The High Court has found that the Secretary of State for Defence had not given full and adequate reasons and had acted contrary to its policy when considering an application for settlement in the UK by an individual working with the British embassy in Afghanistan. R (MKA) v Secretary of State for Defence [2023] EWHC 1164 (Admin) is an Afghan Relocations and Assistance Policy (ARAP) judicial review that has succeeded, finally, even if only on a fairly modest public law basis.

The case

MKA applied under the Afghan Relocations and Assistance Policy (ARAP) for resettlement in the UK based on his contribution as a network engineer at British military camps and at the British embassy. He was not directly employed by the British army but during his time working in Afghanistan, the military camps were controlled by the army, and he had been working under their supervision.

We’ve previously covered the introduction of the ARAP scheme and its incorporation into the Immigration Rules here. Essentially, its purpose was to offer relocation or other assistance to current and former locally employed staff in Afghanistan who were in exposed, meaningful or enabling roles and assessed to be at serious risk because of their work.

MKA’s work involved providing telephone and on-site technical support and he was on call 24 hours a day, seven days a week. Occasionally, this required him to cross the city in the middle of the night for repairs. Later, he had been involved in the construction of a Wi-Fi tower between a UK and US camp. The MKA’s case was that the Taliban were in possession of documents that named him in connection with this project and questioned the purpose of the project.  

MKA was initially refused a visa under ARAP in July 2021 on the basis that he was not directly employed by the UK government and did not fall within the scope of the ARAP. Although that was the position in the original ARAP policy documents, these had been amended two months before MKA’s decision, in May 2021.

After reconsideration, the Secretary of State for Defence upheld its decision in May 2022, concluding that consideration had been given to the amended policy in place at the time of the decision and:

1. The claimant was not at high risk or imminent risk of threat to life;
2. He did not work for the UK government in an exposed meaningful enabling role that made a material difference to the delivery of the UK mission;
3. He did not work in a meaningful enabling role for the UK government in extraordinary or unconventional contexts.

But MKA argued that the policy at the time did not require direct employment. Despite significant additional material from UK military personnel confirming MKA provided assistance “of the highest value”, the Defence Afghan Relocation and Resettlement Panel (DARRP) then upheld that refusal.

It is the Panel’s decision that is challenged in this case. They had not given adequate reasons as to why MKA had not satisfied the policy. They had also failed to consider the evidence submitted to them.

The decision

In this case, the High Court recognised the DARRP was an expert decision-maker and the court should normally respect their judgment. However, it was persuaded that the Panel had departed from an appropriate standard of public law decision-making:

“In the present case there is a disconnect between the materials produced on [MKA’s] behalf to the decision-maker and the reasoning of the review decision. The reasons show material errors were made and the conclusion cannot be safely justified.”

The court acknowledged that the obligation to give reasons depended on the context of the decision. Although, the ARAP scheme was a discretion-based scheme, it did not displace a duty of procedural fairness. Coherent reasoning was required, even if brief.

The new material provided to the Panel gave further and better evidence of, amongst other things, MKA’s connection with the British forces and the importance of his work. Their reasoning was flawed because in their reconsideration they continued to apply the out-of-date May 2021 policy requiring direct employment by the UK government.

The Panel had determined that applications should not be rejected solely on the basis that there was no evidence that the individual’s role had made a material difference to the delivery of the UK mission in Afghanistan. But they went on to say “there was no evidence the [MKA] meets this criteria”, despite being shown evidence that he was on call 24/7 and claimed the Taliban were looking for those who built the Wi-Fi tower.

The Panel had wrongly concluded that the MKA’s work mainly focused on a Wi-Fi tower project when it was in fact much wider than that. That conclusion failed to take into account the evidence produced. The Panel has not taken any account of MKA’s work at the British Embassy. That was a material error.

The Court was persuaded that the decision should be reconsidered by the Secretary of State for Defence in light of the policy as properly construed at the time of the original decision and all the available evidence. This may be one of the only judicial reviews on the Afghan scheme to have succeeded (so far). However, even if on the modest public law basis that the policy was not applied properly and the relevant evidence was not considered. Other decisions more substantially related to the lawfulness of the content of the policy have so far been refused. You can read one example here.

Sometimes, we as practitioners become used to very brief (and often woefully inadequate) decisions produced by decision-makers, whether it be refusal letters, tribunal judgments etc. This case is a useful reminder that it pays to simply step back from the situation and look at the decision as a whole to see whether it is properly reasoned. The Scottish test (which is very similar to other tests applied elsewhere in the UK) is whether the decision leaves the informed reader in real and substantial doubt as to what the reasons for the decision were and what the material considerations were taken into account. It is surprising how many decisions do not conform to that basic requirement.