Claim number: CO/107/2023
In the High Court of Justice
King’s Bench Division
12 April 2023
Sir Ross Cranston sitting as a High Court judge
The King on the application of
Secretary of State for the Home Department
Secretary of State for Defence
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 of Service filed by the Defendants.
ORDER by Sir Ross Cranston sitting as a High Court judge
- The application for permission to apply for judicial review is refused.
- The claimant has permission (i) to amend his grounds, but subject to para. 3 below; (ii) to admit the four documents pursuant to the application notice of 31 January 2023.
- The claimant’s application to amend ground 4 is refused (the Secretary of State for the Home Department’s decision to refuse leave outside the rules dated 3 February 2023).
- Pursuant to Rule 39.2(4) of the Civil Procedure Rules, the identity of the claimant and his family members shall not be disclosed to any person who is not a party to these proceedings without permission of the Court. The claimant shall be referred to as YY in these proceedings. Nothing shall be published which may reveal the name or address of the claimant or the names, ages or address of his relatives, or any other details liable to lead to their identification.
- Pursuant to Rule 5.4C of the Civil Procedure Rules, a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been completely anonymised and all references which are capable of leading to the identification of the claimant has been deleted or otherwise redacted from those documents.
- These restrictions will continue until further order, but they may be reviewed by the court on application by any person who wishes to set aside or vary the order for anonymity. Any request for reconsideration must be made in writing on not less than 14 days written notice to the parties and stating reasons in support.
- The costs of preparing the Acknowledgement of Service are to be paid by the claimant to the defendant, summarily assessed in the sum of £3,752.00.
- The claimant has the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amount of costs that the claimant shall pay shall be determined on an application by the defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the claimant to the amount of costs claimed shall be dealt with on that occasion.
- The claimant challenged (i) the Secretary of State for Defence’s decision of 11 October 2022 that he is not eligible for relocation to the UK under the Afghan Relocation and Assistance scheme (ARAP), and (ii) the Secretary of State for the Home Department’s handling of his application for ‘Leave outside the Immigration Rules’ (LOTR).
- The position has moved on from what it was at the time of the original application for permission as explained below.
Ground 1: Unlawful delay in processing request for relocation under ARAP
- The Secretary of State for Defence made a decision on 11 October 2022 regarding the claimant’s application for relocation under ARAP. Any challenge to the time taken until then is academic.
- So I take this ground as a challenge by the claimant regarding the time taken to process his request for a review of that decision. He made that application for review on 14 October 2022.
- At this point this ground is not arguable when the time taken to-date in respect of the review (just under 6 months) is not so unreasonable to surpass the high threshold of irrationality which applies. The Secretary of State has given rational reasons for not accepting that the claimant’s life in Turkey is at risk so as to escalate the review.
- However, there will be a point in the not too distant future when it will be arguable that there has been unlawful delay in processing the claimant’s ARAP review. Processing times for similar applications will be one factor in the court’s consideration of this issue.
Ground 2: Unlawful refusal of ARAP, for irrationality or want of reasons
- Given that the request for review dated 14 October 2022 is ongoing, this ground is premature. I accept the Secretary of State’s submission that as a merits review it is an alternative remedy which at this point precludes judicial review.
Ground 3: abandoned.
Ground 4: Challenge to grant leave outside the Immigration Rules/LOTR
- The claimant has applied to amend its statement of facts and grounds and to rely on further evidence to challenge the Secretary of State for the Home Department’s refusal on 3 February 2023 of his LOTR application.
- The claimant contends that to amend ground 4 is in the interests of efficiency, expedition, and justice (the issues are intertwined with the other issues in this claim).
- In my view the claimant should pursue a separate claim in respect of the LOTR decision in the ordinary way. The issues are not intertwined. A separate claim is especially apposite when the appropriate venue for a LOTR challenge is not this court but the Upper Tribunal (Immigration and Asylum Chamber).