The Home Secretary was entitled to refuse entry clearance to an Afghan interpreter accused of releasing sensitive information and threatening to kill coalition forces. That was the conclusion of the High Court in FMA and others v Secretary of State for the Home Department [2023] EWHC 1579 (Admin), the latest judicial review concerning the Afghan Relocations and Assistance Policy (‘ARAP’).

Background

The main claimant, FMA, worked in Afghanistan as an interpreter for British and United States forces. It was recognised that he was at serious risk from the Taliban as a result. He was therefore eligible for resettlement in the UK under ARAP. He applied for entry clearance, with his wife and children as his dependants.

FMA’s application was refused in August 2021 under paragraph 9.3.1 of the Immigration Rules. This states:

An application for entry clearance, permission to enter or permission to stay must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds).

FMA’s wife and children were refused in line with him. This first refusal gave no reasons for the conclusion that paragraph 9.3.1 applied. After FMA challenged it, that refusal was withdrawn. It was replaced with a new one in March 2022.

This second refusal said that paragraph 9.3.1 applied because there was evidence that FMA had ‘released sensitive information and threatened to kill coalition forces when this was discovered’. FMA denied this allegation. He and his family applied for judicial review.

The case was heard under the closed material procedure. This means that the Home Secretary was relying on intelligence material that could damage national security if disclosed. FMA and his lawyers were not allowed to see this material, but it was considered by the judge, Mr Justice Swift, in private (or ‘closed’) hearings. FMA’s interests at those hearings were protected by special advocates appointed by the court. His argument that the absence of disclosure breached his right to a fair trial under Article 6 of the European Convention on Human Rights was rejected.

The judgment

FMA argued that the refusal of entry clearance was unlawful. He relied on the Home Secretary’s policy on paragraph 9.3.1. Firstly, he referred to the requirement for decision makers to ‘balance factors in the individual’s favour against negative factors’ before refusing on the basis of conduct, character, or associations. FMA argued that one factor in his favour was the risk that he faced if refused a visa and forced to stay in Afghanistan. Swift J disagreed. The more natural reading of the policy, he said, was that ‘factors in the individual’s favour’ were factors suggesting that the ‘not conducive to the public good’ threshold wasn’t met. In any event, documents disclosed by the Home Secretary showed that the risk to FMA actually had been considered.

FMA’s second argument based on the policy was that there was no evidence he’d done anything serious enough to come within it. The policy required consideration of the nature, seriousness, and frequency of the behaviour, the difficulties that admitting the person to the UK could cause, and ‘other relevant circumstances pertaining to the individual’. It goes on to list examples of situations where the threshold of ‘not conducive to the public good’ might be met. FMA argued that it simply wasn’t possible on the evidence available to conclude that this high threshold applied to him.

FMA’s argument on this point was somewhat hampered by his inability to see the evidence the Home Secretary relied on. He gave witness statements denying deliberate disclosure of sensitive information and describing occasions where his innocent behaviour might have been misinterpreted. However, Swift J said that, based on the ‘closed’ material, the Home Secretary was entitled to conclude that the policy’s high threshold was met. The judge was also satisfied that the Home Secretary had complied with her legal obligation to take reasonable steps to acquaint herself with the relevant information before making the decision (the ‘Tameside duty’).

Separately, FMA submitted that before issuing the second, reconsidered, refusal, the Home Secretary should have looked into the possibility of a generic flaw in the ARAP decision-making process. This was because a number of other decisions made around the same time as FMA’s first refusal had ended up being withdrawn in the face of legal challenge. FMA argued that this showed a general problem that needed to be investigated.

Swift J effectively said this was irrelevant. FMA’s application had to be decided on its own terms, without reference to other people’s cases. That was what the Home Secretary had done.

FMA and his family therefore lost their judicial review claims on all grounds.

Comment

When someone is refused a visa but denied access to the evidence against them, it is hard to escape the feeling that they have been treated unfairly. Many will have sympathy for FMA, who had been commended for his courage assisting British forces, and who everyone agrees is now at risk in Afghanistan. That risk may well extend to his wife and children, who are entirely innocent of any wrongdoing.

Without seeing the closed judgment, it is impossible to know how strong the evidence against FMA was. It is worth noting, though, that the courts do not always endorse national security refusals. For example, in R (on the application of ALO) v Secretary of State for the Home Department [2022] EWHC 2380 (Admin), another ARAP case, Swift J granted judicial review due to breach of the Tameside duty of inquiry.

That said, the courts place great weight on the Home Secretary’s assessment of threats to national security. If the serious allegations against FMA were indeed supported by the evidence, the outcome of his case is unsurprising.

Interestingly, Swift J added a postscript criticising the Home Secretary’s approach to disclosure in this case. She had provided documents relevant to her decision-making but removed the names of the civil servants who wrote them. This was supposedly on the ground of ‘relevance’. Swift J was clear that ‘[t]hese redactions should not have been made’, as they made documents harder to understand and the names were not actually irrelevant. If a party wishes to remove such details, he said, they must apply to the court for permission.

As Swift J rightly noted, such redaction has become common, and it often obscures a document’s significance. Hopefully the Home Secretary will change her approach in light of his comments.

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