FMA v Secretary of State for the Home Department

Hearing dates: 14 – 15 and 31 March 2023, and 9 June 2023

Approved Open Judgment

This judgment was handed down remotely at 10.30am on 27 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

A. Introduction

The First Claimant is an Afghan national who worked as an interpreter in Afghanistan, first for British forces and then for the United States' army. In June 2021 he made an application to enter the United Kingdom together with his wife and children (the other Claimants in these proceedings). That application was made under the auspices of the Afghan Relocation and Assistance Policy (“the ARAP”).

Application of the ARAP comprises two phases: the first phase addresses the applicant's eligibility to be considered under the policy. The eligibility requirements are now contained in the ARAP Appendix to the Immigration Rules. The First Claimant's work for British armed forces meant that he met the eligibility criteria, and this was confirmed in a letter to him dated 25 June 2021. In this case, the second phase concerned whether the First Claimant met the requirements to obtain a visa to enter the United Kingdom. In this case, that decision was taken by the Home Secretary by reference to the suitability requirements in Part 9 of the Immigration Rules. Paragraph 9.3.1 of the Immigration Rules provides as follows:

“An application for entry clearance, permission to enter or permission to stay must be refused where the applicant's presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality ground).”

(1) The decisions taken by the Home Secretary

In these proceedings the Claimants challenge the Home Secretary's decisions to refuse their applications for visas on the ground that the First Claimant's presence in the United Kingdom is not conducive to the public good. The Home Secretary has considered this matter on three occasions. The first was in a decision made on 4 August 2021 notified to the Claimant by letter dated 16 August 2021. That letter stated as follows:

“You have sought entry clearance to the United Kingdom as a relevant Afghan citizen, however your presence in the UK has been assessed as not conducive to the public good on grounds of national security due to your conduct, character and associations. I am therefore satisfied that your presence in the UK would not be conducive to the public good. I therefore refuse you entry clearance to the UK under paragraph 276BC1 and 9.3.1 of Part 9 of the Immigration Rules.”

The Claimants issued proceedings challenging that decision. The First Claimant made a witness statement dated 3 November 2021 in support of that claim. On 23 November 2021 the Home Secretary agreed to withdraw the August 2021 decision and reconsider the visa applications. The Home Secretary's second decision was notified to the First Claimant by letter dated 4 March 2022, which included the following:

“You were previously informed of the decision to refuse your visa in a refusal notice dated 16 August 2021. Following a review of this decision, we agreed to reconsider your visa application and issue a fresh decision by 04 March 2022. We have undertaken a thorough reconsideration of your visa application for Entry clearance to come to the United Kingdom as a relevant Afghan citizen, taking into account all the information available to us, including the representations put forth by your solicitors. Our new decision is outlined below:

You have sought entry to the United Kingdom as a relevant Afghan citizen, however your presence in the UK has been assessed as not conducive to the public good on grounds of national security based on your conduct and character as evidence reveals that you released sensitive information and threatened to kill coalition forces when this was discovered. I therefore refuse you entry clearance to the UK under Paragraph 276BC1 and 9.3.1 of Part 9 of the Immigration Rules.”

The Home Secretary's open disclosure in these proceedings includes a “consideration minute” dated 4 March 2022 (“the March 2022 consideration minute”). This document, prepared by a case worker in the Home Office, was the premise for the decision in the 4 March 2022 letter. The relevant part is under the heading “Recommendation / Proposal”. Although this is lengthy it needs to be set out for the purposes of this judgment (with paragraph numbers added for ease of reference later in this judgment).

“1. I have considered the information in respect of [FMA], as well as the witness statements and evidence provided in support of [FMA's] application for judicial review, including those given by [FMA], his wife and his friends and the recommendation letter from Sergeant BARNHART.

2. The information outlines that [FMA] released sensitive information and when discovered that he shared sensitive information he threatened to kill.

3. [FMA] claims that his employment with the US forces ended on 20 September 2011. This is supported by Sergeant BARNHART's letter of recommendation. [FMA] claims that he was fired because he took unauthorised annual leave to care for his sick mother and this is the only reason he can think of which would lead to his application being refused. The decision depends on the act of disclosing sensitive information and then threatening to kill, behaviour which is serious irrespective of when it occurred.

4. Although it a single event from 10 years ago, the release of sensitive information is serious and reflects badly on of [FMA's] character. Irrespective of the intended recipients, releasing the information is negligent and reckless as it risks the information reaching hostile actors. Given that the information was “sensitive”, this has the potential for wide-ranging consequences. Due to his work for US Forces, [FMA] could have been exposed to information sensitive to Coalition Forces, including the United Kingdom. Therefore, releasing sensitive information has the potential to negatively impact not only the US and their personnel, but also the UK, and British and Coalition Forces more generally. There is also the possibility [FMA's] actions undermined the Coalition Force's mission in Afghanistan, which the UK were in agreement with. Therefore, whilst [FMA] may have released information when employed by the US and not British Forces, this activity could also have impacted upon the UK and its interests.

5. The threat to kill indicates a confrontational aggressive and reactive attitude which unnecessarily escalated the situation. The fact that [FMA] exacerbated his behaviour through threats to kill reinforces the seriousness of his conduct. It demonstrates that when challenged he chose to react negatively and aggressively, which raises questions about how he will react if he were challenged by the UK authorities or members of the public. Therefore, [FMA's] conduct which has demonstrated a willingness to respond with aggression when confronted, has indicated that if he were permitted entry to the UK, his presence could pose a potential threat to the UK public.

6. The seriousness of the conduct and the potential consequences of it outlined above would apply equally, irrespective of whether [FMA] engaged in this behaviour before or after being fired from the US Forces. Nevertheless, if the conduct occurred after [FMA] was fired it raises the possibility that the release of sensitive information was a deliberate act of retaliation. If taken in conjunction with the fact that he made a threat to kill when discovered it further reinforces the concerns about what [FMA] is willing to do when confronted, how he might react in the future, and the threat he could pose to the UK if granted a visa.

7. I have assessed as indicating that [FMA] could pose a threat to the UK public if granted a visa.

8. In support of his application, [FMA] has emphasised the danger that he was in during his work for British Forces, as well as emphasising that he agreed with the work of the British and American forces, and never had any complaints made against him. [FMA] also highlights the risk that he and his family faces and the impact that the Taliban takeover has had on his life. He also provides a letter of recommendation from Cody J BARNHARD, a retired Sergeant with the US Army who supervised him and supporting witness statements from two fellow interpreters who have been relocated to the UK. However, given that [FMA] failed to declare the fact that he had released sensitive information and threatened to kill when discovered, information that [FMA] could reasonably be expected to know. There is the possibility that they do not know about this information. Consequently, these positive representations cannot negate or sufficiently counter-balance the information against him. Neither can the praise that he received from his work for British and American forces, which does not negate the risk posed by the derogatory behaviour outlined in the information.

9. The factors in [FMA's] favour notwithstanding, the information indicates that, on balance, the refusal of [FMA's] visa is justified given the threat that he poses to...