The High Court has quashed a decision to refuse entry clearance under the Afghan Relocation and Assistance Policy (“ARAP”) on national security grounds. Unfortunately, like all national security cases it is difficult to work out exactly why the Court decided the decision was unlawful.

R (ALO) v Secretary of State for the Home Department [2022] EWHC 2380 (Admin) concerns an Afghan interpreter who worked for British forces for about four months, as well as having worked at various times for American forces during the conflict in Afghanistan. During the course of his employment with the American forces, some security concerns were raised because two of his relatives had connections to the Taliban. ALO was placed on a watchlist in America. However, after passing a polygraph test he was removed from the list and re-employed by the American forces. He even earned letters of commendation for saving the lives of coalition forces by spotting IEDs.

Nonetheless, when ALO and his family applied under the Afghan Relocation and Assistance Policy, he was refused on the grounds that his presence in the UK would not be conducive to the public good.  No detailed reasons were given.

ALO challenged the failure to give reasons as both a breach of common law procedural fairness and a violation of Article 6 of the European Convention on Human Rights. But he failed on both grounds. ALO succeeded, however, in arguing that the Secretary of State for the Home Department had failed in her Tameside duty of inquiry. Mr Justice Swift observed:

On consideration of both the open and the closed evidence, my conclusion is that the Claimants succeed on Ground 4. For the reasons given in the closed part of this judgment I am satisfied that the steps taken by the Secretary of State were not sufficient to discharge the Tameside obligation (Secretary of State for Education and Science v Tameside MBC [1977] AC 1014) to take reasonable steps with a view to ensuring the factual basis for her decision was sufficient. The principle in Tameside sets a high bar for any claimant. The obligation on a decision-maker to ensure that a decision is the product of reasonable inquiry is an aspect of rationality; it is not an obligation to make exhaustive inquiry before taking a decision; and when assessing compliance with the requirement it is not for the court to stand in the shoes of the decision-maker. A claimant relying on the Tameside principle will succeed only when the failure is both obvious and material.

Without access to the closed material judgment, it is impossible to know exactly what type of inquiry the Home Office should have made about ALO. From the history of his service for the United Kingdom and America in Afghanistan, it seems likely that the Home Office failed to make enquiries with the American military about why their concerns about ALO evaporated. If American forces trusted ALO enough to take him off their watchlist and re-employ him, then it is difficult to see why his presence in the United Kingdom would not be conducive to the public good. Now it will be for the Secretary of State for the Home Department to make the necessary inquiries and re-make the decision.