The alarming case of two Afghan judges, refused entry into the UK after the Taliban took over Afghanistan, is instructive. The two face the very real possibility that they will be found and executed by the Taliban, and yet the UK government has flatly refused to allow them in. Among other things, this illustrates how vulnerable judges, as a group, sometimes are, persecuted precisely for the work that they do as judges. When they seek asylum, it is difficult to say that they are simply ‘making things up’, an accusation often levelled at other would-be refugees. At the same time, however, the case shows how incredibly difficult it must be for ordinary people to gain legal entry into a country as asylum-seekers, if even judges, clearly committed to promoting the rule of law, are turned down.
Two Afghan judges, both in hiding and known only as ‘S’ and ‘AZ’, have successfully asked the high court to reconsider a UK government decision refusing to allow them to relocate to the UK.
In a lengthy decision that closely examines UK policy and practice on which members of Afghan society would be given the right to enter the UK, the high court has agreed to review the decision. The result is that the decisions made to refuse them access under the Leave Outside the Rules (LOTR) system have been quashed and the Secretary of State for the Home Department must now determine the claims of the two judges in the light of the court’s decision.
The court’s introductory paragraph gives a stark sense of what was at stake in this case: ‘The claimants, who were judges in Afghanistan prior to the defeat of the Afghanistan government by the Taliban in August 2021, seek judicial review of the [UK government’s] decisions refusing their application for leave to enter the UK. It is not in dispute that the claimants are at risk of serious harm or death at the hands of the Taliban.’
This is a theme that recurs in the decision, for example, in this paragraph: ‘In their work as judges, hearing counter-terrorism and national security cases, [the two claimant judges] contributed to the UK government’s objectives in Afghanistan to promote the rule of law, and to combat terrorism …. In doing so, they placed themselves and their families at considerable personal risk. That risk has heightened since the Taliban seized power. They and their families are in hiding, but realistically they will be found by the Taliban at some point. There is verified evidence that other judges have been summarily executed by the Taliban.’
Effectively, the two judges and their families are asylum-seekers, wanting to be allowed into the UK for their own safety. There is no doubt about the serious situation they face, with Judge Beverley Lang, who heard the review application, acknowledging the very real risks they face of death at the hands of the Taliban if and when they are caught.
The court quoted a number of sources on the peril faced by judges left behind when the Taliban took over control of the country. This included the office of the United Nations High Commissioner for Refugees, which identified the problem for judges including women judges in its paper, ‘Position on Return to Afghanistan’, the UK’s Home Office, the International Association of Judges and the International Association of Women Judges.
Who were the judges, ‘S’ and ‘AZ’?
Judge Lang notes that AZ was born in 1979, is married and has six children aged between six and 17. In addition, his elderly mother lives with the family. He has a law degree and qualified as a judge in 2008. He has attended a lengthy judicial training course in Kabul, organised by the country’s Supreme Court. He also attended a number of training courses organised by bodies such as the US Agency for International Development, the Max Planck Institute and the Norwegian Refugee Council.
At one stage he was warned by the Supreme Court in Kabul that he was on a Taliban list of planned killings and was given a gun and armed bodyguards. AZ himself believes the reason his life is in danger is because of decisions he has made as a judge during his professional life.
‘He has made over 40 decisions in counter-terrorist cases, mostly against Taliban and ISK members. He has passed lengthy prison sentences for terrorist offences on members of the Taliban who have now been released from prison and hold positions of power and influence.
'Since the Taliban gained power, he has received direct threats to his safety and he is now in hiding and no longer able to work. He has no future in Afghanistan.
He applied for leave to enter the UK with his dependents two months after the takeover of Afghanistan in August 2021 but received a reply from the UK’s Government Legal Department, saying that he was not eligible. This was because he did not provide evidence of involvement ‘in cases of special UK interest’.
The other judge, ‘S’, is 57, married and with two teenage children. She is a member of the International Association of Women Judges and its affiliate, the Afghan Women Judges Association. She served as a judge in the juvenile court of Kabul and her work involved investigating criminal and national security cases including cases involving the Taliban.
‘Her family have been the target of Taliban violence as a result of her judicial work. In 2004, her husband was abducted, beaten and interrogated about S’s whereabouts, when she was investigating a case against the Taliban.’
After the Taliban takeover in Kabul, her neighbours told her that the Taliban had come to her neighbourhood looking for a female judge. She and her family have gone into hiding and have changed location more than once. She fears for her life and the lives of her family.
She too requested leave to enter the UK but was turned down. Among the reasons given for rejection was that she gave no evidence that her judicial ‘activism’ was conducted ‘working with or alongside the UK’.
In court argument, the UK government said the decision to refuse the two judges was lawful. While the government acknowledged that the two were at risk of harm from the Taliban because of their judicial roles, this alone did not create an entitlement to enter the UK.
Commenting on this argument, Judge Lang said that while Kabul was the centre of the UK’s counter-terrorism mission in Afghanistan, the evidence showed that British engagement with the justice system and anti-terrorist measures, were not limited to Kabul.
‘In my view, decision-makers should not assume that Afghan judges deciding anti-terrorist, anti-narcotics and security cases were not contributing to the UK mission merely because they were working in the provinces, rather than Kabul.’
The judge also commented that the ‘comparator judges’ – Afghan judges who were allowed into the UK by the government – were selected for entry for the sole reason that ‘they had contacts in the UK who were able to lobby … on their behalf.’
If S and AZ had been put forward, both could have been eligible under Pitting LOTR criteria, said Judge Lang.
She said she could not make an order for judicial review in relation to the first issue raised by S and AZ. ‘The reason is that, because the Secretary of State for the Home Department (SSHD) unlawfully refused to consider the claimants’ applications for LOTR, there were no substantive decisions on LOTR which were capable of being quashed.’ However, on the second issue raised, namely the claims for judicial review of the SSHD’s refusal to consider their applications under LOTR, those decisions made under LOTR were ‘to be quashed’.
‘It will now be for the SSHD to determine how the claimants’ applications for LOTR should be dealt with, both procedurally and substantively, in the light of this judgment,’ Judge Lang concluded.