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

Eligibility under an exceptional relocation policy for those working “alongside” a government entity requires a direct relationship with that entity. An indirect contribution through another institution, even with a shared mission, is insufficient. In reviewing an evaluative consistency challenge, the court must ask whether the decision-maker could rationally identify a material institutional or temporal difference; the comparison is not a tick-box exercise. Judicial review ordinarily examines the material available when the impugned decision was made. Later evidence cannot turn the proceedings into a rolling merits review, although it may support reconsideration by the decision-maker. A final permission decision may be reopened only under the cumulative exceptional conditions in Civil Procedure Rules rule 52.30.

The applicant was an Afghan judge who had heard terrorism cases in Afghanistan between 2008 and 2011. He sought relocation under the Afghan Relocations and Assistance Policy. The Foreign, Commonwealth and Development Office and the Ministry of Defence declined to sponsor him. He also sought leave to enter outside the Immigration Rules.

Hill J dismissed the judicial review claim in [2022] EWHC 2156 (Admin), refused to admit further evidence, and ordered the applicant to pay costs. The applicant sought permission to appeal against that decision and applied under rule 52.30 of the Civil Procedure Rules to reopen an earlier refusal of permission concerning the original ARAP ground. The central issues were whether the comparator judges had been rationally treated differently, whether later evidence could be admitted, and whether it justified reopening the earlier permission decision.

The Court, in the judgment of Underhill LJ with which Simler and Warby LJJ agreed, refused permission to appeal against the dismissal of the judicial review claim and the costs order. It dismissed the application to reopen the earlier refusal of permission.

1. Construction of category 4. Category 4 of ARAP required a meaningful enabling role directly alongside HMG. A purely indirect contribution through others with a shared underlying mission was insufficient. The later evidence about the Kabul Anti-Terrorism Court did not affect that construction.
2. Rational distinction. The relevant distinction was not the mere date of the applicant’s service. The decision-maker could rationally regard the post-2015 partnership between HMG and judges of the Kabul Anti-Terrorism Court as materially different from the applicant’s earlier work at the Justice Centre in Parwan and the court sitting at Pol-e-Charkhi. The assessment was evaluative and not a tick-box exercise. There was no real prospect of establishing irrational differential treatment.
3. Later evidence. The court properly focused on the material available to the original decision-makers. The further witness statement was not admissible to impugn decisions made without it. If the new evidence justified a different result, the appropriate course was reconsideration under the scheme, not rolling merits-based judicial review.
4. Reopening. The cumulative conditions in Civil Procedure Rules rule 52.30 were not met. The further information did not establish real injustice because it did not undermine the finding that the applicant was materially different from the comparator judges.
5. Costs and citation. The costs decision disclosed no error and was within the lower court’s discretion. The Court also stated that this permission decision was confined to its particular facts and arguments, was not binding, and should not be cited as authority, although it could be referred to for procedural history. The separate LOTR challenge was not before the Court.

• Court of Appeal (Civil Division). In [2023] EWCA Civ 178, permission to appeal was refused and the application to reopen the earlier permission decision was dismissed.
• Administrative Court and Planning Court. Hill J dismissed the judicial review claim in [2022] EWHC 2156 (Admin), refused the application to admit further evidence, and ordered costs against the applicant.
• Earlier permission stages. Lane J refused permission to apply for judicial review. Kerr J maintained that refusal regarding the ARAP decision but granted permission regarding the LOTR decision. Lewis LJ later refused permission to appeal against the ARAP refusal.