In the latest case challenging a decision made under the Afghan Relocation and Assistance Policy, the High Court has quashed the refusal decision on the basis that it was not supported by the evidence that had been provided in support of the application. The case is R (MA) v Secretary of State for Foreign, Commonwealth and Development Affairs & Anor [2024] EWHC 332 (Admin).

Background

The claimant was a Supreme Court judge in Afghanistan before he left in 1996 as a result of being targeted by the Taliban. He returned in 2001 after the United States led invasion and was re-appointed to the Supreme Court. In 2002 he was also the acting Head of the Public Security and Dangerous Drugs Court for six months.

After leaving the Supreme Court he had a leading role in drafting the new Afghan constitution and in devising a new penal code. From 2006 to 2021 he was the Head of Legal Reform at the Afghan Ministry of Justice. Legal reform was one of the objectives specified in the Afghan Compact, to which the UK was a signatory. The claimant was also the legal advisor to the Anti-Corruption Monitoring and Evaluation Committee from 2016. He also provided training to other judges on the new penal code.

The decision under challenge

The claimant challenged two decisions by the Secretary of State for Defence dated 24 October 2022 and 30 January 2023 to refuse him assistance under the Afghan Relocation and Assistance Policy (“ARAP”). At the date of the refusals, the ARAP provisions were at paragraphs 276BA1 to 276BS5 of the immigration rules (now in Appendix ARAP).

A person would meet the eligibility requirements under the scheme if they met conditions 1 and 2 and then one or both of conditions 3 and 4. The claimant’s application was refused on the basis that he did not meet conditions 1 and 2.

The relevant conditions are:

The team leader who initially assessed the claimant’s application considered that his work as a sub-contractor in support of the Security and Justice Programme Afghanistan may satisfy condition 1(b). However it was concluded that this work did not also meet condition 2(b). It was accepted that his “overall contribution was undoubtedly in line with the UK’s overall objectives in Afghanistan”, but without that being linked to the work relied on to meet condition 1(b), condition 2(b) was not satisfied.

On condition 1(c), the decision maker concluded that this was not satisfied because the claimant’s roles did not involve working alongside, or in partnership or closely supporting a UK government department.

That assessment was then considered by a panel who were unable to reach agreement. The case was then referred to a more senior panel who refused it. The claimant was deemed not to meet condition 2(b) as they did not consider that the work the claimant had carried out as a sub-contractor made a “material and substantive contribution to the UK’s national security objectives”.

The claimant applied for review and the reconsideration panel rejected the application again for the same reasons.

The judicial review

The application for judicial review was made on the basis that the decision to refuse the claimant’s application was based on an incorrect understanding of condition 1(c) and that relevant evidence had been left out of consideration of condition 2(b) and/or the decision was not reasonably available to the decision maker given the evidence provided with the application.

In setting out its approach to the case, the court drew a distinction between criteria such as conditions 1(a) and (b) which involve well-established legal concepts around contracts, the court will allow little latitude to decision makers in deciding whether such arrangements exist, as they are a matter of law.

The court distinguished other criteria from this, including conditions 1(c) and 2(b) which are not drafted with reference to a distinct legal concept, and so when reviewing a decision the court will give “appropriate weight to the decision-maker’s view both on the overall conclusion on whether the condition is met, and on matters such as whether or not relevant matters were considered and irrelevant ones disregarded”.

On the point about whether condition 2(b) was met, the court was satisfied that the decision on the substantive and positive contribution requirement was based on a misunderstanding of the evidence submitted by the claimant with his application. It appears that the panel considered that the claimant had only provided judicial training for 11 days over a period from February to September 2018, based on the claimant’s ability to provide only some of the timesheets as evidence of his work.

Other evidence provided had demonstrated the importance not just of the training itself, but the claimant’s role in it, one witness statement describing his “prestige” as being key to its success. The court concluded that the panel’s decision was demonstrably wrong and Wednesbury unreasonable, describing the mis-match between the evidence provided and the decision reached as “stark”.  

On the condition 1(c) point, the court referred to its judgment in R(LND1) v Secretary of State for the Home Department [2023] EWHC 1795 (Admin) and said that “the proper approach to condition 1c of the ARAP policy requires consideration of all circumstances in which the work relied on came to be and was undertaken”.

That had not been done in the claimant’s case, as the context in which the work had been done was either not considered or was wrongly disregarded. The court said that once the relevant circumstances were considered the only possible outcome was that the claimant met condition 1(c) in respect of his work as chairman of the Criminal Law Reform Working Group and as legal advisor to the Anti-Corruption Monitoring and Evaluation Committee.

Conclusion

The judicial review was allowed, the court concluding that the claimant did meet both conditions 1 and 2 of the applicable rules. The refusal decisions were quashed and the application sent back to the Secretary of State for Defence to determine whether either of conditions 3 and 4 are met.

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