Escape from Kabul: advice from the places in between
Lawyers are used to dealing with legal uncertainty.
Perhaps nowhere are things less certain than in UK immigration law, where rules change with ferocious regularity.
And sometimes, those rules are having to be amended on the hoof, in response to certain events, like the pandemic.
Other times, there are no rules, just promises of rules to come, usually via ministerial statements.
But what happens when a client needs advice in this space, in the places in between the rules?
And they need it now, because the missiles are landing in Kiev, or the Taliban are at the gates.
This is an account of advice given from the places in between, where both the Ukrainians and the Afghans were promised a scheme.
But where, in reality, only one was delivered.
Sara was in Kabul when the Taliban entered the city.
Her husband, Hassan, a British national, was in the UK, working towards the Minimum Income Requirement for her spouse visa. He had not worked for long enough in order to make an application by the time the Taliban arrived.
Sara was therefore alone, looking after Yacoob, their severely disabled son, born with a congenital heart defect and constantly in and out of hospital. She was 6 months pregnant with their second child. The application for Yacoob’s British passport had been stuck with HMPO for several months.
Hassan was an old client, and I liaised with the Foreign Office on the family’s behalf as Operation Pitting got underway. After several days of wrangling and mining contacts, we managed to get Sara and Yacoob onto an evacuation list. But given their circumstances, and the risks and chaos of attending the airport, Sara was understandably reluctant to attempt the journey.
My advice was that if they didn’t get on a plane then it would be a year before we could get to them to the UK. Hassan had been told by doctors in Pakistan that Yacoob’s condition needed urgent treatment which was beyond their capability. He could not wait.
Hassan took the next flight to Islamabad, hoping to escort them across the city himself. He made his way across the border, through the Taliban checkpoints, and to Kabul.
Hassan’s return to Afghanistan was significant.
A decade prior he sat in my office, an Unaccompanied Asylum Seeking Child, as the Home Office would say. He explained through an interpreter why he would be in danger if he had to go back. His claim was refused and he was given Discretionary Leave by the Home Office on account of his age.
I represented him in a subsequent appeal. He won and was eventually granted protection status. By this point he was cracking jokes in estuary English, playing county-level cricket, and complaining about the weather.
Hassan later obtained indefinite leave to remain and British citizenship, and met and married Sara, an Afghan national, who had spent most of her life living in Pakistan.
Hassan arrived in Afghanistan on the same day the last British plane departed from Kabul airport.
I advised Hassan on the merits of the various conceivable options for Sara and Yacoob as best I could at the time: the government’s slow and shifty commitment to an Afghan resettlement scheme; a spouse visa application meeting rules on exceptionality; a visit visa application; a discretionary outside the rules entry clearance application; a Part 11 refugee reunion application; and the (then suspended) process for fee waivers in entry clearance applications.
Hassan had borrowed heavily to get to Afghanistan, and would need to borrow more to afford the £3500+ required for a spouse visa application. He had been given a compassionate leave of absence from work which would not last forever.
But he was faced with a winter in Kabul under the Taliban, caring for a pregnant wife and a son with a hole in his heart.
As the Home Office eventually announced that its Afghan “scheme” could not actually receive applications, it became clear that the spouse visa would be the least bad option.
HMPO finally issued Yacoob’s passport in the autumn, and the family took the difficult decision to separate mother and child, and bringing Yacoob to the UK for treatment. We made preparations for the spouse visa application, whilst Hassan got a crash-course in single parenting.
Doctors assessed Yacoob when he arrived. There was nothing they could do but offer palliative care, they said. He would not survive into adulthood.
Hassan relayed this news to Sara over the phone, whilst she waited in Afghanistan.
Advising Hassan and his family during this time was a complex exercise.
For instance, how could Sara make an entry clearance application from Afghanistan, when the location to provide biometrics – usually required in any application – had been closed? If expected to apply and give biometrics in Pakistan, she would usually be required to have permission to stay in that country, and which she did not. Could we use the suspended fee waiver process in these exceptional circumstances?
The Home Office provided little, if any, formal guidance on any of these and other key questions. In fact, on the biometrics location question, it emerged later during litigation that the Home Office would have been fine if people essentially lied on the form as a “workaround”. This obviously would have been helpful to have known at the time.
In these cases, advisors must balance questions of law with issues of practicality. One is looking at the rules, but with an eye also on government statements, ILPA meeting minutes, experiences of other applicants and other lawyers (the ILPA Afghan Google Group is a treasured resource), and good old fashioned instinct.
Immigration advice is given in a legal ecosystem which changes at ferocious speed, with advisors needing to be across detail in multiple areas, and where the law can change when you refresh your browser.
Sara gave birth to a baby daughter as the snow fell in Kabul. We made the application for a spouse visa, Hassan paying over £3600 in money he had to borrow.
A few months later, I had to explain why applications under the Ukrainian scheme could be made for free, whereas his could not.
The passport application for their new baby daughter was repeatedly delayed, to the extent that I had to get involved and write to HMPO.
We tried to escalate the spouse visa application when Hassan was told that Yacoob might only have a few weeks or months to live, and was repeatedly admitted to A&E.
The visa was finally available for collection in Pakistan, almost 6 months after the application was made.
Given delays by HMPO, an Emergency Travel Document application had to be made for the baby, with Hassan having to travel from the UK to attend the visa centre in Peshawar in person.
The family was finally reunited in the UK. And on good days, Hassan tells me, Yacoob swings on the swings, and chases the ducks, whilst his parents watch on.
Names and details have been changed to protect client identities. First published in longer form on Free Movement