R (On the Application Of QA) v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 3064 (Admin): Case Analysis
17 Dec 2024
Summary:
This is an analysis of the case R (on the Application of QA) v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 3064 (Admin) by Francesca Dickens, pupil barrister at One Pump Court. She will be accepting instructions in Immigration and Family law from April 2025.
In this case, Johnson J found that it was possible that a fair-minded observer would conclude that the Defendant’s decision may have been predetermined and, together with other features in the decision-making process, was therefore unfair.
Background
QA, an Afghan citizen, worked with the Ministry of Defence (“MOD”) and the Foreign, Commonwealth and Development Office (“FCDO”) in Afghanistan. This role placed him and his immediate family in danger, and, in 2015, they were resettled in the UK under the Afghanistan Locally Employed Staff Ex-Gratia Scheme (“Ex Gratia Scheme”). 15 members of QA’s extended family (the Interested Parties or “IPs”), which include QA’s siblings and their partners and children, remained in Afghanistan.
In August 2021, UK personnel left Afghanistan completely and the Taliban regained control of the country. In the aftermath, QA’s family faced heightened risks to their own safety which QA says arise from his previous role as an employee of the UK Government. Since August 2021, one IP has been detained by the Taliban, a second questioned and a third disappeared and presumably detained.
In April 2021, the UK initiated the Afghan Relocations and Assistance Policy (“ARAP”). This policy allows for the resettlement of extended family members where there are ‘compelling circumstances’ to warrant their admission either because: 1) they are at an ‘elevated risk’ of harm as a result of their family member’s work for a UK Government department; or 2) because they have specific vulnerabilities which lead to their exceptional dependence on their family member.
On 24 November 2021, QA applied for the IPs to be settled in the UK through the ARAP scheme.
What followed were five refusal decisions by the Secretary of State for the Foreign, Commonwealth and Development Affairs (“FCDA”) and extensive court proceedings as QA sought to (successfully) challenge each decision. The judgment by Johnson J quashes the fifth refusal decision due to the possibility of unfair predetermination, and orders that a sixth decision be taken with respect to the IPs application for resettlement in the UK.
Procedural History
The procedural history is highly relevant in this case and worth setting out in full:
· 24 November 2021: QA applies for the IPs to be resettled. He provides ‘extensive evidence’ of the ‘high and immediate’ risk facing them (§5).
· 24 December 2021: The FCDA Panel refuse his application, without oversight of all the evidence (“the first decision”). It is later revealed that an official unnamed in the judgment (“Official X”) and a second unnamed official (“Official Y”) sit on the Panel.
· 10 January 2022: The same Panel (including Officials X and Y) reconvene to make a further refusal decision, this time with all the evidence before them (“the second decision”). QA is not informed that a second decision has been made, nor that the first decision had been made without consideration of all the evidence.
· QA then initiates judicial review (‘JR’) proceedings in respect of the first decision. The FCDA omit to mention that the second decision had been made. In their defence, the FCDA give the impression that a further application would be ‘considered afresh by a new panel’. The JR claim is withdrawn and the FCDA agree to review their decision and QA’s further evidence.
· 8 June 2022: A third refusal decision is made (“the third decision”).
· 9 September 2022: QA initiates JR proceedings in respect of the third decision.
· 3 November 2023: The FCDA file a witness statement by Ms Christine Ferguson, which gave a ‘strong impression’ that she ‘was not part of the Panel that made the [third] decision’ (§10, 11). The purpose of the statement was to set out a chronology, however she ‘took it upon herself’ to set out her strong personal views in support of the refusal decision (§39 (10).
· 2 February 2024: the Court of Appeal finds, in R (IAB) v Secretary of State for the Home Department [2024] EWCA Civ 66 [2024] 1 WLR 1916, that the continued redaction of panel members’ names is ‘inimical to open government’ and must cease. As a result of this case, the FCDA reveals the names of the Panel members involved in deciding QA’s matter. In particular, it is revealed that Ms Ferguson was a member of the Panel making the third decision, despite her witness statement indicating the contrary.
· 4 March 2024: JR proceedings relating to the third decision are vacated and the FCDA agree to undertake a further review.
· 11 March 2024: A fourth refusal decision is made (“the fourth decision”). Official Y chairs the Panel, despite his previous involvement in the first and second decisions. An unnamed Official (“Official Z”) also sits on the Panel.
· 28 March 2024: QA serves an amended statement of facts and grounds challenging the fourth decision.
