The King on the Application of MP1 v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 04 March 2024 |
| Neutral Citation | [2024] EWHC 410 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-002091 |
and
[2024] EWHC 410 (Admin)
Mr Justice Julian Knowles
Case No: AC-2023-LON-002091
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Duran Seddon KC and Ali Bandegani (instructed by Wilson Solicitors LLP) for the Claimant
Edward Brown KC and Luke Tattersall (instructed by GLD) for the Defendant
The Interested Parties did not appear and were not represented
Hearing date: 16 November 2023
Approved Judgment
This judgment was handed down remotely at 14:00 on 4 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The Claimant, MP1, is a lawyer and former Afghan judge. The Interested Parties are his wife and children. They are all Afghan nationals. An order has been made preventing their identification. The reasons for that will become obvious. I have endeavoured in this judgment to give sufficient detail to allow it to be comprehensible, whilst at the same time protecting the Claimant and his family's anonymity. I am satisfied on all of the evidence, some of which I will describe, that they are at real risk from the Taliban in Afghanistan.
The Claimant challenges the Defendant's decision dated 4 May 2023, taken by the Defence Afghan Relocation and Resettlement Review Panel (hereafter ‘the Second Review Panel’), that he and his family are not eligible for relocation to the UK under the Afghan Relocations and Assistance Policy (ARAP).
The Claimant's application was first refused on 30 March 2022. This decision was then reviewed twice, leading to the final decision on 4 May 2023 – hence the Second Review Panel.
Had the Claimant been found to qualify under the ARAP then he and his family would have been entitled to apply for entry clearance to the UK under the Immigration Rules (the Rules).
The principal issues arising on this claim are whether the Second Review Panel in the following respects:
a. Ground 1: that it failed (a) to consider relevant evidence before it; and (b) to provide sufficient reasons for its decision in the light of the evidence; and so (c) rendered a decision that was unreasonable and irrational.
b. Ground 2: that it mis-construed and applied an unlawfully narrow approach to the ARAP.
In this judgment: ‘CB’ is Core Bundle’; ‘SB’ is Supplementary Bundle; ‘SFG’ is the Claimant's ‘Statement of Facts and Grounds; ‘SGD’ is the Defendant's Summary Grounds of Defence; and ‘DGD’ is his Detailed Grounds of Defence.
The Afghan Relocations and Assistance Policy (ARAP)
The background to the ARAP was set out by Hill J in R (JZ) v Secretary of State for the Home Department [2022] EWHC 2156 (Admin), [7]–[9].
ARAP was launched on 1 April 2021 and remains in force. It has been revised several times. The version I am concerned with is that which was in force on 30 March 2022, when the initial decision was taken to refuse the Claimant's application. It is and was contained in Appendix ARAP to the Rules.
When the Taliban regained power in Afghanistan in August 2021, the UK Government (HMG) evacuated British nationals and certain groups of Afghans, and brought them to the UK under Operation Pitting. During that operation, there was an identified need to assist others at risk, and an additional cohort of Afghans were granted leave to remain outside the Rules (LOTR).
The Introduction to the ARAP states:
“ Introduction
Background
In recognition of the commitment and bravery shown by local staff who supported the UK in Afghanistan, the UK government introduced 2 schemes: the ‘Intimidation Policy’ introduced in 2010 and the ex-gratia scheme (EGS) introduced in 2013. These policies were designed to support those who worked with or alongside British Forces in Afghanistan, often in dangerous and challenging situations, offering relocation to those at risk as a result of their work.
The intimidation policy closed in 2021, and the EGS closes on 30 November 2022, at which point the Afghan Relocations and Assistance Policy (ARAP) will be the sole route to relocation in the UK for Afghans who worked with or with the UK government in Afghanistan.
