Sarah Pinder, Joint-head of the immigration and public law team, instructed by Vinita Templeton and Steffan Rees of Duncan Lewis solicitors, secured interim relief from the Upper Tribunal (IAC) on Friday 9th September 2022 and further directions on 12th September 2022.
Their client ‘A’ is an Afghan citizen residing temporarily in a third country having fled Afghanistan shortly before the fall of Kabul to the Taliban in August 2021. A’s wife was granted Indefinite Leave to Enter (ILE) under the Afghan Citizen Resettlement Scheme (ACRS) in Spring 2022 after her evacuation from Afghanistan in August 2021 as part of Operation Pitting. An entry clearance application for family reunion for A to join his wife in the UK was submitted early summer of this year. A’s precarious circumstances in the third country and the urgencies involved were fully detailed in A’s application, as well as the lack of a formal application route for ACRS dependents. This entry clearance application remained pending for some time until A was notified in mid-August 2022 by the visa centre that a decision had been made in his application and a request was made for him to submit his passport. A was relieved as his visa in this third country was due to expire shortly thereafter. He had also been warned that this temporary visa would not be renewed again.
However, nothing happened and A was left waiting for further news for a period of more than two weeks. After much chasing from A’s solicitors, the Home Office’s family reunion team notified A’s solicitors that a mistake had been made and the letter notifying him that a decision had been made in his entry clearance application had been sent in error. Further, the Home Office did not accept that this application raised urgent considerations and warranted prioritising.
A and his solicitors had no other option but to send a letter before claim requesting that his application be prioritised given his precarious circumstances. He was no longer in possession of his passport, the third country authorities confirmed that they would not renew his visa any further and they warned him that he would be returned to Afghanistan if he did not leave prior to the expiry of his visa, despite him being at risk from the Taliban. No response was received from the Home Office’s Judicial Review Unit.
On 8th September 2022, a judicial review claim was lodged invoking the urgent application procedure and applying for interim relief. The latter was granted and an order was made in the following terms:
In compliance with the Order, the Respondent Home Office issued a decision in A’s application on 9th September 2022. This decision refused our client’s family reunion application (on the basis that the client’s wife was not a refugee having ILE granted to her under the ACRS instead) and granting our client a right of appeal. At the end of this decision, the Respondent stated as follows:
“In your application you have stated you are making an application under this route in the absence of a formal process for reunification under the Afghan Citizens Resettlement Scheme. We have been clear in our guidance on the Afghan Citizens Resettlement Scheme that ‘spouses, partners and dependent children of eligible individuals will be eligible for the scheme’. Details of the process for applying for a visa as the spouse of an eligible individual are to be made available, but due to the exceptional circumstances you currently find yourself in, we will shortly issue you with an ACRS dependent visa.“
Our client had referred in his application and Judicial Review claim to the fact that no route for ACRS dependents has to date been implemented. This is despite the Scheme being announced in August 2021 and formally opened in January 2022. One of the reliefs sought in A’s Judicial Review claim includes a Declaration that this delay more generally is unlawful.
As a result of the above being contained in a refusal decision and there being no clear timescales stipulated for the issuing of the visa, further directions were sought from the Upper Tribunal. Recognising again the extreme circumstances involved in this matter and the risks faced by A, this application was granted on the next working day on 12th September 2022 in the following terms:
The above order has been complied with and A is awaiting the return of his passport. In the meantime, his judicial review claim remains pending on permission and the substantive reliefs sought, primarily in the form of Declarations.
Related barristers: Sarah Pinder
Related practice areas: Immigration and Public Law
