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Advocate was initially approached by DLA Piper to help find barristers who were specialists in immigration to assist with exploring ways to help people trapped in Afghanistan find routes into the UK.
As the project expanded, more firms came on board, and there are currently nearly 100 barristers registered on it. Advocate has in excess of 75 clients and has been able to provide assistance for around 25 of them so far. It is also helping solicitors’ firms to find counsel for Afghan judges (see below).
All of its clients are in desperate need of help, particularly since ACRS (see below) opened on 6 January 2022. It is providing ongoing support to a team of ex-BBC journalists and has received applications from British citizens still trapped in Afghanistan. There are also many individuals who were employed by UK special forces or International Media Support as translators who have had ARAP applications denied.
Many of their clients have already been targeted directly by members of the Taliban.
The two main schemes addressing exit for Afghans are the Afghan Citizens Resettlement Scheme (ACRS) and the Afghan Relocations and Assistance Policy (ARAP).
ACRS opened on 6 January 2022 and aims to resettle up to 20,000 people in the UK through three different pathways:
ARAP launched in April 2021 and aims to relocate or assist current and former locally UK government-employed staff in Afghanistan who may now be in danger from the Taliban due to their work. Applications are made through an online form from any country and there are four categories under which a claim can be made. People can bring family members if they qualify under the UK Immigration Rules. An application for entry clearance can also be made under the relevant Afghan citizen Immigration Rule with an underlying human rights claim.
If it is possible to bring a claim under the Immigration Rules, it is worth trying to do that under ARAP as well as under Immigration Rule 276BB1 attached to it. A fee waiver application under the Immigration Rule ought to be made at the same time. If this application also contains an underlying human rights claim, then a refusal will attract a right of appeal.
Applications must stress, where relevant, the best interests of the children. Entry clearance officers (ECOs) are expected to apply the best interest principle to the children included in the application under ARAP or under the Immigration Rules.
In claims under ARAP, it is important to include that the applicant is being threatened by the Taliban if applicable and relevant information, for example, that their neighbours know they worked as interpreter, they are a journalist and their picture appears in newspapers or the internet.
If an applicant has a family member in the UK who can sponsor them as a dependent adult relative under the Immigration Rules, consideration should be given to applying under the concessionary schemes as well as under para 317 of the Immigration Rules. Again, this application should expressly state why, if applicable, their lives are in danger in Afghanistan or in the neighbouring country. If the applicant does not establish that they fall within one of the rules of para 317 HC 395, they may still succeed with a human rights claim.
This route may also cover someone who has a family member in the UK, so list them on the application for entry clearance, even if it’s a distant relative. Always include information on threats and breaches of human rights. Try to include bringing in dependants; it is more likely to trigger a human rights claim.
Where an interpreter was dismissed without good reason some time ago but is now in imminent danger, they too can apply under ARAP or under the Immigration Rule. The decision-maker will have to consider whether the dismissal justifies exclusion of the entire family. Special classified documents should have recordings of dismissals, so knowing about those is crucial to gathering evidence.
From a practical perspective, there is no UNHCR station in Pakistan, which is a requirement for routes 2 and 3 under ACRS. It is worth trying to get non-governmental organisations (NGOs) situated in Pakistan or in neighbouring countries to undertake an assessment of the applicant’s situation and submit a referral through the legal representatives as to why they should be considered under the ACRS. This will put pressure on the UK government to address their plight or get them to request the UNHCR to adopt the referral made by the NGO.
I have known scenarios where UNHCR staff have discriminated against applicants on the basis of their religion, so be aware that this can happen. In this situation, a judicial review may be necessary, but the UNHCR will assert immunity and not take part in the proceedings.
In a situation where the UNHCR supports an application, but the Secretary of State refuses it, it may be necessary to go for judicial review, so disclosure (a transcript of interviews and forms from the UNHCR) can be obtained from the interview with the UNHCR. You will not get this evidence unless a judicial review is started. And always claim a fee waiver.
There are two main routes to challenging decisions: judicial review (which will likely be the main route to challenging claims based on references from the UNHCR or other NGOs) and human rights appeals to the Immigration Tribunal or under the Human Rights Act. The best example of a human rights claim is if the applicant is threatened with their life and wishes to join a family member who can act as a sponsor. Asylum applications cannot be made from abroad and so there will be no right of appeal on asylum grounds.
Appeals into the UK justice system are preferable because it creates the chance of finding solicitors with legal aid contracts (or those licensed to represent immigration and asylum clients) who will be willing to take on this kind of work and judges are likely to be hugely sympathetic. Judicial reviews are less likely to result in success for the applicant.
Advocate is looking for barristers who are specialists in immigration law and who have contacts with firms of solicitors with legal aid contracts or licensed practitioners. They recognise that it is not possible to do every case pro bono, but hope that by tapping into existing networks they can expand the knowledge base and provide real support to some people in desperate need.
