Upper Tribunal (Immigration and asylum chamber), 2023-06-13, JR-2022-LON-001012
| Appeal Number | JR-2022-LON-001012 |
| Hearing Date | 16 March 2023 |
| Date | 13 June 2023 |
| Published date | 19 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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JR-2022-LON-001012 |
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In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
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In the matter of an application for Judicial Review |
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The King on the application of |
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JZ |
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(ANONYMITY direction MADE) |
Applicant |
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versus |
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Secretary of State for the Home Department |
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Respondent |
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ORDER |
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BEFORE Upper Tribunal Judge McWilliam and Upper Tribunal Judge Sheridan
AND UPON the applicant withdrawing ground 5 at the hearing, but applying to stay grounds 3 and 4 which was opposed by the respondent;
AND UPON the parties agreeing that the applicant be at liberty to submit any further representations and evidence in support of a decision ‘in principle’ by the respondent in respect of his outstanding application for a Leave Outside the Rules (“LOTR”) within 14 days of this order.
HAVING considered all documents lodged and having heard from Ms S Naik KC, Ms Irena Sabic KC and Emma Fitzsimons, instructed by Wilsons Solicitors, for the applicant and Ms Hafsah Masood, instructed by GLD, for the respondent at a hearing on 15 and 16 March 2023.
IT IS ORDERED THAT:
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The application for judicial review is granted for the reasons given in the attached judgment.
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The decisions of the ECO dated 06.04.2022 and ECM dated, 25.04.2022 are quashed.
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The respondent do make an ‘in principle’ decision on LOTR within 35 days of receipt of the further representations and evidence described in the recital.
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The respondent do pay 50% the applicant’s costs to be assessed on the standard basis, if not agreed.
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We do not consider that it is appropriate to make a costs order against the applicant; however, we consider that the percentage cost order properly reflects the applicant’s lack of success on grounds 3-4, the last minute withdrawal of ground 5 and the unsuccessful interlocutory applications.
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There be detailed assessment of the applicant’s publicly funded costs.
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Permission to appeal is refused. There is no point of law against which the applicant may appeal.
Signed: Joanna McWilliam
Upper Tribunal Judge McWilliam
Dated: 13 June 2023
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): 13 June 2023
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).
IAC-AH-SAR-V2
IN THE UPPER TRIBUNAL
JUDGMENT GIVEN FOLLOWING HEARING
JR-2022-LON-001012
Field House,
Breams Buildings
London
EC4A 1WR
15 and 16 March 2023
The king
(ON The application OF JZ)
(ANONYMITY direction MADE)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE McWILLIAM
UPPER TRIBUNAL JUDGE SHERIDAN
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Ms S Naik KC, Ms I Sabic and Ms Emma Fitzsimons instructed by Wilsons Solicitors appeared on behalf of the Applicant.
Ms H Masood, Counsel instructed by Government Legal Department appeared on behalf of the Respondent.
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ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
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JUDGE McWilliam: We heard this case at a face to face hearing on 15 March 2023. As a result of industrial action effecting rail services we decided that it would be appropriate to conclude the hearing on 16 March by way of a remote hearing. The parties agreed to this.
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The applicant is an Afghan national and former Judge who is seeking leave to enter the United Kingdom. It is common ground that he is at risk of persecution in Afghanistan from the Taliban. He challenges the decision of the Entry Clearance Officer (“ECO”) on 6 April 2022, maintained by the Entry Clearance Manager (“ECM”) on 25 April 2022 refusing him leave to enter the United Kingdom outside the Immigration Rules (“LOTR”).
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It is necessary to briefly summarise details of the various schemes set up by the United Kingdom government available to individuals like the applicant, who worked as a judge in Afghanistan, on the fall of Afghanistan to the Taliban.
Operation Pitting (“OP”)
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OP was the UK military operation to evacuate British nationals and other individuals from Afghanistan which began on 13 August 2021. On 25 August 2021, in the light of a terrorist threat, HMG advised against travel to Kabul airport. OP ended on 28 August 2021, when the final British military personnel withdrew from Afghanistan.
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OP had been planned to implement the HMG’s decision to evacuate British nationals and Afghan nationals qualifying under the Afghan Relocation and Assistance Policy (“ARAP”) and their family members. In August 2021, ministers indicated their willingness to evacuate certain other groups of Afghan nationals provided there was capacity on UK evacuation flights and it did not hinder the priority evacuation of British nationals and those qualifying under ARAP. A number of cohorts were identified and agreed by ministers. Those who were “called forward” for evacuation (this being the process by which individuals were informed that they would be evacuated by HMG from Afghanistan to the UK) and were successfully evacuated were granted LOTR on their arrival in the UK. This evacuation route became known as “OP LOTR” or “Pitting LOTR” in order to distinguish it from ARAP and because LOTR was the type of leave granted to those evacuated under this route. The UK’s last evacuation flight left Afghanistan just before midnight on 28 August 2021.
Immigration Policy following the end of OP
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Following the end of OP on 28 August 2021, the normal policy and process for relocation and resettlement resumed, as formalised in the Home Office’s Afghanistan Resettlement and Immigration Policy Statement (“ARIP”)published on 13 September 2021. The ARAP Policy launched in April 2021 and remains open indefinitely. There are four categories of persons eligible for support under ARAP. At the time of the ARAP decision in this applicant’s case category 4 was defined as follows:-
“The cohort eligible for assistance on a case by case basis are those who worked in meaningful enabling roles alongside HMG, in extraordinary or unconventional contexts, and whose responsible HMG unit builds a credible case for consideration under the scheme (in some cases this includes people employed via contractors to support HMG defence outcomes)”.
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In order to be eligible under category 4, an applicant must not only have worked “alongside HMG” but also have done so in “meaningful enabling roles” defined as “roles that made a material difference to the delivery of the UK mission in Afghanistan, without which operations would have been adversely affected”.
The application process begins with the submission of an online ARAP application to the Ministry of Defence (“MOD”). If the applicant is...
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