S (and others) -v- Secretary of State for Foreign, Commonwealth and Development Affairs and others (applications for judicial review)
Case Nos: CO/4106/2021, CO/32/2022 & CO/315/2022
In the High Court of Justice
Queen’s Bench Division
Administrative Court
11 May 2022
Before:
The Honourable Mrs Justice Lang DBE
Between:
CO/4106/2021
The Queen
on the application of
S
-v-
(1) Secretary of State for Foreign, Commonwealth and Development Affairs
(2) Secretary of State for the Home Department
(3) Secretary of State for Defence
Interested parties:
(1) N1
(2) N2
(3) N3
CO/32/2022
The Queen
on the application of
KBL
-v-
(1) Secretary of State for the Home Department
(2) Secretary of State for Foreign, Commonwealth and Development Affairs
(3) Secretary of State for Defence
CO/315/2022
The Queen
on the application of
AZ
-v-
(1) Secretary of State for the Home Department
(2) Secretary of State for Foreign, Commonwealth and Development Affairs
(3) Secretary of State for Defence
Interested parties:
(1) AZZ
(2) KZ
(3) SZ
(4) MZ
(5) HZ
(6) SZZ
(7) ZZ
(8) NZ
On the Court’s own motion and on applications made by the Claimant and the Defendant;
Following consideration of the documents lodged by the parties
Order by the Honourable Mrs Justice Lang DBE
1. Unless stated otherwise, the orders below apply to each of the three claims set out in the heading to this order.
2. On the Court’s own motion, by Monday 16 May 2022, at 10.00 am:
a. the Claimants do file and serve the unagreed chronologies;
b. the Defendants may, if so advised, file alternative chronologies, or identify in a separate document which parts of the Claimants’ chronologies are disputed, and the reason why.
3. On the Defendants’ application, dated 26 April 2022, the date upon which the Defendants must file their Detailed Grounds of Defence and evidence to be relied upon, is extended to 18.30 hours on 22 April 2022. This order varies paragraph 1 of the order of Ms Maggie Silver, Court lawyer, dated 25 April 2022.
4. On the Claimants’ application, dated 29 April 2022, the Claimants do have permission to rely on the Reply to the Detailed Grounds of Defence, dated 29 April 2022.
5. On the Claimants’ application, dated 5 May 2022, to rely upon a joint skeleton argument which is 49 pages long, the Claimants do have permission to file a skeleton argument which exceeds the 25 page limit in CPR 54A PD, paragraph 14.3.
6. On the Claimants’ two applications, both dated 5 May 2022, the Claimants do have permission to adduce in evidence the statements of Judges A, B, and C, exhibited to the third and fourth witness statements of Maria Patsalos dated 27 April 2022 and the witness statement of Emma Wild, dated 28 April 2022.
7. Pursuant to CPR r.39.2, in any report of these proceedings, there shall be no publication of the names and addresses of Judges A, B and C, nor any other particulars likely to lead to their identification. In the proceedings, they will be anonymised and referred to as “Judge A”, “Judge B” and “Judge C”.
8. Non-parties may not obtain any documents from the Court file which have not been anonymised and/or redacted to protect the identity of those parties and witnesses who have been granted anonymity orders in these proceedings.
9. On the Claimants’ application, dated 6 May 2022, the Claimants do have permission to file a core bundle of 509 pages. This order varies paragraph 13(a) of the order of Swift J. dated 22 March 2022.
10. On the Claimants’ application, dated 6 May 2022, the Claimants do have an extension of time for filing the bundles to 9 May 2022. This order varies paragraph 4 of the order of Ms Maggie Silver, Court lawyer, dated 25 April 2022.
11. On the application of the Claimant KBL, dated 29 April 2022, the Claimant KBL do have permission to adduce in evidence the statements of Judges W, X and Y.
12. On the Defendants’ objections, in the letter of 4 May 2022, to the admission of some items in the Claimants’ evidence in reply:
a. The Claimants may rely upon the witness statements from the solicitor for each Claimant: Ms Marcela Navarrete, dated 23 March 2022; Mr Michael Goldin, dated 13 April 2022; and Ms Emma Terenius, dated 11 April 2022.
b. The Claimants may rely upon the witness statement of Mr Tim Foxley, dated 28 April 2022, subject to the exclusion of references to opinion evidence, as follows: paragraph 5, the third sentence in paragraph 6, the first sentence in paragraph 66, the first sentence in paragraph 69, and paragraph 103.
c. The Claimants may not rely upon the witness statement of Mr Tim Davies, dated 29 April 2022.
d. The Claimants may rely upon the evidence relating to the Nowzad evacuation (items 8 to 16 in the index titled “Claimants’ Reply Evidence”) dated 29 April 2022.
13. Costs in the case.
Reasons
Paragraph 2 of the Order
A chronology is required in a judicial review claim, to assist the Court. If it
Form JR-MPA. Judicial Review. Miscellaneous Paper Application. Version September 2020
cannot be agreed (which is often the case), then it is common practice to file an unagreed chronology, with areas of dispute identified. Here, the Defendants have asked for the Claimants to remove their chronologies from the bundle as they do not agree them. However, I am likely to be assisted by chronologies in these claims. Hence this order.
Paragraph 3 of the Order
The Defendants were granted an extension of time for the filing and service of their Detailed Grounds of Defence and evidence to be relied upon, to 16.00 hours on 22 April 2022. A few outstanding points had to be finalised, and so the Detailed Grounds were filed 16 minutes late, and the witness statement of Mr Hall was filed 2 hours and 21 minutes late, on 22 April 2022. I do not consider that these breaches were serious or significant and it is in the interests of justice for the Defendants to be able to rely upon these documents. Relief from sanctions is given, and the time limit is extended to 18.30 hours on 22 April 2022.
