 9 include paragraph 9.3.1 which requires the Secretary of State for the Home Department to refuse an application for entry clearance “… when the applicant's presence in the UK is not conducive to the public good because of their conduct, character, associations or other reason …”.
On 2 June 2021 the Claimants made applications for entry clearance under the Immigration Rules; the First Claimant on the basis he was a “relevant Afghan citizen” as defined at paragraph 276BB1 of the Immigration Rules; the other Claimants as dependants of the First Claimant. By letters dated 30 July 2021 each application was refused. The letter to the to the First Claimant stated as follows:
“ The decision
You have sought entry to the United Kingdom as a relevant Afghan citizen, however your presence in the UK has been assessed as not conducive to the public good on grounds of national security due to your conduct, character and associations. I am therefore satisfied that our presence in the UK would not be conductive to the public good. I therefore refuse your entry clearance to the UK under paragraph 276BC1 and 9.3.1 of Part 9 of the Immigration Rules.”
The applications of each of the other Claimants were refused because the First Claimant was considered to “[constitute] a danger to the community or to the security of the United Kingdom”.
The Claimants challenged these decisions in judicial review proceedings commenced in August 2021. In those proceedings, the Claimants contended that the Secretary of State had acted unlawfully: (a) by failing to give reasons for her decision; (b) by not giving the First Claimant the opportunity to make representations on matters of concern prior to the decision to refuse the applications; (c) because the decision to refuse the First Claimant's application was irrational (with the consequence that the decisions refusing the applications of the other Claimants were erroneous); (d) because automatic refusal of the applications made by the Second to Ninth Claimants, consequent on the refusal of the application made by the First Claimant was unlawful; and (e) because the decisions had failed to take account of relevant matters, or were reached by the Secretary of State in breach of her policy. On 22 October 2021 those proceedings were withdrawn because the Secretary of State had agreed to withdraw the 30 July 2021 decisions and reconsider the visa applications.
On 10 November 2021 the Secretary of State issued new direction letters. These decisions refused the applications for entry clearance. The material part of the letter sent to the First Claimant stated:
“ The decision
You were previously informed of the decision to refuse your visa application in a refusal notice dated 30 July 2021. Following representations made by yourself and dependant family members, we agreed to reconsider your visa applications by Wednesday 10 November 2021. We have undertaken a thorough reconsideration of your visa application for Limited Leave to Ener as a relevant Afghan citizen, taking into account all of the information available to us, including the representations you have put forth in witness statements. Our new decision is outlined below:
You have sought entry clearance to the United Kingdom as a relevant Afghan citizen, however your presence in the UK has been assessed as not conducive to the public good on grounds of national security due to your conduct, character and associations. I am therefore satisfied that your presence in the UK would not be conducive to the public good. I therefore refuse you entry clearance to the UK under Paragraph 276BC1 and 9.3.1 Part 9 of the Immigration Rules.”
In consequence, the applications made by each the Second to Ninth Claimants were, again, refused.
The present judicial review proceedings were issued on 17 December 2021. The Statement of Facts and Grounds advanced eight grounds of challenge. At the beginning of the hearing, Mr Owen KC for the Claimants stated that Grounds 5 to 8 were no longer pursued. The four remaining Grounds are to the following effect. Ground 1 is that the Secretary of State has failed to give reasons for her decisions, contrary to the common law obligation of fairness. The focus of this ground is the decision refusing the First Claimant's application. Ground 2 is that the consequence of the Secretary of State's failure to give reasons is that the determination of the substantive dispute – i.e., whether the Secretary of State has acted unlawfully in refusing the First Claimant's application under the Immigration Rules – cannot be resolved consistent with the requirements of European Convention of Human Rights article 6. For this Ground too, the focus must be on the Secretary of State's approach to explaining why the First Claimant's application was refused. Ground 3 is that the decisions were taken unfairly because there was no ‘minded to’ stage – no opportunity for the Claimants (here again, the position of the First Claimant is key) to be told about and respond to the matters which made it likely that the First Claimant's application would be refused. Ground 4 is that the Secretary of State's assessment that the First Claimant's presence in the United Kingdom would not be conducive to the public good “on grounds of national security due to [his] conduct, character and associations” was not based on reasonable enquiry, rested on a flawed assessment of the information available, and/or failed to take account of the relevant matters.
These proceedings have been conducted using the closed material procedure permitted under Part 2 of the Justice and Security Act 2013. The Secretary of State's contention, which the Claimants accepted, was that, absent a closed material procedure, her defence to the claim would require disclosure of information which, if disclosed, would damage the interests of national security. The consequence of the closed material procedure is that some of the material disclosed by the Secretary of State in response to the claims (“the closed material”) was not disclosed to the Claimants or their legal representatives, but instead provided only to Special Advocates appointed at the request of the Court to represent the Claimants' interests so far as concerns that material. Also, part of the hearing was conducted in private, in the absence of the Claimants and their representatives, albeit again with the assistance of the Special Advocates. A further consequence of the closed material procedure in this case is that part of the reasons in this judgment will not be made public and will not...
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