Legal News

It all began at the end of February 2015.

The Afghan Minister for Refugees and Repatriations, Sayed Hussain Alemi Balkhi (a name that I will never forget) met activists and politicians from different countries and boldly said since the departure of international forces, there had been a resurgence in Taliban activity and that now 80% of the country (all but three provinces) were now unsafe. He gave his opinion that removals to Afghanistan from European Countries should be suspended in the light of the deterioration in the security situation. Minister Balkhi asked the attendees to use their contacts to put lobby for the cancellation of two upcoming charter flights, one from Norway on 15 March 2015 and one from the United Kingdom, on 10 March.

Afghanistan has one of the sorriest histories of any country. The people of Afghanistan have suffered from an almost constant war since 1978, when the Afghan government was overthrown by the Soviet backed ‘People’s Democratic Party of Afghanistan’ leading to Afghanistan becoming one of the major battlefields in the cold war. After the withdrawal of the Soviet Union, the ‘muhjahdeen’ squabbled amongst themselves to try to form a central government before the emergence of the radical Islamist group, the Taliban. Civil War continued to blight the country whilst those in Taliban controlled areas suffered from persecution and human rights abuses from the repressive Taliban.

The situation in Afghanistan took another turn after September 11, 2001. Hijackers backed by Osama Bin Laden’s Arab militant group, Al Qaeda shocked the world with their attacks on the United States of America. Al Qaeda and Bin Laden had been given refuge in Afghanistan by the Taliban, their spiritual allies. After the Taliban government refused to extradite key members of Al Qaeda, the American forces launched their invasion of Afghanistan, ‘Operation Enduring Freedom’. The Talban was quickly driven from power and retreated into the shadows.

Although, Afghanistan was free from the Taliban government, it remained unstable and deeply partitioned in the years that followed. A coalition of international forces remained to support a weak central government and found a deeply fractious country with local areas still under the control of insurgency groups such as the Taliban or alternatively brutal militias. From 2013 onwards, International Groups began departing Afghanistan, leaving the responsibility for security in the country to the Afghan Army.
The Minister’s comments came at a time when the situation in Afghanistan was very much out of sight and out of mind.

Governments and the general public were concerned with the highly publicised activities of Daesh in Iraq and Syria as well as other conflicts in the Middle East in countries such as Libya and Egypt.
During this time period the United Kingdom had responded to the asylum claims of Afghan nationals with scorn. Afghan asylum claims were refused at high levels as the government’s guidance was that Afghanistan was safe. The UK’s attitude towards Afghan asylum claims can be identified by the vast number that were deemed suitable for the Detained Fast-Track system, meaning they were prejudged to be able to decide quickly.

The United Kingdom were therefore able to remove Afghan asylum seekers in volume by monthly charter flights. These removals took place at a rate that far outstripped any other European country. However, until the comments of Minister Balkhi, this was not challenged.

My team became aware of these comments due to their sheer novelness. We thought it incredible a senior figure in the Afghan government, with greater knowledge than anyone about the security situation had admitted that his government were not able to protect people and had directly requested for the deferral of the 10 March charter flight.

My colleague, Tamara Smillie initially worked together with my director, Toufique Hossain to speak to the people involved in this meeting and find evidence about this deterioration in the security situation in Afghanistan. Lewis Kett joined the team a couple of days later. On the afternoon on 6 March, four days before the charter flight, I volunteered to assist. We had two barristers on hand, Sonali Naik and Ali Bandegani of Garden Court Chambers. Our team was set. We were ready to challenge and try to stop the flight from taking off on that Tuesday.

What we wanted to do was a truly massive endeavour. The four of us together represented over twenty Afghans due to be removed on that flight. We needed to take instructions and consider the asylum paperwork for each of these clients. We needed prepare representations and judicial review bundles for each. To get this done, we needed to work until the early hours of Monday Morning. After a couple of hours’ sleep, we returned to the office to do it again.

The day of the charter flight turned out to be probably the craziest day of my life so far. The day began with the realisation that we had no internet and no system at our office. It is impossible to do anything at a law firm without access to the internet. Preparing for the biggest day of my career including preparing more judicial review applications without internet access was somehow even harder than impossible.

However, we somehow managed to carry on before running to court, with the lingering feeling that maybe things were not going to go our way. This feeling continued when after we went in front of the President of the Upper Tribunal, who refused the application for interim relief for our first applicant. We began to prepare for the worst.

However, suddenly things began to turn around. The President having refused the first application, proceeded to grant interim relief for twelve others. After sprinting to the Court of Appeal to challenge the refusal of our first client’s interim relief, arriving seconds before the door was locked on us, a Court of Appeal judge prevented his removal. After more out of hours’ injunctions, our final total was twenty removals prevented.

However, whilst we achieved partial success, the flight (with a much reduced passenger list) still departed. We remained concerned that people had been returned to the war ravaged Afghanistan who potentially should not have been.
We also knew that whilst our efforts had led to some fantastic results, we had yet to achieve anything of substance.

About the author: Jamie Bell joined Duncan Lewis in August 2014 as a caseworker in the Public Law/Immigration department. During his studies he wrote his dissertation entitled, An analysis of the current removals process for asylum seekers in the UK and an investigation into the future steps that may be taken in order to ease the process of removal.