Ramby has offered his time to speak to barristers who wish to explore the possibilities of assisting Afghan applicants seek relocation to the UK.
First person: Sophie Broke, caseworker in charge of Advocate’s Afghan Project, outlines how it started, what we’re doing and why we urgently need more help:
In October 2021, Advocate was approached by DLA Piper, Gráinne Mellon from Garden Court and Allan Briddock of One Pump Court to assist with Project Afghanistan.
Since then, we have worked closely with other charities and organisations – such as the Bar Human Rights Committee, Immigration Law Practitioners Association, the International Bar Association's Human Rights Institute and Solidarity with Refugees – to provide legal advice to people in Afghanistan on their immigration routes into the UK.
The majority of our cases involve Afghan citizens who need help under the recently launched Afghan Citizen Resettlement Scheme (ACRS). As this scheme does not have a formal application process, efforts from counsel to provide either advice as to the merits, or submissions, can make a dramatic difference to the success of our clients’ cases.
While most of our clients need assistance under the ACRS route, others are British citizens still in Afghanistan or are British citizens or residents seeking assistance with family reunification for family members in Afghanistan.
Many of our clients are at risk from the Taliban due to their work with British government, international NGOs, the Afghan Government or media organisations. A significant number are also at further risk due to their sexuality, religion or race.
We are also working with Eversheds who are coordinating a project to help Afghan judges come to the UK. They have successfully rallied a number of law firms (including Herbert Smith Freehills, Orrick, Bryan Cave Leighton Paisner, Cooley and Covington & Burling) to work hand-in-hand with counsel on individual judges’ cases. We need experienced immigration counsel to assist with this project.
We fully understand that this is a very busy time for the Bar, and for immigration practitioners in particular, so we are not asking for barristers to commit more time than they can. The assistance currently being provided varies from one off advice on merits and explaining next steps, through to more holistic advocacy, advice and submissions – leading towards representations if that proves necessary.
We greatly appreciate that this is a constantly developing area of law and with no formal application process for ACRS, it can be daunting to provide assistance. However, there are a number of experienced immigration practitioners available to provide mentoring support and we can provide up-to-date training materials. I am also on hand to provide casework support and we may be able to obtain support from solicitors’ firms where that would be beneficial.
If you are a barrister, email us at: immigration@weareadvocate.org.uk
Ramby De Mello is a barrister at No 5 Chambers, called in 1983. He has done a lot of pro bono during a distinguished career and has now picked up several cases for Advocate's Afghan Project. He started life working for the Birmingham Citizen’s Advice Bureau as a volunteer and then worked in their legal department for some years and has volunteered at many Law Centres in the West Midlands and elsewhere.
Advocate was initially approached by DLA Piper to help find barristers who were specialists in immigration to assist with exploring ways to help people trapped in Afghanistan find routes into the UK.
As the project expanded, more firms came on board, and there are currently nearly 100 barristers registered on it. Advocate has in excess of 75 clients and has been able to provide assistance for around 25 of them so far. It is also helping solicitors’ firms to find counsel for Afghan judges (see below).
All of its clients are in desperate need of help, particularly since ACRS (see below) opened on 6 January 2022. It is providing ongoing support to a team of ex-BBC journalists and has received applications from British citizens still trapped in Afghanistan. There are also many individuals who were employed by UK special forces or International Media Support as translators who have had ARAP applications denied.
Many of their clients have already been targeted directly by members of the Taliban.
The two main schemes addressing exit for Afghans are the Afghan Citizens Resettlement Scheme (ACRS) and the Afghan Relocations and Assistance Policy (ARAP).
ACRS opened on 6 January 2022 and aims to resettle up to 20,000 people in the UK through three different pathways:
ARAP launched in April 2021 and aims to relocate or assist current and former locally UK government-employed staff in Afghanistan who may now be in danger from the Taliban due to their work. Applications are made through an online form from any country and there are four categories under which a claim can be made. People can bring family members if they qualify under the UK Immigration Rules. An application for entry clearance can also be made under the relevant Afghan citizen Immigration Rule with an underlying human rights claim.
If it is possible to bring a claim under the Immigration Rules, it is worth trying to do that under ARAP as well as under Immigration Rule 276BB1 attached to it. A fee waiver application under the Immigration Rule ought to be made at the same time. If this application also contains an underlying human rights claim, then a refusal will attract a right of appeal.
Applications must stress, where relevant, the best interests of the children. Entry clearance officers (ECOs) are expected to apply the best interest principle to the children included in the application under ARAP or under the Immigration Rules.
In claims under ARAP, it is important to include that the applicant is being threatened by the Taliban if applicable and relevant information, for example, that their neighbours know they worked as interpreter, they are a journalist and their picture appears in newspapers or the internet.
