Under legal pressure, the UK government has reversed its policy requiring at-risk Afghans seeking relocation to the UK to first obtain suitable accommodation. This post outlines the background and provides an overview of the current legal challenges afoot.
This post provides an update on the UK government's failure to promptly relocate eligible persons under the Afghan Relocations and Assistance Policy ('ARAP') to the UK. The ARAP scheme provides for resettlement to the UK for Afghan citizens who worked with or alongside the UK government or UK armed forces in Afghanistan. Eligible persons and their family members are entitled to the immediate grant of indefinite leave to remain in the UK upon arrival, with a suite of advantages (eg. permission to work, access to welfare benefits, healthcare, public housing, etc.). The UK has on multiple occasions affirmed its commitment to honouring the service of such Afghan citizens and protecting them (and their families) from harm at the hands of the Taliban.
Background
When the ARAP scheme was introduced on 1 April 2021, the government initially made use of 'bridging hotels' to ensure that ARAP individuals were accommodated and were not homeless upon their arrival in the UK. As the government's policy on the use of hotels for asylum seekers has evolved, seemingly under pressure from rising numbers of small-boad arrivals and protests by far-right activist groups, the government has sought to end the use of bridging hotels for Afghans relocated to the UK and new ARAP arrivals.
Following a decision by Prime Minister Rishi Sunak in November 2022, the government stopped relocating ARAP individuals to the UK unless and until they had secured suitable, non-hotel accommodation here. Quite how ARAP individuals, some of whom fled Afghanistan with what they could carry, were expected to source their own accommodation in the UK remains unclear to date. The government also stopped issuing UK visas to ARAP eligible persons where suitable accommodation in the UK had not been procured, despite no such changes to the Immigration Rules being laid before Parliament. Neither the Prime Minister's decision nor the consequential suspension of relocations and visa issuing were announced at the time. Their effect was referred to (fleetingly) in a government statement to Parliament in March 2023 by the Minister for Veterans Affairs, Johnny Mercer MP. By 24 April 2023, the government had published a factsheet setting out its position and by 26 May 2023 a government communication was sent to ARAP eligible persons via Whatsapp, confirming the existence of the suitable accommodation requirement, (notwithstanding its lack of legislative approval).
The situation for ARAP individuals in Pakistan
As ARAP relocations ground to a halt following the Prime Ministerial fiat, a significant number of Afghan families remained in hotels in Pakistan for increasingly long periods of time (ie. 6 to 12 months) awaiting their resettlement to the UK. What was intended to be a transitory arrangement morphed into an indefinite 'limbo'. Hundreds of children have had no access to state education in Pakistan owing to their status there. ARAP individuals who obtained Pakistani visas upon entry have seen those visas expire and now lack legal status in Pakistan. Many individuals have been effectively confined to their hotels owing to the threat to their safety posed by the risk of arrest and detention by Pakistani state officials and the acknowledged threat of terrorism.
In late September 2023, there were reports of increasing, widespread arbitrary arrests and detentions of Afghan migrants in Pakistan, resulting in extortion and forcible deportation (ie. 'refoulement') back to Afghanistan. The Pakistani government announced a crackdown on Afghan migrants without legal status, threatening to detain and deport those who remained beyond 1 November 2023, and to confiscate or sanction the businesses (such as hotels) who were assisting or harbouring them. There are rising tensions between Pakistan and Taliban-governed Afghanistan, associated with the domestic security risks from Tehreek-e-Taliban Pakistan and other Taliban affiliate groups.
There are currently approximately 2,300 ARAP eligible persons who the UK has evacuated from Afghanistan and who are residing in third countries. Most are in hotels in Pakistan, paid for by the UK government. As the security situation in Pakistan worsens, they remain at significant risk for as long as the government fails to urgently relocate them.
The legal challenges
At the time of writing, there are a growing number of legal challenges to the government's failings:
- Deighton Pierce Glynn ('DPG') represent claimant families in Pakistani hotels;
- Leigh Day represent a claimant in Iran;
- Bindmans represent claimants in both Pakistan and Iran.
The challenges have been brought variously against the Prime Minister, the Home Secretary, the Ministry of Defence and the Foreign and Commonwealth Office and are backed by an NGO, the Sulha Alliance, and the press, with significant recent coverage in The Independent, courtesy of Holly Bancroft and colleagues.
Thus far, the challenges have led to (or coincided with) the following changes to the UK government's policy.
- Firstly, soon after the DPG challenges commenced, the UK reversed its decision not to issue UK visas where suitable accommodation had not been obtained. This decision was inevitably unsustainable, given the clear requirement in section 3(2) of the Immigration Act 1971 that any such rule should be laid before Parliament. However, note that the government did not publish this reversal for several months and – inexplicably – resisted this point in its defence;
- Secondly, on 20 October 2023, the government confirmed that Ministers had agreed to abandon the requirement (imposed in secret by the Prime Minister) to require suitable, non-hotel accommodation to be secured before facilitating their relocation. ARAP relocations would now proceed 'as quickly as possible' in light of the 1 November 2023 deportation deadline announced by the Pakistani government.
What has the Court decided?
So far, Mr Justice Chamberlain has presided in these cases. The Court has granted permission to apply for judicial review to the DPG claimants on two grounds (relating to irrational decision-making and delays and the duty to maintain a prescriptive policy addressing interim support and the prioritisation of relocations). The Court has commented that its preliminary view, based on the material that it has seen to date, is that there is a 'strongly arguable case' that the Prime Minister's decision in November 2022 was unlawful.
There have been several applications for interim relief in the form of mandatory orders requiring relocation to the UK 'forthwith', once associated bureaucratic hurdles are cleared. On 17 October 2023, the Court granted a mandatory order for the relocation of the Leigh Day claimant, based in Iran. That order was based on the risk particular to the circumstances of that claimant, in the context of the government's wider assessment of the significant threat of deportations from Iran to Afghanistan. On 20 October 2023, the Court declined to grant a generic mandatory order for relocation of the entire ARAP cohort residing in Pakistan and Iran (as sought by the Bindmans claimants). The Court also declined to grant individual interim relief to the DPG claimants in Pakistan, owing to concerns that it was still unclear how the government would go about prioritising what is now a significant number of relocations.
In light of the urgent deportation deadline for ARAP individuals in Pakistan, the Court directed a further hearing on 27 October 2023 (the third hearing in just over a fortnight), to provide the government with an opportunity to confirm how it would prioritise the various ARAP individuals or groups of individuals and, crucially, the timescale(s) in which relocation is anticipated to occur. This would provide the claimants with an opportunity to make applications or representations based on the government's update.
Currently, the Leigh Day claimant's case is due to be heard at a rolled-up hearing on 9 November 2023.
What next?
This is a fast-moving and unusual set of inter-linked cases in a number of ways. There is encouraging news for those ARAP families who have waited in uncertainty and limbo and in fear of their safety for many months now. However, what remains unclear is exactly how and when the government is planning to relocate to the UK and then accommodate over 2,000 persons. While that is a significant undertaking, it is also one that is long overdue, particularly when the claimants have been pressing the government to recognise the urgency and unsustainability of their situation for many months now.
Note: Ben Amunwa is instructed by Daniel Carey & Catherine Dowle of DPG for two claimant families, led by Tom de la Mare KC and, at the 20 October hearing, was led by Charlotte Gilroy KC.