LND1 and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWHC 1795 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/71/2023 |
and
[2023] EWHC 1795 (Admin)
Mr Justice Swift
Case No: CO/71/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ramby de Mello and Edward Nicholson (instructed by Luke Bridger Law Ltd) for the Claimants
Sian Reeves (instructed by Government Legal Department) for the Defendants
Secretary of State for the Foreign, Commonwealth and Development Affairs did not appear and was not represented
Hearing dates: 29 and 30 March 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 14/07/2023 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, between 2008 and August 2021, held judicial and other related positions in Afghanistan. In November 2021 he applied on his own behalf and on behalf of his wife and children (who are the Second to Sixth Claimants) under the Afghan Relocations Assistance Policy (“the ARAP scheme”) for relocation to the United Kingdom. The ARAP scheme is a successor to arrangements originally devised by the Ministry of Defence, and now contained in the Immigration Rules (in the “ARAP Appendix” to those Rules). The scheme falls into two parts. The first part is an eligibility requirement. An applicant must apply to the Ministry of Defence for a decision on eligibility. Eligibility is determined by reference to the criteria at paragraphs ARAP 3.1 – 3.7 in the ARAP Appendix. If an applicant is determined to be eligible for relocation, the Home Secretary, applying the provisions in Part 9 of the Immigration Rules, then determines whether to grant the applicant entry clearance to the United Kingdom: see ARAP 2.1 and 6.1 – 6.2.
By a decision letter dated 9 December 2022 the First Claimant's application was refused on the ground he did not meet the eligibility requirement. The Claimants challenge that decision on a number of grounds. First, they contend that the conclusion that the First Claimant did not meet the eligibility requirement was “wrong and irrational”; second that, when taking the decision, the Secretary of State for Defence acted unlawfully by placing an “excessive evidential burden” on the First Claimant; third, that no adequate reasons were given for the decision; and fourth that the eligibility decision should have been taken by the Home Secretary, not the Secretary of State for Defence.
(1) The ARAP eligibility requirements
The ARAP scheme provides that “eligible Afghan citizens” are Afghan citizens, aged 18 or over, who made an application on or after 1 April 2021, and who either (a) meet the requirements of ARAP 3.4 (high and imminent threat to life); or (b) the requirements of ARAP 3.5 (former employees eligible for relocation); or (c) the requirements of ARAP 3.6 (special cases). The special cases provision is the one that is relevant for present purposes. It comprises four conditions and is as follows:
“ARAP 3.6 A person meets the eligibility requirement if conditions 1 and 2 and 1 or both of conditions 3 and 4 applies:
(a) Condition 1 is that at any time on or after 1 October 2001, the person:
(i) was directly employed in Afghanistan by a UK Government department; or
(ii) provided goods or services in Afghanistan under contract to a UK Government department (whether as, or on behalf of, a party to the contract); or
(iii) worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department.
(b) Condition 2 is that the person, in the course of the employment or work or the provision of those services under Condition 1, made a substantive and positive contribution towards one or more of the following:
(i) the UK Government's military objectives with respect Afghanistan; or
(ii) the UK Government's national security objectives with respect to Afghanistan (and for these purposes, the UK Government's national security objectives include counter-terrorism, counter-narcotics and anti-corruption objectives).
(c) Condition 3 is that because of the person's employment or work or those services under Condition 1, the person:
(i) is or was at an elevated risk of targeted attacks; and
(ii) is or was at serious risk of death or serious injury.
(d) Condition 4 is that the person holds information, the disclosure of which would give rise to or aggravate a specific threat to a UK Government department or its interests.”
