News

Duncan Lewis Solicitors' public law team has achieved a significant victory for a client in a case that highlights the systemic delays and challenges facing Afghan nationals under the Afghan Relocations and Assistance Policy (ARAP).

The case of YY v Ministry of Defence demonstrates the failures of the ARAP to promptly and fairly process applications of Afghan individuals who supported the UK in Afghanistan.

The diligent work of our expert legal team has shown the importance of timely justice and the need for more efficient governmental response in life-threatening situations.

The Afghan Relocations and Assistance Policy (ARAP) facilitates the resettlement of Afghan individuals who worked with the UK government or armed forces in Afghanistan and are now in danger. An unsuccessful applicant can seek an internal review of the decision.

However, there are concerns about the policy's failure to support Afghan nationals who aided the UK Government, as application resolution is taking years.

Many applicants remain in hiding in Afghanistan or displaced in third countries while waiting for their applications to be processed. The Ministry of Defence (MoD) has been criticised for delays in processing these applications. YY v Ministry of Defence highlights the need for clear guidance on the legal status of the review process.

YY v Ministry of Defence: the background

YY held a senior position within the Afghan National Directorate of Security and later attended an Intelligence Directors’ course at RAF Chicksands. He fled abroad during the Taliban takeover. His ARAP application under pathway 4 cited his work alongside UK departments, contribution to national security objectives, and increased risk exposure.

13 months later, the ARAP team issued a negative decision on YY's initial Refusal and Review application made in October 2022. An internal review was sought, relying on the same facts and evidence previously presented to the MoD.

The Judicial Review Claim

YY filed for judicial review just before the three-month deadline, challenging both the eligibility decision and the MoD's ongoing delay in resolving his application. The ARAP scheme and its review process being non-statutory, YY argued against the presumption against judicial review where an alternative statutory remedy exists.

Permission on the Papers and the Review Decision

In April 2023, permission to challenge the substantive decision was refused on grounds that it was premature in light of the pending review decision; and although the review had been pending for six months this was said to not yet be unreasonable, the Court considering the lengthy delay before reaching the initial eligibility decision irrelevant to that question.

YY renewed his application, emphasising the relevance of the entire delay period. The defendant eventually made a review decision, again rejecting YY's application without basis.

YY applied to amend his grounds to include a challenge to the review decision. The defendant’s stated case was that YY should commence a new claim against the review decision, and that the original challenge was now “academic”.

At an oral permission hearing in September 2023, YY was granted permission to amend his grounds and proceed to judicial review.. The MoD then conceded YY's ARAP eligibility, leading to the claim's settlement. YY received entry clearance and arrived in the UK in November 2023, over two years after applying for relocation.

Comment

The case raises questions about the efficiency of ARAP as a "safe and legal route" for those needing rapid safety, particularly given the court's preliminary view on the relevance of delay.

Representatives

Director James Packer and Trainee Solicitor Giorgio Strumia of the Public Law Department represented YY. Catherine Meredith, of Doughty Street Chambers, and Tim Buley KC, of Landmark Chambers, also represented him.

Duncan Lewis Solicitors

Duncan Lewis’ award-winning public law team holds top tier rankings in the Legal 500 and Chambers directories and has been involved in high-profile cases such as the Rwanda challenge, Manston House, and the Brook House detention centre inquiry.

About the Author

James Packer is a Director of public law department at Duncan Lewis Solicitors. He supervises a team dedicated to representing vulnerable individuals in various areas, including unlawful detention and enforced removals. Recognised as a Next Generation Partner and Recommended Lawyer in the Legal 500, he is known for his exceptional legal skills.

For assistance on public law matters, contact James at JamesP@duncanlewis.com or call 020 7275 2772.