Upper Tribunal (Immigration and asylum chamber), 2024-03-25, JR-2022-LON-001667

JR-2022-LON-001667
	In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review
In the matter of an application for Judicial Review
	The King on the application of
	S & AZ (Anonymity Order Made)
		Applicants
	v
	Secretary of State for the Home Department
		Respondent
ORDER

BEFORE Upper Tribunal Judge O’Callaghan

HAVING considered all the documents lodged on behalf of the parties, and having heard from Ms Sonali Naik KC and Ms Emma Fitzsimons for S, instructed by Wilsons Solicitors; Ms Irena Sabic KC and Mr David Sellwood for AZ, instructed by Wilsons Solicitors; and Mr Richard Evans, instructed by the Government Legal Department at a hearing on 19 June 2023

UPON the parties agreeing that the Applicants be at liberty to submit any further representations and evidence in support of a decision ‘in principle’ by the Respondent in respect of their outstanding applications for Leave Outside the Rules (“LOTR”) within 14 days of this order

AND UPON the parties making oral submission on consequential matters before Judge O’Callaghan at Field House on 22 March 2024

IT IS ORDERED THAT:

1. The order for anonymity in respect of the Applicants in these proceedings shall remain in force.

2. The Applicants’ application for judicial review is granted for the reasons given in the Tribunal’s judgment of 22 March 2024.

3. The Respondent’s decisions of 22 July 2022 and 5 September 2022 in respect of both S and AZ, refusing their applications for LOTR (and biometric enrolment at a Visa Application Centre to be deferred until a decision in principle has been made in respect of AZ), are quashed.

4. The Respondent shall make within 35 days of receipt of any further representations described in the recital:

a. Fresh decisions in principle on the Applicants’ applications for LOTR;

b. In respect AZ, a decision on deferral of biometric enrolment at a Visa Application Centre until after a decision in principle has been made.

5. The Respondent shall, when assessing the Applicants’ circumstances for the purposes of their applications for LOTR (and AZ’s request for biometric enrolment at a Visa Application Centre to be deferred until a decision in principle has been made), have regard to the Applicants’ proximity to the ARAP and PITTING LOTR policies, the judicial findings of Lang J in her decision, R (on the application of S and AZ) v Secretary of State for the FCDO & Ors [2022] EWHC 1402 (Admin), and the judicial findings of Upper Tribunal Judge O’Callaghan in his decision dated 21 March 2024 (JR-2022-LON-001667).

6. The Respondent shall pay the Applicants’ reasonable costs to be assessed on the standard basis, if not agreed. The Respondent shall pay 50% of the total sum on account within 56 days of receipt of the final schedules of costs from the Applicants.

7. There be a detailed assessment of the Applicants’ publicly funded costs.

D O’Callaghan

Upper Tribunal Judge

Immigration Asylum Chamber

22 March 2024

The date on which this order was sent is given below

For completion by the Upper Tribunal Immigration and Asylum Chamber

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 25 March 2024

Solicitors:

Ref No.

Home Office Ref:

Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).

Case No: JR-2022-LON-001667

IN THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Field House,

Breams Buildings

London, EC4A 1WR

22 March 2024

Before:

UPPER TRIBUNAL JUDGE O’CALLAGHAN

- - - - - - - - - - - - - - - - - - - -

Between:

THE KING

on the application of

S and AZ

(Anonymity Order Made)

Applicants

- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

- - - - - - - - - - - - - - - - - - - -

Ms Sonali Naik KC, Ms Emma Fitzsimons

(instructed by Wilsons Solicitors LLP), for S

Ms Irena Sabic KC, Mr David Sellwood

(instructed by Wilsons Solicitors LLP), for AZ

Mr Richard Evans

(instructed by the Government Legal Department) for the respondent

Hearing date: 19 June 2023

Further written submissions received from S on 25 September 2023

- - - - - - - - - - - - - - - - - - - -

J U D G M E N T

- - - - - - - - - - - - - - - - - - - -

The Tribunal confirms the anonymity order made by UTJ Lindsley by an Order sealed on 1 March 2023 in the following terms:

Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the applicants (S and AZ). This order applies to, amongst others, the applicants and the respondent. Any failure to comply with this order could give rise to contempt of court proceedings.

Judge O’Callaghan:

1. Introduction

1. The applicants in this matter are two Afghan judges who through their judicial role in public security and counter-terrorism matters are fearful of the Taliban. Both went into hiding in the summer of 2021 and one remains in Afghanistan. Both seek leave to enter the United Kingdom outside of the Immigration Rules (‘LOTR’) along with dependent family members. The respondent has refused their applications.

2. This judgment is in ten main parts, as follows:

i.	Introduction	Paras. 1 - 16
ii.	Anonymity	Paras. 17 - 19
iii.	Procedural History	Paras. 20 - 21
iv.	Legislative and Policy Framework	Paras. 22 - 46
v.	General Background	Paras. 47 - 59
vi.	Factual Background - S	Paras. 60 - 87
vii.	Factual Background - AZ	Paras. 88 - 103
viii.	Grounds of Challenge	Paras. 104 - 110
ix.	Decision	Paras. 111 - 189
x.	Further Steps	Para. 190

3. At the outset I express my gratitude to the legal representatives, both solicitors and counsel, for the high quality of their work both in preparation and at the hearing. There has been delay in this judgment. An explanation has been provided to the parties and their representatives.

4. The applicants are nationals of Afghanistan. Prior to the Taliban coming to power in August 2021 they worked in various judicial roles. Both served, inter alia, in Primary Courts hearing criminal and public security cases including matters concerned with counter-terrorism. At the time of the Taliban coming to power S was sitting in the Juvenile Court of Kabul at appeal level.

5. In these proceedings the respondent acknowledges that S “may have received threats, as a result of the upheaval that occurred both before and during the period of regime transition”. However, it was considered unclear as to...