LND 1 v The Secretary of State for the Home Department

Hearing dates: 22 and 23 February 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 21 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

INTRODUCTION

Grounds 1 to 4 of this appeal concern the proper interpretation of provisions of the Immigration Rules dealing with applications by Afghan citizens for relocation to, or settlement in, the United Kingdom. The current provisions are included in the Immigration Rules' Appendix Afghan Relocation and Assistance Policy (ARAP) (“the Appendix”). Broadly, the provisions contain a two-stage process. First, there needs to be a decision by the Ministry of Defence (“the MoD”) that an applicant is an eligible Afghan citizen. Secondly, if that is established, the MoD makes an application for entry clearance and the Secretary of State for the Home Department determines whether to grant that application.

An applicant meets the eligibility requirements if conditions 1 and 2 and one or both of conditions 3 or 4 set out in ARAP 3.6 of the Appendix apply. Broadly condition 1 is that, after 1 October 2001, the person was (i) directly employed in Afghanistan by a UK government department (ii) provided goods or services in Afghanistan under contract to a UK government department or (iii) “worked in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department”. Condition 2 is that the person made a substantive and positive contribution in the course of the employment or work or provision of services towards the achievement of the UK government's military objectives or its national security objectives which include counter-terrorism, counter-narcotics and anti-corruption objectives. This appeal does not concern conditions 3 and 4.

The first respondent, LND1 (whom I will refer to as LND), was a judge at the Supreme Court of Afghanistan prior to the takeover of Afghanistan by the Taliban regime in August 2021. He had previously been the head of the court for internal and external security in Kabul. He applied for relocation under the Appendix. Details of the basis of his application are described more fully below. In essence, he contended that in his role as General Director of Investigation and Research of the Supreme Court he had worked with the Counter Narcotics Justice Centre formulating policies, rules and guidelines and training judges in the anti-narcotics court that formed part of that centre. He contended that he had been a member of what he describes as the Afghanistan Penal Code and the Anti-Narcotics Law Drafting Committee. He also relied on the fact that between 2010 and 2012 he had been head of the court for internal and external security in Kabul. The second appellant, the Secretary of State for Defence, decided that LND did not satisfy condition 1 of ARAP 3.6 as he had not demonstrated that he worked alongside a UK government department, working in partnership with or closely supporting and assisting that department. The respondent brought a claim for judicial review of that decision.

Swift J. (“the judge”) allowed the claim on the grounds that the decision was wrong and irrational. In reaching that decision, the judge considered the proper interpretation of condition 1(iii) and its relationship with condition 2. First, he considered that condition 1(iii) had to be applied as part of a single exercise which also considered condition 2 and the person's contribution to the military or national security objectives of the United Kingdom as condition 1(iii) and 2 had to be considered “in the round”. He considered that the decision-maker ought to consider a number of factors including the work the applicant had undertaken, the nature of the institutions in which he worked, the connection between those institutions and relevant UK government departments and the contribution made by the work of those institutions to UK government departments. Secondly, he held that, on the facts of this case, the second appellant had not adopted that approach and its decision that LND was not eligible was flawed. Thirdly, he determined that there was only one rational decision that the second appellant could reach in this case, namely that LND satisfied both conditions 1 and condition 2 of ARAP 3.6 of the Appendix. Fourthly, he considered that reasons for a decision on eligibility had to be given but, as the second appellant had in fact given reasons for its decision, and had not relied solely on a pro-forma refusal, the decision was not unlawful because of a failure to give reasons. Finally, he dismissed the respondents' claim that the first appellant, the Secretary of State for the Home Department alone (and not the Secretary of State for Defence), had to determine eligibility.

The two appellants, the Secretary of State for the Home Department and the Secretary of State for Defence, have permission to appeal on four grounds namely that the judge erred in:

(1) His construction and application of the ARAP Scheme, specifically by conflating Conditions 1 and 2;

(2) His finding that LND satisfied the eligibility criteria under conditions 1 and 2;

(3) His finding, in any event, that the only rational outcome was that LND's application had to be granted; and

(4) His finding that the reasons given in the pro-forma decision letter were insufficient.

The respondents had permission to cross-appeal on one ground only, namely that the Secretary of State for the Home Department alone was responsible for determining whether the eligibility criteria were met. At the hearing, counsel for the respondents withdrew the cross-appeal and I say no more about it.

THE LEGAL FRAMEWORK

The Immigration Act 1971 (“the 1971 Act”)

Subject to some immaterial exceptions, persons who are not British citizens require leave to enter the United Kingdom. The Secretary of State must lay before Parliament statements of the rules laid down by him as to the practice to be followed in granting leave: see section 3(2) of the 1971 Act.

The Policy and the Immigration Rules

In December 2020, the Afghan Relocations and Assistance Policy was adopted. That dealt in part with the relocation to the United Kingdom of certain categories of Afghan citizens. Category 2 included, broadly, those individuals employed in Afghanistan by the United Kingdom government in exposed or meaningful roles who were assessed to be at serious risk as a result of their work. The policy also included arrangements for the giving of assistance within Afghanistan to other categories of Afghan citizens. The policy was seen as a means of showing commitment and paying a debt of gratitude towards those who had worked for or with the United Kingdom Government in Afghanistan. Those requirements as regards relocation were then included within a statement of changes to the Immigration Rules laid before Parliament in April 2021.

In May 2021 the policy of allowing applications for relocation to the United Kingdom was expanded to include those providing linguistic services to the United Kingdom Armed Forces and those who worked with or alongside a United Kingdom government department in Afghanistan in exposed or meaningful roles that made a material difference to the delivery of the United Kingdom's mission in Afghanistan. Further changes were made at different times in 2021 and 2022. Changes were made to the Immigration Rules reflecting those amendments to the policy.

The present Immigration Rules

The present requirements governing Afghan citizens seeking to relocate to the United Kingdom were made by changes to the Immigration Rules which now include the relevant provisions in the Appendix. The heading to the Appendix confirms that applications under this route are to enable Afghan citizens and their dependent family members to relocate to the United Kingdom (or to settle in the United Kingdom if they are already here) in circumstances where the MoD has decided that they meet the requirements for relocation as an “eligible Afghan citizen”. The heading also explains that here is a two-stage application process. An application must first be made, by the applicant, to the MoD, which will decide if the applicant is an eligible Afghan citizen. If the person is eligible for relocation to the UK, the second stage is that the MoD will make an application for entry clearance (if they are outside the UK) or settlement (if they are in the UK) on behalf of the applicant.

The relevant eligibility requirements in the present case are included in the Appendix which, so far as material, provides:

“ARAP 3.1. To be an eligible Afghan citizen the applicant must have applied to, and received from, the Ministry of Defence a decision that the requirements under ARAP 3.2. to ARAP 3.6. are met and that ARAP 3.7. does not apply (“the ARAP eligibility decision”).

ARAP 3.2. An eligible Afghan citizen is a person who:

(a) is an Afghan citizen; and

(b) is aged 18...