· 22 April 2024: A fifth refusal decision is made (“the fifth decision”). Official Y chairs the Panel for a second time, and Ms Ferguson and Official Z both sit as Panel members.
· 20 May 2024: Ms Ferguson makes a further witness statement omitting acknowledgment of her previous involvement in the case as a decision-maker and without explanation as to why her previous statement had been misleading.
Grounds of challenge:
QA challenged the fifth decision on two grounds. Firstly, irrationality; and secondly, that the decision was unfair on the grounds of apparent bias and/or predetermination.
Johnson J ruled in favour of QA on the second issue and ordered that the Defendant remake the decision (for the sixth time). This eradicated the need for judgment on the first ground.
Predetermination: The Law
A decision is flawed and may be set aside if it is predetermined, or if there is an appearance of predetermination: (R (T) v West Berkshire Council [2016] EWHC 1876 (Admin), §49. Predetermination occurs when a decision-maker closes their mind to the merits of the issue that is to be decided. The test as to whether or not a decision-maker is predetermined comes from Miller v Health Service Commission for England [2018] EWCA Civ 144 [2018] PTSR 801, §62: whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker had predetermined the issue.
Predetermination: Each Parties’ Position
QA argued that the circumstances of the case and in particular the involvement of Ms Ferguson as both a witness expressing a firm view on the application and a member of the Panel making the third and fifth decision meant that a fair-minded observer would conclude that the decision would (at least) appear to be predetermined.
The Secretary of State argued that the allegation of predetermination was ‘unfounded and inapt’. There were only a finite number of Panel members and no requirement in law that a different Panel be constituted for each review. Furthermore, the Panel consisted of several other Panel members who had cumulatively reached a unanimous decision.
Predetermination: Judicial Findings
Johnson J finds that ‘the constellation of features [identified] demonstrates unfairness in the decision-making’ (§43). In particular, Ms Ferguson’s unscripted and ‘unnecessary’ expression that QA’s application had rightfully been rejected, her failure to identify herself as a decision-maker, and her subsequent role in refusing QA’s application on the fifth decision would lead a fair-minded observer to conclude that she may have predetermined the outcome.
Analysis:
Since August 2021, QA’s extended family have lived in precarious circumstances in Afghanistan. At least three members of the family have come to the adverse attention of the Taliban, with two members presumed detained, perhaps even tortured and killed. QA’s view is that the atrocities happening to his family arise because he worked for the British government.
In deciding his application, the Panel members are tasked with making a decision that could lead to very serious consequences for the IPs. The judgment in QA recentres the importance of integrity and procedural fairness. Three points are relevant.
Firstly, the repeating identities of Panel members across all five of the decisions would have never come to light had it not been for the Court of Appeal decision in IAB (§41) and the persistent disclosure requests submitted by QA’s legal team (set out in §17). Without this disclosure, QA would have remained oblivious to the fact that the same people were routinely called upon to determine his family’s fate. It goes without saying that forming a new opinion is far easier than revisiting an old opinion and changing one’s mind; unbeknown to him (and contrary to the assurances of the Secretary of State), QA faced an uphill battle from the start.
Secondly, Johnson J’s decision reflects the enormous power that the decision-maker wields in these cases – and the inherent responsibilities that must accompany that power. Integrity and candour (though not mentioned explicitly) are at the heart of what is expected from persons tasked with making such overwhelmingly important decisions. That is why Johnson J’s criticism of Ms Ferguson’s assertions (§§42 and 43) are so relevant; in the context of such serious consequences, it simply cannot be permissible for a decision-maker to cover up their personal involvement and give misleading impressions in the hope that they will not be discovered.
The third salient point arising from Johnson J’s judgment is at §44. In this paragraph, Johnson J finds that the fact that one member’s decision is tainted by bias is sufficient to vitiate the entire Panel’s decision. This is important; it means that the FCDA cannot hide behind their submission that putting additional members on the Panel obliviates the requirement to constitute a fair, unbiased Panel to begin with. The importance of the individual is reconstituted and the power of a (potentially) predetermined mind in influencing the opinions of other members takes centre stage.
Conclusion
QA’s dogged attempts to have his family resettled in the UK because of the risk faced to them by virtue of his employment for the British government is commendable, particularly in light of Johnson J’s finding that unfairness and bias may have marred the government’s decision-making in his case.
The fate of his extended family members goes back to the FCDA for the sixth occasion. One hopes, this time, that his application is granted the justice it deserves.
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