The King on the application of MKA v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 16 May 2023 |
| Neutral Citation | [2023] EWHC 1164 (Admin) |
| Docket Number | Case No: CO/2805/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 1164 (Admin)
Mrs Justice Foster DBE
Case No: CO/2805/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Nikolaus Grubeck and Ms Alexandra Littlewood (instructed by Leigh Day) for the Claimant
Mr Edward Brown KC and Mr Richard Evans (instructed by Government Legal Department) for the Defendant
Hearing date: 12 October 2022
Approved Judgment
This judgment was handed down remotely at 3.00pm on 16 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
In this claim the Claimant MKA challenges a decision of 18 May 2022 of the Defence Afghan Relocation and Resettlement Panel (“the Panel”) reaffirming an earlier decision of 21 July 2021 that the Claimant is ineligible for resettlement in the UK under the Afghan Relocations and Assistance Policy (“ARAP”).
MKA is a national of Afghanistan who, between 2012 and 2020, worked as a technical engineer for internet, network and communication services used by the British military at Camp Qargha in Afghanistan. From 2014 he also worked as a technical engineer at the British Embassy. He provided his services exclusively at British camps and at the British Embassy, although he was employed by various Afghan networks and companies and not directly by the British. He says that the projects upon which he worked directly supported the British mission and refers in particular to the construction of an internet tower connecting networks of the British and the American Military in Afghanistan.
He says he was at a significantly increased risk of death and/or torture because of his work which was open and public in nature. Since the fall of Kabul in August 2021 he says he was threatened and intimidated by people he believes to be members or supporters of the Taliban. He fled to the United Arab Emirates in December of 2021 but his position there is not secure.
GENERAL BACKGROUND and POLICY
The background which gave rise to the ARAP is well known and not in dispute. It was described by Mrs Justice Lang in R (on the application of S) v Secretary of State for Defence [2022] WL 02106242 materially thus:
“ 5. Following the terrorist attacks against the United States of America (“USA”) on 11 September 2001, the USA led a military intervention against Al Qaeda groups, and the Taliban government in Afghanistan. The UK took a significant part in the USA's initial intervention. Subsequently, the operation was supported by NATO and a joint international force, collectively called the International Security Assistance Force (“ISAF”), in which the UK played a leading political, diplomatic and military role.
…
7. On 29 February 2020, the USA and the Taliban signed the Doha Agreement (officially titled the “Agreement for Bringing Peace to Afghanistan”) that provided for the withdrawal of all USA and allied military forces and civilian personnel from Afghanistan by 1 May 2021. The withdrawal was conditional upon the Taliban upholding the terms of the agreement that included not to allow Al Qaeda or any other extremist group to operate in the areas they controlled. The withdrawal of the USA was later deferred to 31 August 2021.
8. In May 2021, the Taliban launched a major offensive against the Afghan Armed Forces, and then made rapid advances. By 15 August 2021, the Taliban had seized Kabul. USA and NATO troops retreated to Kabul airport from where they operated an emergency airlift for all NATO's civilian and military personnel, other foreign nationals, and at-risk Afghan nationals. The final British flight from Kabul took place on 28 August 2021. The last USA military planes left Afghanistan on 30 August 2021. Taliban soldiers then entered the airport and declared victory. The Taliban government has been in total control of Afghanistan since that date. The UK Embassy and other NATO Embassies have remained closed.”
The ARAP was announced on 29 December 2020. It was launched on 1 April 2021 to provide for certain personnel who had worked with the UK in Afghanistan to offer relocation to eligible Afghan citizens employed by the UK government in Afghanistan in “ exposed, meaningful or enabling roles” and assessed to be at serious risk as a result of their work.
In S Lang J described its introduction:
“ 58. ARAP was introduced jointly by the Secretary of State for Defence (“SSD”) and the SSHD with effect from 1 April 2021. Its stated purpose was to “offer relocation or other assistance to current and former Local Employed Staff [“LES”] in Afghanistan to reflect the changing situation in Afghanistan”.
