No Reasonable Expectation Of Equal Treatment Is Found By The High Court In The Afghanistan Evacuation Case

In a separate Afghan evacuation case, the court in KBL v. Secretary of State for the Home Department [2023] EWHC 87 (Admin) considered whether “Operation Pitting” guidance intended for potential beneficiaries of the evacuation gave Afghans in comparable situations a reasonable expectation that they would be treated equally even if they were not evacuated or “called forward.”

Before the Taliban retook power of Afghanistan, KBL was a prominent government official and advocate for women’s rights. Despite this, she was not evacuated as part of UK forces’ partial evacuation operation known as Operation Pitting in August 2021. She was also not “called forward” under the plan, a term for persons the government officially offered to evacuate but ultimately was unable to do so due to logistical issues.

KBL submitted a request for authorization under the Afghan Relocations and Assistance Policy (ARAP) on October 20, 2021. This was followed by arguments in favour of applications under ARAP, the Afghan Citizen’s Resettlement Scheme (ACRS), and leave outside of the Rules (LOTR).

On November 17, 2021, she sent a letter prior to claim challenging the delay in decision-making. Her application would not be taken into consideration for a grant under ACRS (because the programme did not have an individual application process) or LOTR, according to the Government Legal Department’s response on December 13, 2021. (because she did not use an appropriate application form and did not enrol her biometrics or ask for a waiver from this requirement as part of an immigration application).

KBL left with her children to Pakistan on a visa that was only good for 60 days not long after the High Court granted permission. She left Afghanistan before her visa ran out since she didn’t have an interview with the UNHCR at that period and was afraid of being turned over to the Taliban if she overstayed.

Her ARAP application was later turned down. This rejection was not a requirement for the challenge.

Proper Etiquette And Biometrics

Since an applicant cannot attach a LOTR application to an ARAP request but must instead utilise an immigration application form, Lang J determined that the Home Office was proper in not considering her LOTR application in S & AZ v Secretary of State for the Home Department [2022] EWCA Civ 1092.

In a similar vein, she discovered that while some applicants could request and be granted a waiver from having to enrol their biometrics before their application could be considered, this did not apply in KBL’s case because she had successfully travelled to Pakistan so she could enrol her biometrics there:

As the SSHD submitted, following the Court of Appeal’s decision in S and AZ, the Claimant had not made a valid application for LOTR because she used an ARAP application form, not one of the online visa forms specified on the Gov.UK website and the relevant LOTR guidance. Therefore the SSHD did not err in law when she refused to accept her LOTR application as valid, with the inevitable consequence that the Claimant could not make an appointment to provide her biometrics at the VAC in Pakistan.

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A Reasonable Expectation

Although Lang J determined that KBL has not yet submitted a legitimate LOTR application, which means that the Home Office has not yet officially decided whether to grant it, she did lay down some general guidelines for the policy standards that would apply to the evaluation of such a request.

She held that an applicant did not have a legitimate expectation that they will be treated equally to those evacuated or “called forward” under that guidance if their circumstances were sufficiently similar. She made this ruling after finding, unsurprisingly, that the relevant policies that would apply to a future application are those that are in place when the decision on the application is made, ruling out the Operation Pitting guidance.

This is due to the fact that there was no “clear, unambiguous, and unqualified representation” to the effect that the choices made regarding who would be prioritised for evacuation would be made fairly and consistently; rather, it was only intended to serve as guidance as to the measures being taken by the government to evacuate those considered to be at the greatest risk:

I accept that the Claimant potentially came within one or more of the prioritised groups listed because of her work promoting women’s rights, and as a government official. However, applying the test set out by Lord Dyson in Paponette, at [30], on a fair reading, the guidance could not reasonably have been understood as an offer to evacuate anyone in the priority groups, without regard to any selection criteria or practical limitations on the number of evacuation flights. Taken at its highest, it was an offer to consider for assistance those non-British nationals who were at risk, and fell within the priority groups, who contacted the help line listed. No representations were made as to the criteria or processes that the Defendants would apply in addressing any requests for assistance. It is common ground that the Claimant did not see this guidance at the time, and did not make any application for assistance.

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It’s sad that more Afghans, who the government recognises are in high-risk situations, must now navigate additional red tape simply to have their cases considered. We are failing the people we left behind in Afghanistan if KBL has to travel to Pakistan to submit a second application after already making the trip and returning to Afghanistan out of fear of being handed up to the Taliban.

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Written by:

Tahir Shahab Khan

Managing Director

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