Claim No: CO/2005/2022
In the High Court of Justice
Queen’s Bench Division
20 July 2022
The Honourable Mrs Justice May DBE
The Queen on the application of
FMC & FMD (by their mother, FMB, as litigation friend)
Secretary of State for the Home Department
Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimant and the Acknowledgement(s) of service filed by the Defendant
ORDER by the Honourable Mrs Justice May DBE
1. The four claimants are granted anonymity and shall be respectively referred to in these proceedings as FMA, FMB, FMC, FMD.
2. Pursuant to CPR 39.2(4), there shall be no publication of the name or address of any claimant or of any particulars of the case likely to lead to the identification of any claimant.
3. The second claimant is appointed as the litigation friend of the third and fourth claimants.
4. The Defendant shall file and serve any application under s.6 of the Justice and Security Act 2013 for a closed material procedure, if so advised, by no later than 4pm on 28 July 2022.
5. The application for permission to apply for judicial review is adjourned to be listed in court as a “rolled-up hearing”, on notice to the Defendant, on a date to be fixed at the case management hearing listed below. If permission to apply for judicial review is granted at that rolled-up hearing, the Court will proceed immediately to determine the substantive claim.
6. The claim be listed for a case management hearing with a time estimate of 30 minutes on 4 August 2022. The case management hearing may be vacated if the parties agree directions, such agreed directions to include:
a. Management of any application under s.6 of the Justice and Security Act 2013;
b. Provision for further evidence;
c. Hearing bundles
d. Skeleton Arguments
e. Estimated length of hearings.
7. In the event of directions being agreed, the court will list the case for a rolled-up hearing on the first available date. The case is suitable for vacation business.
1. In its AoS the Defendant invites permission to be refused without more, but has reserved the right to make an application under s.6 of the JSA 2013 if so advised. In my view the court cannot meaningfully determine permission without giving the Defendant the opportunity first to make such an application, but that must be resolved speedily, for the reasons given below.
2. These are the second set of proceedings issued by the Claimants, the first having been issued in November 2021 following the Defendant’s first decision refusing entry dated 16 August 2021. Those proceedings were compromised in December 2021 when the Defendant undertook to withdraw and re-make her decision. Thereafter the Defendant made a fresh decision dated 4 March 2022 in which she again refused entry. This second claim was issued in June 2022. Considerable time has thus elapsed since the allies’ withdrawal from Afghanistan in April 2021 and since the Defendant’s first decision refusing entry to these Claimants. These proceedings should now be resolved urgently, as the Claimants remain in Afghanistan where they are said to be living under circumstances of secrecy and danger.
3. In my judgment the most expeditious way of managing this claim, consistent with fairness, is to order that any application by the Defendant for a closed material procedure shall be made promptly, that permission should be determined at a rolled up hearing, and that the claim be listed for further directions to that end.