Afghan women’s rights activist loses resettlement scheme legal challenge

The prosecutor and women’s rights activist argued she was ‘wholly excluded’ from the Afghan Citizens Resettlement Scheme.

The Afghan woman’s legal challenge was heard at the High Court in London (Nick Ansell/PA) (PA Archive)

A female Afghan lawyer who says her life is at risk from the Taliban has lost a High Court challenge over the operation of a UK Government resettlement scheme.

The prosecutor and women’s rights activist argued she was “wholly excluded” from the Afghan Citizens Resettlement Scheme (ACRS), claiming its narrow implementation was unlawful.

Lawyers for the woman, who specialised in prosecuting cases involving violence against women, forced marriage and honour crimes, alleged that at-risk people who had a “legitimate expectation” of being considered under the scheme were excluded instead.

The court was told that the “exceptionally vulnerable” campaigner, who cannot be named, had openly criticised the Taliban, repeatedly received “direct threats” over her work for several years and has been in hiding since August 2021.

Vulnerable people who ‘stood up for values such as democracy, women’s rights and freedom of speech or rule of law’ and currently remain in hiding and at risk in Afghanistan, and who are entitled to prioritisation, are currently excluded from accessing ACRS

Irena Sabic

But the UK Government denied the implementation of the ACRS was unlawful, and in a ruling on Wednesday her case was dismissed by a High Court judge.

Mr Justice Bourne ruled that the woman had failed to establish she had a legitimate expectation of consideration under the scheme and that the policy did not exclude her from any category.

The court was told at a hearing last month that the ACRS was split into three pathways by which people would be considered eligible for resettlement, with the first two routes covering those notified by the Government who are in the UK or were unable to board initial evacuation flights or people referred by the UN Refugee Agency.

In the first phase of the scheme, the third pathway offers places to three specific groups: those who worked with the British Council, security company GardaWorld and Chevening alumni.

Irena Sabic, for the woman, told the hearing in London that the Government previously identified other priority groups – including those at risk who supported the UK and international community effort in Afghanistan – as well as those who are particularly vulnerable, such as women and girls at risk.

Ms Sabic said in written submissions: “Despite these clear and unambiguous statements, vulnerable people who ‘stood up for values such as democracy, women’s rights and freedom of speech or rule of law’ and currently remain in hiding and at risk in Afghanistan, and who are entitled to prioritisation, are currently excluded from accessing ACRS.”

The barrister later said the woman does not have an expectation she should be granted resettlement, but that she should be able to access and be considered for eligibility under the scheme.

The claimant does not fit that description so closely that she could expect, with confidence rather than just hope, to benefit from the scheme ... That does not mean that she is not in great danger

Mr Justice Bourne

Edward Brown KC, for the Home Office, Foreign Office and Ministry of Defence, told the court: “There is an active consideration to expanding pathway three, the issue is whether there is a legal obligation to do what the Government is doing by considering it.”

The barrister added that the woman has “no legitimate expectation” that she would be eligible under ACRS and the High Court was not considering the strength of her case for entering the UK.

The court was told that after the first year of the third pathway, the Government “will work with international partners and NGOs to welcome wider groups of Afghans at risk”.

In his ruling Mr Justice Bourne said the implementation of ACRS was “not unlawful”.

The judge said it had been “repeatedly stated that there would be a focus on those who had directly assisted the UK or its international partners in Afghanistan”.

“The claimant does not fit that description so closely that she could expect, with confidence rather than just hope, to benefit from the scheme,” the judge added.

“That does not mean that she is not in great danger. Nor am I questioning her contribution to the democratic values which the UK and its partners sought to uphold in Afghanistan.

“However, while her contribution identifies her as one of those who ‘may’ be included in the pathway 3 cohort, the policy documents simply did not state that she, or others like her, would definitely be included or included from the start.”

Mr Justice Bourne said the policy may have “life-and-death consequences for individuals” and involved “the making of choices of a painfully invidious nature”.

He said the Government’s objectives justified the choice of the three groups in pathway 3, which included people “at very serious risk”.

The judge added that Government guidance said there were only 1,500 places in the first year, and “emphasises the need to make restrictive and painful choices which would exclude some deserving individuals”.

He said he did not interpret policy announcements over the intention to help women’s rights activists as a commitment to help “any minimum quantity of individuals who fit any of those descriptions but who were less directly connected with the activities of the UK or its international partners”.

Mr Justice Bourne concluded: “Nothing in this judgment is intended to call into question the extraordinary courage of those who have stood up for democratic values in Afghanistan or the dangers which face them.

“As I have said, decision-makers in this area are faced with profoundly difficult and painful choices.”