(2) The decision on eligibility
The decision letter of 9 December 2022 was in a standard form. The letter started by stating the First Claimant was not eligible for relocation to the United Kingdom. Then, the letter stated, formulaically, that he did not meet the terms of various parts of (what are now) ARAP 3.4 – 3.6. For present purposes the material part of the letter is paragraphs 5 – 6 which stated as follows:
“5. From the information you have provided you are not eligible under Category 4 of the ARAP scheme because you do not meet the following criteria:
• You were directly employed in Afghanistan by the UK Government, or provided goods or services under contract to the UK Government, or worked in Afghanistan alongside a UK Government Department, in partnership with or closely supporting it;
6. You therefore do not meet the necessary criteria for Category 4 of ARAP scheme.”
These paragraphs addressed only Condition 1 in ARAP 3.6. Conditions 2, 3 and 4, were not considered.
On the same day a lawyer in the Government Legal Department's Defence, Security and General Public Law team sent an email to the Claimants' solicitors referring to eligibility decisions taken on the First Claimant's application and one other application. So far as concerned the First Claimant the email stated as follows:
“6. Whilst the applicant has set out their judicial role(s) they were not able to demonstrate that they worked alongside, in partnership or closely supporting and assisting a UK Government Department. Analysis of records and other assessments did not show the applicant was affiliated or known to a UK Government Department.
7. The applicant's asserted counter terrorism work predates the FCDO's partnership with the Kabul counter-terrorism courts in 2015. The FCDO does not have records of having worked alongside the applicant at those courts. There is no evidence that the applicant's asserted work on the penal code was conducted in partnership with or alongside, or closely supporting the FCDO.
8. The applicant states that his role was as Director General of Investigation and Research at the Supreme Court (2016 – 2021) and that he was actively involved in the work of the Counter Narcotics Justice Centre (CNJC) 2019 – 2021 although the NCA did work closely with the CNJC, in the event that the applicant carried out this role, he was not directly employed by or contracted to the NCA. Neither was he said to have worked alongside in partnership with or closely supported and assisted the NCA in delivering its counter-narcotics mission in Afghanistan. The UK did provide general funding to the Counter Narcotics Justice Centre (as we also did with Kabul Counter Terrorism Courts) but that does not equate to a CAT 4 eligibility for individuals who worked there. In both instances there was a strong relationship built with key individuals.
9. Providing a brief at the British Embassy Kabul does not indicate the applicant worked alongside, in partnership or closely supported and assisted HMG.
10. In conclusion, there was insufficient evidence in the applicant's submission to indicate they had worked alongside, in partnership or closely supported and assisted the MOD, FCDO, NCA or any other UK Department or Unit.”
This document (“the 9 December email”), like the pro-forma decision letter, only considered ARAP 3.6, Condition 1.
In the course of this litigation the Secretary of State for Defence has filed further evidence concerning the decisions and the decision-making process, in particular: (a) a witness statement dated 24 February 2022 by Philip Higginson the Deputy Director at the Ministry of Defence responsible for the teams who make eligibility decisions on ARAP applications; (b) two chains of emails from November 2021 which evidence the decision on the First Claimant's application; (c) a response to a Part 18 request dated 16 March 2023; and (d) a response dated 30 March 2023 to a request for disclosure.
B. Decision
( 1) Ground 1. The eligibility decision was “wrong and irrational”.
Ground 1 raises two issues. The first is the approach to be taken when applying ARAP 3.6, Condition 1. The second issue is whether the conclusion of fact that the First Claimant did not meet the requirements of Condition 1 was a conclusion lawfully open to the Secretary of State for Defence.
Condition 1 of ARAP 3.6 is addressed by both the pro-forma decision letter and the 9 December email. On the facts of this case there could be no question either that the First Claimant was employed by a United Kingdom government department, or that he had been contracted to supply goods or services to a government department. Plainly, he had done neither. In this case, for the purposes of Condition 1, the question was whether he had “worked … alongside a UK government department in partnership with or closely supporting or assisting …” such a department. In his judgment in R(CX1 and others) v Secretary of State for Defence [2023] EWHC 284 (Admin) at paragraph 85, Lane J construed an identical provision in an earlier version of the ARAP scheme as requiring an applicant to have worked alongside a United...
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