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High Court quashes decision to refuse leave to Afghan journalists

The High Court has quashed decisions refusing leave to two journalists under the Afghan Relocations and Assistance Policy, known as ARAP.

ARAP governs the circumstances in which the UK will grant leave to relocate to the UK to people who are at risk because they worked for or alongside UK government departments in Afghanistan between 2001 and 2021. 

The decision makers erred by asking whether the “goal” of the journalists’ work was to further UK national security objectives. The correct question was whether their work had contributed to those objectives.

This is the conclusion of Lord Justice Dingemans and Mr Justice Johnson in R (on the application of CX1 & Others) v Secretary of State for Defence and Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 94 (Admin).

Background

The decision is the latest in a series of judicial reviews by Afghan journalists who worked for or alongside the BBC in Afghanistan and have experienced delays and refusals in their ARAP applications.

ARAP sets out four categories eligible for assistance. The journalists applied under category 4, which is for those who are at risk because they have been employed by the UK government “in meaningful enabling roles.”

To come under category 4, the relevant immigration rules set out four conditions. The journalists had to meet condition 1 and condition 2, plus one or both of condition 3 or condition 4. At issue in this case were the first two conditions and their applicability to the claimants:

(i) Condition 1 is that at any time on or after 1 October 2001, the person:

(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 …

Four journalists challenged their refusals. Two were accepted to meet condition 1(b) because they worked on radio programmes that were funded directly by the UK Department for International Development. The other two could not meet condition 1(b).

The judgment

All four of the journalists argued that the decision makers had failed correctly to apply the policy in relation to condition 1(c). The judges rejected this ground on the basis that when the journalists made their applications into ARAP none of them had set out sufficient details of their work, of which UK government department they were “working alongside,” and of why the work was arguably “in partnership with or closely supporting and assisting” that department.

The judges agreed that it might be possible for a journalist to meet condition 1(c). However, they would need to specify how they met the requirements, rather than making generalised assertions, such as that their work assisted in holding politicians to account. As there was no arguable error when the decision makers applied condition 1(c), the claims of the two journalists who did not also meet condition 1(b) were dismissed at this point.

The remaining two journalists argued that when the decision makers considered condition 2 they had got the test wrong by asking whether the “goal” of the journalism was to further UK national security objectives. All that was required under ARAP was for the work to contribute to those objectives. The judges agreed with this ground and quashed the decisions.

A third issue concerned condition 2 and the content of the UK’s military or national security objectives in Afghanistan. Lawyers for the journalists argued that these objectives were drawn widely, including concepts such as ‘winning hearts and minds”, to which the journalists’ work on radio shows addressing societal and political issues contributed.

Lawyers for the defendant government departments argued that these objectives should be construed much more narrowly. The judges found, perhaps with some relief, that they did not have to decide this issue, given that they were going to quash the decisions due to other errors on condition 2 anyway.

Comment

These challenges flag up the difficulties of defining “military and national security objectives” for the purposes of ARAP, especially because UK military involvement in Afghanistan from 2001 was expressly linked by the then-Blair government to international development policy goals.  The judges noted that there is no guidance on what these concepts entail, and that “the provision of clear objectives might also assist the caseworkers to determine fairly the relevant applications.” More litigation on these points can be expected.

The four journalists remain in hiding. A fifth who was initially part of this challenge was accepted for relocation to Canada during the litigation and withdrew from the case.

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Keelin McCarthy

Keelin McCarthy

Keelin is a barrister at One Pump Court. She has a broad practice in all areas of immigration, asylum and nationality law, as well as related public law.

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