This is another successful challenge from a former Afghan judge who was unlawfully excluded from the Afghan Relocations and Assistance Policy scheme (ARAP). The case is MP1, R (On the Application Of) v Secretary of State for Defence [2024] EWHC 410 (Admin).

Background

MP1 worked as a criminal defence lawyer for an NGO in Afghanistan from 2008 and then as a judge in Helmand Province from 2015 until 2021. He presided over a range of cases including terrorism and narcotics cases. In 2020 the Taliban claimed responsibility for an attempt on MP1’s life.

MP2, who is MP1’s wife, worked as a schoolteacher until forced to give this up by the Taliban in 2021.

On 22 August 2021, during Operation Pitting, MP1 emailed the UK authorities asking for urgent assistance and evacuation. He received an automated response advising him to submit an ARAP form. With legal assistance, MP1 did this on 1 and 23 November 2023, including detailed representations and supporting evidence. MP1 also applied to the Afghan Citizens Resettlement Scheme and for leave outside the rules.

MP1’s application was refused on 30 March 2022 and that decision was reviewed twice. The second review took place after the first review was successfully challenged by way of judicial review, conceded by the Secretary of State for Defence.

The judicial review

The decision under challenge in this judicial review was the second of those review decisions, dated 4 May 2023. The decision was described by the High Court as “a pro forma letter which did not engage with the Claimant’s case in any substantive fashion”. The grounds were that the panel:

a. failed (a) to consider relevant evidence before it; and (b) to provide sufficient reasons for its decision in the light of the evidence; and so (c) rendered a decision that was unreasonable and irrational.

b. mis-construed and applied an unlawfully narrow approach to the ARAP.

In relation to the first ground, extensive expert (or ‘expert’ as he was described in a witness statement from the Assistant Head of Defence Afghan Relocations and Resettlement team Reviews in the Ministry of Defence) evidence had been provided by Tim Foxley ahead of the second review. The High Court said that they found the scepticism about him “surprising”, and made clear that he is extremely well-qualified to give expert evidence.

Mr Foxley concluded that MP1 had contributed directly to the UK mission through his work with the judiciary. Mr Foxley also said that MP1’s work “closely supported and assisted UK government activities in stabilising Afghanistan and helping to secure rule of law across the country” as well as made a material contribution to the UK’s mission in Afghanistan. In relation to his work as a lawyer, Mr Foxley said that the work of the NGO was entirely consistent with UK goals and that its work to defend human rights “would not have found favour with the Taliban”.

The second review decision made no reference to this evidence.

The High Court also found that the reasons for refusal were deficient, as the requirement that factors in favour of the applicant are properly taken into account (per R (MN) v Secretary of State for the Home Department [2021] 1 WLR 1956, [242]) was not met. The decision was also held by the court to be irrational. Ground two also succeeded.

The decision was therefore quashed and the court made a finding that conditions 1 and 2 of category 4 of the scheme were met. The defendant should now proceed to make a decision on whether conditions 3 or 4 were met and whether MP1 is eligible under ARAP.

Conclusion

The government is unhappy about all of these ARAP challenges, and will no doubt use them to restrict future resettlement programmes. However the lesson here should be that there a lot of people who should have been brought to safety at a much earlier stage but who have instead been left in extremely dangerous situations and having to bring lengthy legal proceedings in order to access safety. A more expansive and generous approach to the very limited ‘safe and legal’ routes that do exist is surely more appropriate.