The Queen (on the application of JZ) v The Secretary of State for Foreign, Commonwealth and Development Affairs
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven DBE |
| Judgment Date | 01 April 2022 |
| Neutral Citation | [2022] EWHC 771 (Admin) |
| Docket Number | Case No: CO/4090/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 771 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lieven
Case No: CO/4090/2021
and
Ms Sonali Naik QC, Ms Irena Sabic and Ms Emma Fitzsimons (instructed by Wilson Solicitors LLP) for the Claimant
Ms Lisa Giovannetti QC, Mr Mark Vinall and Ms Hafsah Mahsood (instructed by Government Legal Department) for the Defendants
Hearing dates: 24 March 2022
Approved Judgment
This case concerns Judge Z (‘JZ’), an Afghan judge presently in hiding in Kabul, and his family who are also still in Afghanistan. There are two issues before me, whether to allow JZ to amend his claim, which is effectively the consideration of whether permission for judicial review should be granted, and an application for interim relief.
JZ served between July 2008 and May 2011 as judge on the Public Security Bench at the Justice Centre at Bagram Air Force Base and Pol-e-Charki prison in Kabul. He subsequently served in other judicial roles. The fact of his judicial role is not disputed by the Defendant, and there is before the court a letter of appointment, his judicial photographic ID cards and a letter from US Colonel Thomas English referring to the role JZ, amongst others, played in maintaining the US mission in Afghanistan. This material is relevant because it does, to a considerable degree, fix who JZ is, both in appearance and background history.
JZ says, and again this is not disputed, that he tried a number of cases of Taliban insurgents, including imposing lengthy prison sentences. There is evidence that well before 2021 JZ had received threats and had been provided with security by US forces.
Days before the fall of Kabul, JZ began efforts to try to leave Afghanistan with his family, assisted by his brother, Saif Qazizada, a British citizen living in the UK. Mr Qazizada, through his work as a security professional, made contact with various people connected with Operation Pitting, the UK operation seeking to evacuate UK nationals and non-nationals from Afghanistan at the time of the Taliban's entry into Kabul in late August 2021. In his evidence, Mr Qazizada anonymises the names of the people he was in contact with and has said that he does not have their consent to share personal identifiable information. I note that these people all appear likely to be UK citizens living in the UK who were involved in Operation Pitting. I will return to this matter below.
Mr Qazizada in his evidence refers to the following communications which he, and then JZ, had with these contacts between 25–30 August 2021.
On 14 August JZ applied under the Afghan Relocations and Assistance Policy (‘ARAP’) scheme for relocation to the UK. Mr Qazizada made contact with a colleague in Operation Pitting on 23 August who said he had “pinged” some other colleagues about JZ. Mr Qazizada provided details of JZ and his family via WhatsApp, including dates of birth and passport numbers.
Mr Qazizada's witness statement dated 23 March 2022 states:
“16. Between 00:49 and 00:51 on 26 August 2021 PM messaged via WhatsApp “can you confirm ASAP where your brother and family are” “an exception has been made thus far for them. Cannot influence final step”, “they need to get to Abbey Gate past TB checkpoint ASAP”, please revert ASAP”
17. At 00:51 on 26 August 2021 PM also tried calling me, but I was unable to take the call as I fell asleep on my chair waiting for his call.
18. When I did not answer, PM called my brother at 03:23 Kabul time informing him that he, alongside his wife, 6 children and brother, Waqaruddin Qazizada must go to Abbey Gate, Kabul Airport.
19. At 1:10 on 26 August my nephew messaged me via WhatsApp. “we got call from the UK, he tells me that we come to abigate [Abbey Gate] door of the airport I also asked him that where is the gate located he tells that he don't knows”.”
There is a WhatsApp message in the following terms:
“Re Urgent; Saif's family need urgent evacuation
Ok
Please advise the family to make their way to the British embassy compound in Kabul – there is transport from there to the airport.
