The King on the application of GA v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 19 April 2023 |
| Neutral Citation | [2023] EWHC 871 (Admin) |
| Docket Number | Case No: CO/491/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 871 (Admin)
THE HON. Mr Justice Bourne
Case No: CO/491/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Irena Sabic KC and Maria Moodie (instructed by Wilson Solicitors LLP) for the Claimant
Edward Brown KC and Richard Evans (instructed by Government Legal Department) for the Defendant
Hearing dates: 7 March 2023
Approved Judgment
This judgment was handed down remotely at 10am on Wednesday 19 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The claimant, a national of Afghanistan, has told the Court that she is living in hiding and that the Taliban are searching for her because she is (1) a former employee of the Afghan Ministry of Justice who drafted criminal and family legislation, (2) a lawyer who has defended women and prosecuted men in cases relating to violence against women and has acted as a trial observer in terrorism trials, (3) a women's rights activist and (4) closely related to two individuals who were employed by the US military to protect their personnel. For that reason there is an order protecting her anonymity.
In this judicial review claim she challenges the defendant's operation and implementation of the Afghan Citizens Resettlement Scheme (“ACRS”).
The claimant originally sought permission for four grounds of challenge. There are two surviving grounds, for which Lane J granted permission at a hearing on 21 June 2022 and which were subsequently amended with the court's permission. The material grounds and issues have been helpfully summarised in a joint list:
“GROUND 3: ALLEGED UNLAWFUL OPERATION OF ACRS
Issue 1: Are the Defendants acting unlawfully and/or irrationally in their operation of ACRS that frustrates the stated purpose of the policy as regards priority cohorts, regional focus and urgency arising from risk?
Issue 2: Does the Defendants' operation of ACRS breach the Claimant's legitimate expectation, arising from the published policy statements regarding prioritisation and regional focus, of being able to access and be considered for eligibility under the scheme within a reasonable timescale relative to risk?
GROUND 4: SSHD's EXERCISE OF DISCRETION
Has the SSHD acted unlawfully and/or irrationally by failing and/or refusing to consider the exercise of her discretion to grant leave outside the Immigration Rules (“LOTR”) to enter the UK, whether under ACRS or otherwise, to the Claimant based on her individual circumstances?”
However, although those are identified as the grounds and issues, the claimant's counsel Irena Sabic accepts in her skeleton argument that ground 4 stands or falls with ground 3. Accordingly the essential issues are those listed under ground 3.
Meanwhile those two issues share a common theme, which is that the operation of ACRS departs in an unlawful way from the stated purpose or purposes of the Defendant's overall policy or policies on relocation of individuals from Afghanistan. Ms Sabic accepts that she needs to show such a departure, or such a difference between the relevant policy documents, in order to succeed on either issue.
Therefore the entire focus of the claim is on a comparison between two policy documents or sets of policy documents.
Factual and policy background
The details of the claimant's life and career from 2012 onwards are not in dispute for the purposes of this claim. I work on the assumption that she faces a very serious threat from the Taliban.
From 1 April 2021, the UK Government had put in place the Afghan Relocations and Assistance Policy (“ARAP”) for Afghan citizens who worked for or with the UK authorities in roles which exposed them to threats. It set out eligibility criteria for support including the possibility of relocation from Afghanistan to the UK. ARAP itself replaced pre-existing policies which had existed since 2010.
As is well known, the Taliban took control of Afghanistan in August 2021. Between 13 and 28 August 2021 there was a UK military programme to evacuate British nationals and other individuals, known as Operation Pitting. Details of that operation were set out by Lang J in R (S and others) v Secretary of State for Foreign, Commonwealth and Development Affairs and others [2022] EWHC 1402 (Admin).
On 18 August 2021, the Prime Minister announced the intention to create the ACRS.
On 6 September 2021 the Government published guidance which referred to the intention of the policy:
“The Afghan citizens' resettlement scheme (ACRS) will provide protection for people at risk identified as in need. The eligibility requirements will be published in due course but will include those who have contributed to civil society or who face a particular risk from the Taliban. For example, because of their role in standing up for democracy and human rights, or because of their gender, sexuality or religion.”
On 13 September 2021, two important documents were published. These more detailed documents effectively superseded the document published on 6 September. They set out the policy which the claimant alleges has not been properly implemented, or from which she alleges that there has been an unlawful departure.
The first, entitled Afghanistan resettlement and immigration policy statement, is known as “ARIP”. It refers to a number of different strands of policy including ARAP and ACRS. In respect of ACRS eligibility, it stated:
“2. Following rapid work by the Foreign, Commonwealth and Development Office (FCDO), Home Office and Ministry of Defence (MoD) during Op PITTING, we were able to ‘call forward’ a number of other people for evacuation, in addition to the ARAP contingent and British nationals. These people were identified as being particularly at risk. They included female politicians, members of the LGBT community, women's rights activists and judges. Those who were called forward will form part of the Afghan Citizens Resettlement Scheme (ACRS) cohort.’
…
Eligibility and referrals
23. The ACRS will provide those put at risk by recent events in Afghanistan with a route to safety. The scheme will prioritise:
a. those who have assisted the UK efforts in Afghanistan and stood up for values such as democracy, women's rights and freedom of speech, rule of law (for example, judges, women's rights activists, academics, journalists); and
b. vulnerable people, including women and girls at risk, and members of minority groups at risk (including ethnic and religious minorities and LGBT).
24. There will be many more people seeking to come to the UK under the scheme than there are places. It is right that we take a considered approach, working with partners to resettle people to the UK. There will not be a formal Home Office owned application process for the ACRS. Instead, eligible people will be prioritised and referred for resettlement to the UK in one of three ways.
25. First, some of those who arrived in the UK under the evacuation programme, which included individuals who were considered to be at particular risk – including women's rights activists, prosecutors and journalists — will be resettled under the ACRS. People who were notified by the UK government that they had been called forward or specifically authorised for evacuation, but were not able to board flights, will also be offered a place under the scheme if they subsequently come to the UK. Efforts are being made to facilitate their travel to the UK.
26. Second, the government will work with the United Nations High Commissioner for Refugees (UNHCR) to identify and resettle refugees who have fled Afghanistan, replicating the approach the UK has taken in response to the conflict in Syria, and complementing the UK Resettlement Scheme which resettles refugees from across the world. UNHCR has the global mandate to provide international protection and humanitarian assistance to refugees. UNHCR has expertise in the field and will refer refugees based on assessments of protection need. We will work with UNHCR and partners in the region to prioritise those in need of protection, such as women and girls at risk, and ethnic, religious and LGBT minority groups at risk. We will start this process as soon as possible following consultations with UNHCR.
27. Third, the government will work with international partners and NGOs in the region to implement a referral process for those inside Afghanistan, (where safe passage can be arranged,) and for those who have recently fled to countries in the region. This element will seek to ensure we provide protection for members of Afghan civil society who supported the UK and international community effort in Afghanistan. This category may include human and women's rights activists, prosecutors and others at risk. We will need some time to work through the details of this process, which depends on the situation in Afghanistan.
Further details on eligibility
28. The ACRS will be focused on people affected by events in Afghanistan, who are located in Afghanistan or in the region. …”
The second document published on 13 September 2021 was entitled Afghan citizens' resettlement scheme. It contained new guidance on ACRS, stating:
“The Afghan citizens' resettlement scheme (ACRS) will provide protection for people at risk identified as in need.
The scheme will prioritise:
• those who have assisted the UK efforts in Afghanistan and stood up for values such as democracy, women's rights, freedom of speech, and rule of law
• vulnerable people, including women and girls at risk, and members of minority...
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