Sonali Naik KC and Emma Fitzsimons were instructed by Rachael Lenney of Wilsons LLP on behalf of S.
Irena Sabic KC and David Sellwood were instructed by Zoe Cooley of Wilsons LLP on behalf of AZ.
In a judgment of 22 March 2024, Upper Tribunal Judge O’Callaghan allowed the judicial review claims of two Afghan judges, challenging the Home Office’s decisions to refuse them Leave Outside the Immigration Rules (‘LOTR’).
The Applicants, S and AZ, had previously successfully challenged in the High Court the Home Office’s failure to make a decision on their LOTR applications (see our previous article here).
The Upper Tribunal found that the Home Office reached an irrational conclusion that neither Judge could show “compelling, compassionate circumstances”, not least because the decisions contained no express reference to their public security and counterterrorism judicial work [120]. Instead, the decisions adopted an unlawfully narrow approach to the Applicants’ judicial work, despite the wider extent of it being placed front and centre of their LOTR representations [120]. In S’s case, there was no express consideration of her being a female judge [120].
In addition, the decisions stepped back from the clear acceptance in the previous High Court proceedings that both Judges were “at risk of harm because of their respective judicial roles”. The change in position triggered an erroneous approach, excluding expert evidence on the risk of serious harm for judges who previously presided over highly sensitive terrorism and criminal cases in Afghanistan [121-125]. The Home Office also failed to properly consider the evidence from each Judge that they were targeted [126-130]. The Upper Tribunal found that any change in the Home Office’s previous position on risk obliged it, as a matter of procedural fairness, to make reasonable enquiries of the Applicant first (as argued by AZ) [143—144].
The Upper Tribunal also concluded that the failure to identify the Afghan Relocations and Assistance Policy (‘ARAP’) as a starting point for the LOTR assessment was irrational. That is because the imperative underpinning both ‘Pitting LOTR’ (the LOTR granted on the back of HM Government’s Afghan evacuation mission in 2021) and ARAP, is the acceptance of risk of serious harm from the Taliban because of an individual’s contribution to HM Government’s work in Afghanistan from 2001 [167].
The Upper Tribunal quashed the LOTR decisions, and declared that the Home Office shall have regard to the Applicants’ proximity to the ARAP and PITTING LOTR policies, and the judicial findings arising from the claims (both in the Upper Tribunal and previously, in the High Court).
