FCDO faces legal challenges over visa denials to Afghan judges

The United Kingdom’s Foreign, Commonwealth & Development Office is facing new legal woes, as a prominent law firm prepares to bring judicial reviews against the government over its refusal to grant visas to female judges from Afghanistan.

Lawyers at Mishcon de Reya are “on the verge of submitting judicial review applications on behalf of three” former judges, Maria Patsalos, a partner at the firm, told Devex exclusively. She said the firm is helping 28 former Afghan judges, of which seven remain in Afghanistan and are in hiding following the Taliban’s takeover of the country in August.

FCDO narrowly escaped another judicial review last week, after a judge decided against allowing a case brought by the International Planned Parenthood Federation to proceed. The NGO, which specializes in reproduction and sexual health, is now deciding whether to appeal.

“We don’t particularly want to submit 28 judicial review [applications], we hope the Home Office and FCDO and everyone will make the right decision quickly before … quite frankly, we no longer have any clients,” said Patsalos.

She added that the lives of judges who remained in Afghanistan were “absolutely” at risk and they were “very distressed.” The women are living between safe houses, relying on friends and family for help, and that their bank accounts had been frozen, according to Patsalos.

“They are desperate for help, they are pinning all their hopes on the U.K. making the right decision and granting them their visas,” said Patsalos. “We’re not going to give up any time soon, we’re going to see this through all the way through to judicial review and beyond.” Mischon de Reya, which two months ago had expected a “quick win” on the visas, is now working with other law firms that are helping other Afghan judges — Patsalos declined to name the firms — and the groups are engaging in weekly strategy meetings.

“We’re doing it because it’s the right thing to do and these are our fellow legal colleagues, and if anything like this happened to us, we hope that someone would come and help us,” said Patsalos.

An external expert commissioned by the lawyers has found the judges were contributing to the U.K.’s effort in Afghanistan and also to British national security, as they sentenced captured fighters from the Taliban and ISIS, another extremist group, Patsalos told Devex.

The situation for Afghans who worked on U.K.-backed development projects has been highly fraught ever since the capital, Kabul, fell to extremist Taliban militants earlier this year. Despite the risk former aid workers are under due to fear of Taliban reprisals over their old jobs, supporters — including current and former U.K. officials — say many have effectively been abandoned.

But the U.K. government insisted they undertook the country’s “biggest and fastest emergency evacuation in recent history, helping over 15,000 people to safety from Afghanistan who we are continuing to support,” according to a spokesperson.

The Afghan Relocations and Assistance Policy has been subject to rule changes, and despite having previously accepted some Afghan judges, has not granted visas to the judges still being helped by Patsalos.

According to a U.K. government letter to the lawyers, extracts of which were seen by Devex, category four of ARAP allowed for the “consideration of individuals who worked in a role that made a material contribution to HMG’s mission in Afghanistan, without whose work the UK’s operations would have been adversely affected, and who are now at risk because of that work” but the same message denied the ARAP application. “How they could not be materially contributing is beyond us,” said Patsalos. Other Afghan workers have also been rejected visas under the ARAP scheme.

The government’s evacuation scheme, the Afghan citizens resettlement scheme, is still not open and fears remain that it might not accommodate former development workers and judges. “There is no way of knowing what the requirements are in an official context,” said Patsalos. The government’s letter to the lawyers said “the working-out of the detail of the ACRS scheme is a complex process and there is nothing unlawful about the fact that it is not yet in operation.”

A Government spokesperson described the scheme as “one of the most generous schemes in our country’s history and will give up to 20,000 further people at risk a new life in the UK.” The official added that the government will continue to work “at pace to open the scheme amid a complex and changing picture, working across government and with partners such as UNHCR to design the scheme.”

 Patsalos said the legal team will be applying for the judges to be granted visas on the basis of a third category, called “Leave Outside the Rules,” as they believe “it is made for this type of scenario. It is a visa for those who have compassionate and compelling reasons to come” to the U.K. A judge has already been allowed into the U.K. through this category — as were an Afghan women’s youth soccer team who arrived in the U.K. last week on a plane chartered by Kim Kardashian West.

Update, Nov. 23, 2021: This piece has been updated to reflect the U.K. government’s response.