Paragraph 4 of the Order
In KBL, the case management directions in the order of 25 January 2022, made provision for a claimant to file a Reply in response to the Detailed Grounds of Defence, if so advised. The orders in S and AZ only made provision for evidence in reply, following the standard template, but nevertheless the Court has a discretion to permit a Reply to be filed. I consider that the Reply helpfully clarifies the Claimants’ cases, and accordingly should be permitted.
Paragraph 5 of the Order
A lengthy skeleton argument is justified as this is a consolidation of three quite different claims, and there are a substantial number of complex legal and evidential issues to be considered.
Paragraphs 6 – 8 of the Order
The order of Swift J., dated 22 March 2022, expressly provided at paragraph 10 that “The Claimants may file and serve any evidence in reply by 4pm on 27 April 2022”. The Claimants were not required to seek permission. An order in the same terms was made by Ms Maggie Silver, Court lawyer, on 25 April 2022, when she extended the time limits.
The evidence of Judges A, B and C is relevant and admissible as it supports the Claimants’ submissions on inconsistent treatment, the operation of the schemes for entry to the UK, and perversity. The Defendants’ Detailed Grounds and evidence took issue with the Claimants’ submissions on these issues, and the Claimants are entitled to respond with further submissions and evidence.
The anonymity orders are not opposed by the Defendants. A departure from the principle of open justice is clearly justified as these individuals are at risk of harm, for the reasons given in the application.
The Claimants’ solicitors should take steps to file with the Court a set of bundles that have been anonymised and redacted, to protect the identity of all those who have been granted anonymity orders, and at the same time, to explain to the Court that earlier bundles and individual documents which have not been anonymised and redacted ought not to be disclosed to third parties.
Paragraphs 9 & 10 of the Order
It appears that the application to extend time dated 4 May 2022 was not determined, but it has been superseded by the application of 6 May 2022.
I do not consider that the failures to comply with the orders of Swift J. and Ms Maggie Silver, Court lawyer, were serious or significant, and I consider that the reasons given for the failures, in the Claimants’ application dated 6 May 2022, are understandable, in all the circumstances of this case. Relief from sanctions is granted.
Paragraph 11 of the Order
The evidence of Judges W, X and Y is relevant to the issues of inconsistent treatment, the operation of the schemes for admission to the UK, and perversity. Swift J. granted the other Claimants – S and AZ – permission to rely upon the statements of Judges W, X and Y, in an order dated 13 April 2022. The Claimant KBL ought to be allowed to rely upon these statements too.
Paragraph 12 of the Order
The order of Swift J., dated 22 March 2022, expressly provided at paragraph 10 that “The Claimants may file and serve any evidence in reply by 4pm on 27 April 2022”. The Claimants were not required to seek permission. An order in the same terms was made by Ms Maggie Silver, Court lawyer, on 25 April 2022, when she extended the time limits.
Sub-paragraph 12(a)
The Claimants filed these three statements because each Claimant’s solicitor wrote separately to the First Defendant setting out the request to accept their applications/representations as valid, and to make an in-principle decision on a grant of Leave Outside the Rules (“LOTR”). Although this has involved duplication, it was a prudent precaution for the Claimants to take, given the Defendants’ combative litigation style. I accept the Claimants’ submission that this evidence is both relevant and important as it goes to the question of the ability of the Claimants’ to apply to enter the UK. The Defendants will be very familiar with the content of the witness statements as it describes their own schemes.
Sub-paragraph 12(b)
In the order 13 April 2022, Swift J. refused the Claimants’ application to rely on expert evidence in the form of three statements by Mr Foxley, and explained in his Reasons:
“I do not consider that the reports comprise expert evidence. The evidence is evidence of fact – setting out details of events or and relating to the role of UK armed forces in Afghanistan. Mr Foxley appears to be well-informed on these matters, but that is not the same as saying the evidence is expert evidence. If the Claimant wishes to rely on these matters, so far as they are relevant to be determined in the claim, they should be contained in a witness statement made by Mr Foxley.”
In response, the Claimants have adduced a witness statement by Mr Foxley setting out matters of fact which appear to be relevant to the factual background of the three claims. In the light of Swift J.’s order, the statement is admissible. However, as Mr Foxley is not permitted to give evidence as an expert witness, he cannot express his opinions, as opposed to facts. Therefore the passages which do express opinions, or refer to opinion evidence, are to be excluded, by drawing a line through them.
Sub-paragraph 12(c)
In principle, I consider that the Claimants are entitled to adduce evidence of the Defendants’ unreliable recording and processing of online applications under ARAP, as it is relevant to S’s case in which the Defendants have repeatedly denied that S made an application under the Afghan Relocation and Assistance Policy (“ARAP”), and this was the basis upon which they declined to make any decision on whether to grant LOTR. The problem is that Mr Davies has collated information provided to him by an international NGO involved in attempting to evacuate Afghan employees, but both the NGO and the individuals concerned have requested anonymity orders, in particular to protect themselves from adverse responses by the Defendants. That means that the Defendants have no means of cross-checking the accuracy of the data provided. In those circumstances, I consider it would be unfair to the Defendants to allow this evidence to be admitted.
Sub-paragraph 12(d)
The Nowzad evacuation was initially raised by the Claimants. It was addressed by the Defendants in their pleadings and evidence. The Claimants wish to adduce this further evidence in response because they consider that the Defendants have not adequately addressed the decision-making process that led to the evacuation. I consider that they are entitled to do so. I do not accept that the Defendants will not be able to respond to this further evidence in time, as the issue is one with which they are familiar.