59. ARAP replaced the Intimidation Policy which was introduced in 2010. The ex-gratia scheme, which provides redundancy payments, will continue alongside ARAP until November 2022, when it will close.
60. ARAP is routinely updated. …”
The policy explained the position for those to whom the policy was directed, namely Locally Employed Staff [“LES”]:
“ The Relocation Offer creates the possibility for current and former LES to have the default option to relocate to the UK if they meet the eligibility criteria above. It is offered to LES whom the UK government considers to have put themselves in the most danger and contributed the most to the UK mission in Afghanistan. The Relocation Offer is based on recognition of service and an assessment of likely current and future risk to LES due to the nature of their work for the UK government in the evolving situation in Afghanistan.”
ARAP is also reflected in Part 7 of the Immigration Rules which have been amended from time to time to reflect changes made in the underlying policy.
The policy at the material time, and that under which the Defendant decided his case, gave four categories of persons eligible for assistance of which Categories 1, 2 and 4, are relevant. It was referred to as the “ Afghan Relocations and Assistance Policy: further information on eligibility criteria and offer details” and stated materially:
“ Category 1 The cohort eligible for urgent relocation comprises of those who are assessed to be at high and imminent risk of threat to life.
Category 2 The cohort eligible for relocation by default comprises of those who worked or work for HMG in exposed meaningful enabling roles.
1. Exposed meaningful enabling roles are roles that made a material difference to the delivery of the UK mission in Afghanistan, without which operations would have been adversely affected, and that exposed LES to public recognition in performance of their role, leaving them now at risk due to the changing situation in Afghanistan.
2. Examples of such roles are patrol interpreters, cultural advisors, certain embassy corporate services, and development, political and counter-terrorism jobs, among others. This is not an exhaustive list, nor are all those who worked in such roles necessarily eligible by default.
3. Locally employed staff dismissed from employment are excluded from relocation by default, unless in exceptional circumstances on a case-by-case basis, without prejudicing their right to other forms of assistance under the scheme”
…
Category 4 The cohort eligible for assistance on a case-by-case basis are those who worked in meaningful enabling roles for HMG, in extraordinary and unconventional contexts, and whose responsible HMG unit builds a credible case for consideration under the scheme […]”
The initial decision was made in a letter dated 13 July 2021; it stated the Claimant was not eligible under ARAP. It then set out “ with reference to the criteria” the wording contained above under Category 2.1 to 2.3 above, then stated:
“ Based on the information that you provided and our records, you do not meet the criteria for the following reasons: because you were not directly employed by Her Majesty's Government and are not in the scope of the policy.”
By this date in fact the policy did not extend only to those who were directly employed; that had changed in May 2021.
In any event, the Claimant made requests for reconsideration which were formalised in February 2022. The reconsideration decision was communicated by letter dated 18 May 2022, and stated to be by reference to the policy as at 21 July 2021. It gave as reasons for the refusal:
“ From the information you have provided, the Defence Afghan Relocation and Resettlement (DARR) Review Panel has upheld the decision that you do not meet the eligibility criteria for Categories 1, 2 or 4 of the ARAP. Review decisions are made in accordance with the policy in place at the time of the original eligibility decision which in this case was 21/07/2021.
From the information you have provided you have been found ineligible for Category 1 of the ARAP because we have assessed you do not meet the following criteria:
You are at high risk and imminent risk of threat to life.
From the information you have provided you have been found ineligible for Category 2 of the ARAP because we have assessed you do not meet the following criteria:
You worked or work for HMG in an exposed meaningful enabling role that made a material difference to the delivery of the UK mission in Afghanistan, without which operations would have been adversely affected, and that exposed you to public recognition in performance of your role, leaving you now at risk due to the changing situation in Afghanistan.
From the information you have provided you have been found ineligible for Category 4 of the ARAP because we have assessed you do not meet the following criteria: You worked in a meaningful enabling role for HMG, in extraordinary and unconventional contexts.”
In the words of the Defendant's deponent Katherine Carr,...
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