If an applicant has a family member in the UK who can sponsor them as a dependent adult relative under the Immigration Rules, consideration should be given to applying under the concessionary schemes as well as under para 317 of the Immigration Rules. Again, this application should expressly state why, if applicable, their lives are in danger in Afghanistan or in the neighbouring country. If the applicant does not establish that they fall within one of the rules of para 317 HC 395, they may still succeed with a human rights claim.
This route may also cover someone who has a family member in the UK, so list them on the application for entry clearance, even if it’s a distant relative. Always include information on threats and breaches of human rights. Try to include bringing in dependants; it is more likely to trigger a human rights claim.
Where an interpreter was dismissed without good reason some time ago but is now in imminent danger, they too can apply under ARAP or under the Immigration Rule. The decision-maker will have to consider whether the dismissal justifies exclusion of the entire family. Special classified documents should have recordings of dismissals, so knowing about those is crucial to gathering evidence.
From a practical perspective, there is no UNHCR station in Pakistan, which is a requirement for routes 2 and 3 under ACRS. It is worth trying to get non-governmental organisations (NGOs) situated in Pakistan or in neighbouring countries to undertake an assessment of the applicant’s situation and submit a referral through the legal representatives as to why they should be considered under the ACRS. This will put pressure on the UK government to address their plight or get them to request the UNHCR to adopt the referral made by the NGO.
I have known scenarios where UNHCR staff have discriminated against applicants on the basis of their religion, so be aware that this can happen. In this situation, a judicial review may be necessary, but the UNHCR will assert immunity and not take part in the proceedings.
In a situation where the UNHCR supports an application, but the Secretary of State refuses it, it may be necessary to go for judicial review, so disclosure (a transcript of interviews and forms from the UNHCR) can be obtained from the interview with the UNHCR. You will not get this evidence unless a judicial review is started. And always claim a fee waiver.
There are two main routes to challenging decisions: judicial review (which will likely be the main route to challenging claims based on references from the UNHCR or other NGOs) and human rights appeals to the Immigration Tribunal or under the Human Rights Act. The best example of a human rights claim is if the applicant is threatened with their life and wishes to join a family member who can act as a sponsor. Asylum applications cannot be made from abroad and so there will be no right of appeal on asylum grounds.
Appeals into the UK justice system are preferable because it creates the chance of finding solicitors with legal aid contracts (or those licensed to represent immigration and asylum clients) who will be willing to take on this kind of work and judges are likely to be hugely sympathetic. Judicial reviews are less likely to result in success for the applicant.
Advocate is looking for barristers who are specialists in immigration law and who have contacts with firms of solicitors with legal aid contracts or licensed practitioners. They recognise that it is not possible to do every case pro bono, but hope that by tapping into existing networks they can expand the knowledge base and provide real support to some people in desperate need.
Ramby has offered his time to speak to barristers who wish to explore the possibilities of assisting Afghan applicants seek relocation to the UK.
First person: Sophie Broke, caseworker in charge of Advocate’s Afghan Project, outlines how it started, what we’re doing and why we urgently need more help:
In October 2021, Advocate was approached by DLA Piper, Gráinne Mellon from Garden Court and Allan Briddock of One Pump Court to assist with Project Afghanistan.
Since then, we have worked closely with other charities and organisations – such as the Bar Human Rights Committee, Immigration Law Practitioners Association, the International Bar Association's Human Rights Institute and Solidarity with Refugees – to provide legal advice to people in Afghanistan on their immigration routes into the UK.
The majority of our cases involve Afghan citizens who need help under the recently launched Afghan Citizen Resettlement Scheme (ACRS). As this scheme does not have a formal application process, efforts from counsel to provide either advice as to the merits, or submissions, can make a dramatic difference to the success of our clients’ cases.
While most of our clients need assistance under the ACRS route, others are British citizens still in Afghanistan or are British citizens or residents seeking assistance with family reunification for family members in Afghanistan.
Many of our clients are at risk from the Taliban due to their work with British government, international NGOs, the Afghan Government or media organisations. A significant number are also at further risk due to their sexuality, religion or race.
We are also working with Eversheds who are coordinating a project to help Afghan judges come to the UK. They have successfully rallied a number of law firms (including Herbert Smith Freehills, Orrick, Bryan Cave Leighton Paisner, Cooley and Covington & Burling) to work hand-in-hand with counsel on individual judges’ cases. We need experienced immigration counsel to assist with this project.
We fully understand that this is a very busy time for the Bar, and for immigration practitioners in particular, so we are not asking for barristers to commit more time than they can. The assistance currently being provided varies from one off advice on merits and explaining next steps, through to more holistic advocacy, advice and submissions – leading towards representations if that proves necessary.
We greatly appreciate that this is a constantly developing area of law and with no formal application process for ACRS, it can be daunting to provide assistance. However, there are a number of experienced immigration practitioners available to provide mentoring support and we can provide up-to-date training materials. I am also on hand to provide casework support and we may be able to obtain support from solicitors’ firms where that would be beneficial.
If you are a barrister, email us at: immigration@weareadvocate.org.uk
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