The ARAP scheme was implemented on 1 April 2021 under the Immigration Rules …
Policy intention
The policy intention is to:
• honour the service of eligible Afghan citizens by providing support that properly reflects their work and the risks involved
• ensure that eligible Afghan citizens, their partner, dependent children and eligible additional family members, who relocate to the UK, can do so permanently to build their lives and their future in the UK.”
An application by an Afghan under the ARAP goes to the Ministry of Defence (MoD). An eligibility decision is made by the Defence Afghan Relocations and Resettlement team (DARR), following a referral to the relevant UK government department where that is necessary. Other government departments can be consulted where necessary as part of the process to determine whether they would be willing to support or ‘sponsor’ the application.
Those who are assessed to be ineligible under the ARAP have the right to seek a review of their decision if one or both of the following conditions are met: (a) they believe the decision was not made in accordance with the ARAP; (b) they can supply new evidence to support their case that was not available when the decision was made. Applicants have, in general, one right of review of the initial decision.
The applicable version of ARAP in the Rules (ie, the version in force on the date of the initial decision rejecting the Claimant's application, 30 March 2022) identified four categories of persons (or cohorts) eligible for assistance. Those in Categories 1, 2 and 4 were eligible for relocation. Those in Category 3 were eligible for other support, and that category is not relevant to this claim.
The persons in Categories 1, 2 and 4 were defined in [276BB3], [276BB4] and [276BB5] of the Rules respectively as follows.
Category 1:
“(i) the person was at any time on or after 1 October 2001 directly employed in Afghanistan by a UK government department; and
(ii) because of that employment, there is a high and imminent risk of a threat to the person's life.”
Category 2:
“(i) at any time on or after 1 October 2001, the person:
(a) was directly employed in Afghanistan by a UK government department; or
(b) provided linguistic services to or for the benefit of members of the UK armed forces in Afghanistan under contract to UK government department (whether as, or on behalf of, a party to the contract); and
(ii) the nature of the role in which the person was employed was such that the UK's operations in Afghanistan would have been materially less efficient or materially less successful if a role or roles of that nature had not been performed; and
(iii) the nature of the role exposed the person to being publicly recognised as having performed that role; and
(iv) as a result of that public recognition, the person's safety is at risk.”
The Claimant has never claimed to be within Categories 1 or 2.
Category 4 is the one relevant in his case. It provides (or provided at the relevant time) (my emphasis):
“A person falls within this paragraph if the person meets conditions 1 and 2 and one or both of conditions 3 and 4. For the purposes of this paragraph:
(i) condition 1 is that at any time on or after 1 October 2001, the person:
(a) was directly employed in Afghanistan by a UK government department; or
(b) 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
(c) worked in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department;
(ii) condition 2 is that the person, in the course of that employment or work or the provision of those services, made a substantive and positive contribution towards the achievement of:
(a) the UK government's military objectives with respect to Afghanistan; or
(b) 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);
(iii) condition 3 is that because of that employment, that work or those services, the person:
(a) is or was at an elevated risk of targeted attacks; and
(b) is or was at high risk of death or serious injury;
(iv) condition 4 is that the person holds information the disclosure of which would give rise to or aggravate a specific threat to the UK government or its interests”
Although he first applied under ARAP when it was in a different form, the Claimant ultimately sought assistance by way of re-location for him and his family pursuant to Category 4.
In broad terms, he relied on his service in Afghanistan as a criminal defence lawyer working for an NGO from 2008, and then as a judge in Helmand Province from 2015 until 2021. As a judge he presided over a range of cases including terrorism and narcotics cases.
Procedural history
On 22 August 2021, during Operation Pitting, the Claimant emailed the UK authorities seeking urgent assistance. He received an automated response asking him to submit an ARAP form, which he did that day. He did not receive a reply, and was not evacuated.
On 1 and 23 November 2021 respectively, the Claimant (who was now represented) submitted a further ARAP form. He made detailed representations and supplied a significant quantity of supporting evidence, asserting that he qualified under the ARAP policy as it then was. (From my reading of that early...
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