JZ (R on the application of) v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Inconsistency between public decisions is not a free-standing ground of judicial review. It may amount to irrationality where materially similar cases receive different treatment without a rational explanation. The court must examine the applicable criteria, the evidence before the decision-makers, and any material distinguishing features. Discretionary schemes assessed by separate decision-makers make inconsistency harder to establish because lawful evaluative differences may produce different outcomes. An applicant’s occupation, location, or participation in events connected with government is not independently determinative under an assistance scheme whose criteria require work alongside the government. A later emergency scheme with overlapping criteria may nevertheless serve a different policy purpose and does not become irrational merely because it overlaps with a longer-term scheme.

The claimant, an Afghan judge, sought judicial review of decisions refusing his application under the Afghan Relocations and Assistance Policy (ARAP), maintained on 24 November 2021. He argued that the decisions treated him irrationally differently from Afghan judges relocated under ARAP, and that the interaction between ARAP and emergency leave outside the rules during Operation Pitting was incoherent. He also argued that his proximity to persons called forward for evacuation was relevant to the defendants’ residual discretion.

The court considered the evidence about the claimant’s service in terrorism-related courts, the comparator judges’ later service in courts supported by the UK Government, and the criteria applied under the schemes. The central issue was whether the challenged decisions were irrational because materially similar cases had been treated differently.

1. The claim was dismissed. The challenged ARAP decisions were not shown to be irrational or otherwise unlawful.
2. Equality of treatment is not a free-standing ground of judicial review. Inconsistency between materially similar cases may constitute irrationality, but the court must identify a rational basis for the distinction and assess the evidence and criteria applied in the individual cases.
3. The ARAP Category 4 criterion required evidence that the applicant had worked in a meaningful enabling role alongside HMG, in an extraordinary or unconventional context, with the relevant connection to an HMG unit. Being an Afghan judge, or having presided over terrorism cases, was not by itself sufficient. The relevant question was whether the evidence established the required connection with HMG at the material time.
4. The comparator judges had served in courts directly supported by HMG, including the Anti-Terrorism Court in Kabul after 2015, and HMG had developed partnerships with judges there. The claimant’s terrorism-related judicial service had ended in 2011. That temporal distinction rationally explained why the decision-makers found that he had not shown that he had worked alongside HMG. His evidence of attending UK-sponsored seminars and his inclusion on a high-profile list did not compel a different conclusion.
5. The ARAP scheme was not incoherent merely because its criteria changed over time, were not always reflected in the Immigration Rules, or overlapped with the emergency Pitting LOTR scheme. ARAP and Pitting LOTR could rationally address the same policy need through different longer-term and emergency measures. The findings concerning inconsistency and arbitrariness in Operation Pitting did not determine the legality of the ARAP decisions.
6. The court declined to admit further post-decision witness evidence. Judicial review concerned whether the challenged decisions were lawful on the material then available. A later reconsideration might be sought within the scheme, but a rolling merits-based reconsideration was not the court’s function. Ground 2 therefore provided no basis for relief.

The court made no order requiring reconsideration. The claim was dismissed.

This was a first-instance judicial review. The judgment records earlier interlocutory decisions in the same claim, including [2022] EWHC 771 (Admin) and [2022] EWHC 1708 (Admin), but the merits claim was dismissed.