KBL v Secretary of State for the Home Department [2023] EWHC 87 (Admin)
This case considered an Afghan national who sought judicial review after she was refused leave to enter the United Kingdom.
Before the Taliban regained control of Afghanistan, the Claimant, “KBL”, was a well-known women’s rights activist and government official. Despite her prominent role, she was not evacuated nor “called forward” during the British military operation “Operation Pitting”. However, the Defendants (the Secretary of State for the Home Department (SSHD), the Secretary of State for Foreign, Commonwealth and Development Affairs (SSFCDA), and the Secretary of State for Defence (SSD)) accepted that the Claimant may be at risk of serious harm from the Taliban. Unfortunately for the Claimant, this undisputed point was not enough to win her case.
KBL had submitted a request for permission under the Afghan Relocations and Assistance Policy (ARAP). This was followed by arguments in favour for leave to enter under ARAP, the Afghan Citizen’s Resettlement Scheme (ACRS), and leave outside of the Rules (LOTR). After a month with no outcome, the Claimant protested the delay in decision-making in a letter before claim. She then received a response from the Government Legal Department a month afterwards stating that they had not reached a decision on the ARAP request but that nonetheless her application would not be considered for grant under ACRS or LOTR. KBL’s application was not considered for a grant under ACRS as the programme did not have an individual application process and she was not considered under LOTR as she had used an incorrect application form, did not enrol her biometrics, and did not request a waiver from this requirement as a part of her application.
In fear of being discovered by the Taliban, KBL fled to Pakistan on a visit visa. Prior to the expiry of her visa, she returned to Afghanistan as she believed that if she overstayed, she would be at risk of being arrested by the Pakistani authorities and then handed into the custody of the Taliban. Shortly after, she received a decision on her application stating that she did not meet the criteria under ARAP and was therefore not eligible for relocation. Her application was refused.
Following the ruling in S & AZ v Secretary of State for the Home Department [2022] EWCA Civ 1092, Mrs Justice Lang stated that a LOTR application cannot be attached to ARAP request, and the Applicant must instead use a proper immigration application form. Mrs Justice Lang therefore found that the Home Office’s reasoning was correct. Further, with regards to KBL’s biometrics, Mrs Justice Lang found that, as KBL had successfully travelled to Pakistan on a visit visa, she would not be able to apply for a waiver of the biometrics requirement as she could therefore have enrolled her biometrics by travelling to Pakistan as she demonstrated that she could.
The disappointment for KBL did not stop there though. Mrs Justice Lang found that, were KBL to make an LOTR application on a correct form, the relevant policies that would apply would be those in place when a decision is made, not those in place prior such as the Operation Pitting guidance. She then went further and concluded that an Applicant did not have a legitimate expectation that they would be treated equally to those evacuated under the Operation Pitting guidance even if their situation was similar. This was because there was no “clear, unambiguous, and unqualified representation” that the decisions about who would be prioritised for evacuation would be fair and consistent. The guidance was only guidance and did not constitute definite rules. KBL’s claim for judicial review was therefore dismissed.
For KBL, the route available to her would now be to make a new application for LOTR on an acceptable form, travel to Pakistan again, and enrol her biometrics there. A dangerous course of action and one which shows that the government is not doing all it can for people that it accepts are at risk.
By: Hanna Barzinji