The Taliban are blocking access by Afghan nationals to the airport so don't try that
UK operations will wind down on Friday COP to allow safe withdrawal of UK forces prior to final US withdrawl
They are on the list of approved persons according to the Foreign Office
Good luck and god speed”
The name at the foot of this message is cut off, but for somebody with a list of people concerned in Operation Pitting it would not be difficult to decipher. The Defendant says this letter is not in a format generally used and that she cannot investigate it without being told the name of the author. Ms Sabic says that if permission is granted then the Claimant, and in particular Mr Qazizada can consider further whether the name can be revealed. In my view, at the very least this message needs further investigation by the Defendant.
The material disclosed, so far, by the Defendant seems to support an analysis that JZ was very close to being called forward for evacuation. However, the evacuation process rapidly ceased, and the Defendant says the relevant Panel was not convened “because of the deteriorating security situation”.
The Claimant and his family did not succeed in leaving Afghanistan. They are currently in hiding, separately, in Afghanistan. JZ says he is being actively sought by the Taliban, with the Taliban having come to the family home to try to find him and having tried to abduct his 16 year old son in September 2021. Mr Qazizada currently has no direct contact with him because of the risk of the Taliban identifying his location through mobile phone communications. Mr Qazizada's evidence is that he has been told that in the first week of March the Taliban had again searched JZ's house.
On 9 September 2021 the Claimant's legal representatives wrote to the Government Legal Department (‘GLD’) on behalf of a group of Afghan judges and lawyers with an urgent request that they be granted visas. After some correspondence between the parties, on 20 October 2021 the Defendant refused the Claimant's application under ARAP. The most relevant parts of the decision letter are as follows:
“In addition to the above, I have applied my own knowledge developed through heading the Counter Terrorism Team at the British Embassy in Kabul (BE Kabul) since January 2021 to its closure in August 2021, I consulted with my team who worked with me there and who on my behalf undertook enquiries with Afghan judges relocated to the UK under Operation PITTING. These confirm that [JZ] was a judge, who most recently sat in the Traffic Courts in Kabul.
My knowledge of the application of military and civilian law in justice operations at Bagram Air Base is limited. I note that in June 2010, the Justice Centre in Parwan became an Afghan controlled and operated court that benefitted from mentoring and training by coalition forces. Prior to June 2010 (during the applicant's employment) cases were prosecuted under the US Law of Armed Conflict and it was a US military establishment.”
The decision further states that the following test was applied:
“individuals who (1) had worked in a role that made a material contribution to HMG's mission in Afghanistan, and (2) without whose work the UK's operations would have been adversely affected, and (3) who were now at risk because of their work given the changing situation in Afghanistan.”
The decision maker refused to sponsor the Claimant's application for the following reasons:
“2. On the evidence provided to me, I have concluded that the applicant was indeed a judge within Afghanistan and sat as a judge at the Justice Centre in Parwan (referred to in the evidence bundle as Bagram Air Force Base) and at Pol-e-Charki prison. I note the threats the applicant claims are against him. I am personally aware of threats made against other members of the Afghan Justice System that considered issues of Afghanistan's national security.
3. I note that the US Marshals Service provided support and training whilst [JZ] worked at the Justice Centre in Parwan demonstrating the high threat he faced in 2008–11. [JZ's] own statement (para 15, page 11 of the evidence bundle) references that some of those he convicted would have been released by now. In addition, I am aware that many other prisoners have now been released either as a consequence of the US Taliban peace deal (referred to in the statement) or the thousands of detainees let out of prison by the Taliban following the collapse of the Afghan Government.
4. The translated threat document (pages 25 to 27 of the evidence bundle) does make reference to [JZ] having “imprisoned many of our members/personnel”, whilst this might well be a consequence of his time at the Justice Centre in Parwan, there is no mention of his involvement with international forces or foreign governments.
5. In light of these considerations, whilst I accept that [JZ] is at risk, I am not satisfied that the threat to [JZ] is heightened as a consequence of engagement with the United Kingdom. My decision not to sponsor this application are further based on the following factors:
6. I have no evidence to lead me to believe that [JZ] was an employee of Her...
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