Immigration Solicitors

Sometimes, to really win a case, you need to win it three times

The Afghan Relocations and Assistance Policy (ARAP) displays some of the best, and some of the worst, elements of Britain’s engagement overseas, and immigration policies and processes.

On the positive side, the ARAP scheme was established as Britain acknowledged the “debt of honour” it owed to those at risk of retribution from the Taliban in retaliation for their indispensable assistance to the British mission in Afghanistan. It is important to recognise that there was no legal duty, either in public law or international law, requiring Britain to enact such a program. 

On the downside, the scheme is yet another instance where well-meaning rhetoric and principled policies have been undercut by systematic under-resourcing, obstructive tactics towards desperate applicants and their representatives, and attempts to backtrack on commitments that the government freely entered into. Among these shortcomings, the chronic under-resourcing stands out as the most glaring fault. Despite the ARAP being designed to aid those in imminent danger, even the most flawless scheme loses its efficacy when plagued by delays so severe that by the time a decision is reached, the Taliban has caught up with the applicant.

Regardless of the initial intentions, maintaining staffing levels in the single digits to handle 131,000 applications, amidst severe and notorious delays, inevitably meant that for the vast majority of applicants, even a positive decision arrived far too late to prove any assistance. This article provides an example of the immense hurdles applicants face due to scheme’s shortcomings, illustrated through the prism of one claim.

XX’s application for ARAP

XX worked in Afghanistan’s mining sector, which ranked as the Taliban’s second-largest source of funds following opium production during their insurgency. XX worked on a project funded indirectly by the UK through a non-governmental agency aimed at bringing mining activities under much closer supervision and control by the Afghan national government. While the project partially aimed to facilitate international investment in the mining sector, combatting the endemic corruption and thereby curtailing flow of funds to the Taliban was an important objective of the project. XX faced direct threats from the Taliban due to their involvement in this initiative.

When it became clear that the Taliban would takeover, XX and seven members of his team submitted ARAP applications. XX submitted that he qualified for the program as he met the criteria: (i) he worked alongside a UK government operation, (ii) which contributed to UK security goals and anti-corruption measures, and (iii) was thereby at risk. Shortly after, all other team members were granted clearance for evacuation to the UK via Operation Pitting (the airlift from Kabul), while XX’s house was raided by the Taliban. Fortunately, he narrowly escaped capture and went into hiding, separated from his family who also went into hiding.

Duncan Lewis Solicitors issued repeated complaints regarding the prolonged delays and mishandling of XX’s ARAP application. Despite these efforts, the matter was eventually refused in July 2022, with the Ministry of Defence rejecting the ARAP application on the basis that XX had not worked with a UK government department or provided assistance.

Challenge to July 2022 decision

XX applied for an internal review of the decision to refuse his application and initiated legal action for judicial review against the Ministry of Defence and the Home Office. The basis of the challenge asserted that the decision was irrational, and the delay in resolving the application unlawful.

The Defendants argued that since the internal review decision was still pending, the judicial review was premature. This argument resulted in permission being refused, as the Court deemed the delay leading up to the decision as no longer relevant. Undeterred, XX renewed his claim. After a contested hearing , the Court granted permission on the grounds that the decision was unlawful, and the overall delay was unreasonable. The court emphasised that the internal review process did not suffice as an alternative remedy, considering the imminent threat to life. Consequently, expedition was ordered.

Upon filing their defence, the Defendants now accepted that XX indeed met the criteria of having “worked alongside” a government department. However, they shifted their stance, now asserting that the primary reason for the failure of XX’s ARAP application was that he had not contributed to counter-terrorism objectives. In a last minute bid, the Defendants offered to render a further decision expeditiously, just a couple of weeks prior to the substantive hearing.

XX rejected the offer for two principal reasons. Firstly, the Defendants’ insistence on refusing his ARAP application meant that accepting the offer would only have led to further delays, necessitating another judicial review. More significantly, the Defendant had yet to explain the specific aspects of XX’s case they did not accept or provide any insight into their decision-making process. XX pointed out that all relevant materials should have been disclosed in accordance with the Defendants’ duty of candour. Consequently, XX formally requested this information under Part 18 of the CPR. Even after this request, the documents were not produced, prompting XX to apply for the substantive hearing to be converted into a hearing to consider disclosure orders. Eventually, the Defendants agreed to:

1. provide the documents sought within 21 days,
2. pay the costs associated with the disclosure on the indemnity basis,
3. withdraw the decision under review, and
4. if the further decision was a refusal, that XX should be permitted to amend his grounds to challenge the new refusal

Regrettably, the new decision delivered in February was yet another outright refusal, which again lacked any explanation for its basis.

Challenge to Feb 2023 decision

The Defendants failed to produce many of the requested documents. However, among those provided, it became evident that the Ministry of Defence (MoD) had asked the Foreign Commonwealth & Development Office (FCDO) for its view on XX’s involvement in Afghanistan. The FCDO’s response indicated that the project in which XX was engaged was not deemed related to national security. Other documents showed that XX among a select few identified (as of August 2021) as being at especial risk, and yet his contact details had been incorrectly recorded.

XX’s revised grounds for judicial review highlighted that his individual role within the expansive project was focused on anti-corruption and anti-terrorism objectives. Furthermore, it was emphasised that no reason had been advanced for suggesting otherwise.

Just before the re-listed final hearing in June, the Defendants suddenly “discovered” that XX had indeed been offered evacuation under Operation Pitting. However, the email had been sent to the wrong address and never reached XX, validating XX’s previous claims. This prompted the MoD to swiftly accept that XX met the criteria for ARAP.

Initially, the Defendants opposed XX’s contention that his costs should be paid on the indemnity basis, blaming XX for using incorrect reference numbers in correspondence with them, which they stated had led to the delay in discovering the Operation Pitting invitation. However, upon reviewing the correspondence history, we highlighted that XX had used a reference number provided by the MoD itself. At this point, the Defendants conceded to covering the costs of challenging the February decision on an indemnity basis. Additionally, the Defendants agreed to “prioritise completing the remaining steps of the ARAP process for the Claimant and his family”.

XX had to win his case twice in one judicial review. Yet, this is not the end of the matter; the intricacies of his second judicial review will be explored in an upcoming article.

XX was represented by Public Law Director, James Packer and former caseworker Niall Cameron. James litigates across a broad range of areas and regularly conducts test cases concerning issues involving access to the courts, unlawful detention, enforced removals from the UK, challenges to decisions to refuse legal aid and associated litigation. He is consistently recognised in Chambers and Partners as "utterly fearless" and The Legal 500 as an "outstanding lawyer".

For advice on any public law and immigration matter contact public law director James Packer via email at JamesP@duncanlewis.com  or via telephone on 07920077042.

Catherine Meredith, of Doughty Street Chambers, led by Tim Buley KC, of Landmark Chambers, were also instructed to represent XX in this matter. We thank them for their effort and skill in assisting XX