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JZ v Secretary of State for the Home Department & Ors.

22 February 2023
[2023] EWCA Civ 178
Court of Appeal
An Afghan judge sued the UK government for refusing him relocation after the Taliban took over. The government said he didn't work closely enough with them to qualify for help, unlike other judges who worked with them later. The court agreed, saying the government's reasons were fair, and the judge couldn't use new information he got after the decision was made.

Key Facts

  • •JZ, an Afghan judge, applied for relocation under the Afghan Relocations and Assistance Policy (ARAP) and Leave Outside the Rules (LOTR) after the Taliban takeover.
  • •His ARAP application was refused because he lacked a clear and direct link to HMG and its mission in Afghanistan, despite his work in hearing terrorism cases.
  • •JZ challenged the ARAP refusal, arguing irrationality due to inconsistency with the relocation of other judges (comparators).
  • •The key difference highlighted was the timing of JZ's service (2008-2011) compared to the comparators (post-2015) when HMG actively partnered with the Kabul Anti-Terrorism Court.
  • •JZ sought to introduce new evidence (SQ5) post-decision, which the judge refused as it was not before the original decision-makers.
  • •JZ appealed both the rejection of the evidence and the dismissal of his claim.

Legal Principles

Judicial review of government decisions is permissible for irrationality or inconsistency.

Gallaher Group Ltd v Competition and Markets Authority [2019] UKSC 25

In judicial review, the court assesses if the decision was properly made based on available material at the time, not on post-decision evidence.

JZ No. 3 (Hill J's judgment)

Decisions on applications for permission to appeal are not binding authority unless specifically directed.

Arthur J S Hall v Simon [1999] 3 WLR 873

Re-opening a final decision requires exceptional circumstances to avoid real injustice, with no alternative remedy.

CPR rule 52.30

Outcomes

Permission to appeal the dismissal of JZ's claim was refused.

The judge's decision was not irrational; the government reasonably distinguished between JZ's pre-2015 service and the post-2015 partnership with the Kabul Anti-Terrorism Court. The new evidence was inadmissible as it was not before the original decision-makers.

The application to re-open Lewis LJ's refusal of permission to appeal was dismissed.

The new evidence did not alter the interpretation of ARAP or demonstrate any injustice in the original decision. Hill J's decision was unimpeachable.

JZ's application for costs was also refused.

While JZ had success in interim applications, the overall failure stemmed from his late disclosure. The general rule that the unsuccessful party pays costs applied.

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