Upper Tribunal gives guidance on when non-Afghan nationals can be granted indefinite leave to remain under Afghan resettlement scheme

The Upper Tribunal has given useful guidance on when such grants can be made to non-Afghan nationals as well as setting out a summary of the legal principles to be followed on the interpretation of policy. The case is R (Bam Bahadur Gurung) v Secretary of State for the Home Department, JR-2023-LON-002796 and was brought by a Nepalese national who was evacuated from Afghanistan under Operation Pitting.

Background

Mr Gurung, along with twelve other Nepalese and Indian former guards and soldiers, protected the UK and Canadian Embassies in Kabul before the Taliban seized power in August 2021. All were evacuated to the UK by the British Government under Operation Pitting, given six months’ leave to remain, and told they could apply for indefinite leave to remain under the Afghan Citizens Resettlement Scheme if they chose not to return to their home countries.

Five members of the cohort were granted indefinite leave to remain but two of the five were subsequently issued revocation notices saying that the leave had been granted in error. Upon bringing applications for judicial review, the Home Secretary withdrew both revocation notices. The five evacuees now live with settlement in the UK.

As for the remaining eight evacuees, the Home Secretary agreed to reconsider their cases under the Afghan Citizens Resettlement Scheme but decided that they fall outside the scope of the policy as they are not Afghan nationals and can safely return to their country of origin, their evacuation being simply a gesture of “goodwill”.

Application for judicial review

Mr Gurung, as the lead applicant, applied for permission to judicially review that decision.  His core argument was, according to the plain language of the Afghan Citizens Resettlement Scheme, threefold. First, non-Afghan nationals do fall within the scope of Pathway 1 of the scheme.

Second, there is no requirement that non-Afghan nationals must establish risk in their home country if “evacuated under Operation Pitting”. References in the policy to applicants “at risk” involves a backward-looking enquiry i.e., were the evacuees put at risk because of the Taliban takeover? The policy says nothing about future risk for those evacuated.

Third, the position is different for non-Afghan nationals “called forward but not evacuated” who are required to establish there is “no other country they can safely or lawfully reside.” As Mr Gurung and his colleagues are non-Afghan nationals evacuated under Operation Pitting, it was argued they are entitled to indefinite leave to remain under the Afghan Citizens Resettlement Scheme without the need to prove anything more. 

Permission to apply for judicial review was granted by the Upper Tribunal (IAC) on the papers. Not long before the hearing, the policy was amended by the Home Secretary to make it clear that third country nationals do fall within the scope of the policy and that any such claims are to be considered on a case by case basis.

Decision of the Upper Tribunal

In a judgment handed down on 27 September 2024, Dove J and Keith UTJ held that although non-Afghan nationals can apply for resettlement under the Afghan Citizens Resettlement Scheme, they must establish future risk in their home country regardless of whether they were evacuated or merely “called forward”. At paras 78-80, they summarised the position as follows:

To be eligible for resettlement under the ACRS, a potential beneficiary must be put at future risk, by recent events in Afghanistan, such that they require a route to safety.

While the ACRS does not exclude TCNs, (third country nationals) those who can safely return to their home countries of origin do not require resettlement as a route to safety. Past risk alone is not relevant. It is only relevant insofar as it creates or contributes to future risk.

The ACRS provides a clear exception for TCNs who are the immediate family members of those at risk. This is an example of a class of people of the same or similar kind, linked to a person at risk. The exception does not mean that the concept of future risk ceases to apply.

As Mr Gurung was unable to establish risk in his home country, his claim for judicial review was dismissed.

Conclusion

In reaching its conclusion the tribunal grappled with how courts and tribunals should objectively interpret policies where the meaning is contested. At paragraphs 44-57 of its judgment, the tribunal helpfully distilled nine principles of general application. This includes that interpretation of a policy is a matter of law for the tribunal and the correct approach to understanding what a policy means is for the tribunal to decide this for itself.

A policy must be interpreted objectively and the views of a third party on the interpretation are irrelevant. The primary intended readership of the policy must be considered and if there is other material or evidence that those intended readers do not have access to then then they cannot be used to aid in interpretation of the policy. The tribunal also said that an earlier version of a policy may help with interpretation.

The final principle was that “there is an important distinction to be borne in mind when considering cases of this sort between the proper interpretation of a policy and its application. As set out above, the interpretation of a policy is a matter for the court or tribunal; its application and the judgments which they may entail are a matter for the decision maker”.

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