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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> LND1 & Ors v Secretary of State for the Home Department & Anor [2023] EWHC 1795 (Admin) (14 July 2023) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2023/1795.html Cite as: [2023] Imm AR 1584, [2023] EWHC 1795 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
LND1 and others |
Claimants |
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- and |
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(1) Secretary of State for the Home Department (2) Secretary of State for Defence |
Defendants |
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and |
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Secretary of State for the Foreign, Commonwealth and Development Affairs |
Interested party |
____________________
Sian Reeves (instructed by Government Legal Department) for the Defendants
Secretary of State for the Foreign, Commonwealth and Development Affairs did not appear and was not represented
Hearing dates: 29 and 30 March 2023
____________________
Crown Copyright ©
MR JUSTICE SWIFT
A. Introduction
(1) The ARAP eligibility requirements
"ARAP 3.6 A person meets the eligibility requirement if conditions 1 and 2 and 1 or both of conditions 3 and 4 applies:
(a) Condition 1 is that at any time on or after 1 October 2001, the person:
(i) was directly employed in Afghanistan by a UK Government department; or
(ii) 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
(iii) worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department.
(b) Condition 2 is that the person, in the course of the employment or work or the provision of those services under Condition 1, made a substantive and positive contribution towards one or more of the following:
(i) the UK Government's military objectives with respect Afghanistan; or
(ii) the UK Government's national security objectives with respect to Afghanistan (and for these purposes, the UK Government's national security objectives include counter-terrorism, counter-narcotics and anti-corruption objectives).
(c) Condition 3 is that because of the person's employment or work or those services under Condition 1, the person:
(i) is or was at an elevated risk of targeted attacks; and
(ii) is or was at serious risk of death or serious injury.
(d) Condition 4 is that the person holds information, the disclosure of which would give rise to or aggravate a specific threat to a UK Government department or its interests."
(2) The decision on eligibility
"5. From the information you have provided you are not eligible under Category 4 of the ARAP scheme because you do not meet the following criteria:
- You were directly employed in Afghanistan by the UK Government, or provided goods or services under contract to the UK Government, or worked in Afghanistan alongside a UK Government Department, in partnership with or closely supporting it;
6. You therefore do not meet the necessary criteria for Category 4 of ARAP scheme."
These paragraphs addressed only Condition 1 in ARAP 3.6. Conditions 2, 3 and 4, were not considered.
"6. Whilst the applicant has set out their judicial role(s) they were not able to demonstrate that they worked alongside, in partnership or closely supporting and assisting a UK Government Department. Analysis of records and other assessments did not show the applicant was affiliated or known to a UK Government Department.
7. The applicant's asserted counter terrorism work pre-dates the FCDO's partnership with the Kabul counter-terrorism courts in 2015. The FCDO does not have records of having worked alongside the applicant at those courts. There is no evidence that the applicant's asserted work on the penal code was conducted in partnership with or alongside, or closely supporting the FCDO.
8. The applicant states that his role was as Director General of Investigation and Research at the Supreme Court (2016 2021) and that he was actively involved in the work of the Counter Narcotics Justice Centre (CNJC) 2019 2021 although the NCA did work closely with the CNJC, in the event that the applicant carried out this role, he was not directly employed by or contracted to the NCA. Neither was he said to have worked alongside in partnership with or closely supported and assisted the NCA in delivering its counter-narcotics mission in Afghanistan. The UK did provide general funding to the Counter Narcotics Justice Centre (as we also did with Kabul Counter Terrorism Courts) but that does not equate to a CAT 4 eligibility for individuals who worked there. In both instances there was a strong relationship built with key individuals.
9. Providing a brief at the British Embassy Kabul does not indicate the applicant worked alongside, in partnership or closely supported and assisted HMG.
10. In conclusion, there was insufficient evidence in the applicant's submission to indicate they had worked alongside, in partnership or closely supported and assisted the MOD, FCDO, NCA or any other UK Department or Unit."
This document ("the 9 December email"), like the pro-forma decision letter, only considered ARAP 3.6, Condition 1.
B. Decision
(1) Ground 1. The eligibility decision was "wrong and irrational".
"I've taken a good look through the material on both applications. In summary, I do not believe they are cases that should be properly referred to the FCDO I think they are more appropriately considered by NCA Neither applicant demonstrates in the material provided that they engaged with (other than in a quite cursory way), built any kind of partnership, or provided close support or assistance to the FCDO (or predecessor departments). They assert that they are entitled to ARAP as a result of their wider contribution to the rule of law, and specifically that their work in, or in support of, counter-terrorism and counter narcotics courts was broadly in line with UK and coalition objectives in Afghanistan
In respect of their work at counter-terrorism courts, we know that the FCO's partnership with the Kabul counter-terrorism courts began in 2015 and that we are aware of the judges we supported through that partnership. The work of both applicants at those courts pre-dates 2015 hence they are not able to describe any kind of partnership with the FCO. As both applicants state that they tried detainees captured by coalition forces the MOD might wish to consider any relationship they had with the applicants, though noting that none appears evident in the supporting documentation.
Their work on work on counter-narcotics appears to post-date the FCO passing HMG leadership of counter narcotics issues to the NCA (2011/2) [The First Claimant] asserts that his role as director general of investigation and search at the supreme court (2016 to 2021) supported the work of the UK part-funded Counter Narcotics Justice Centre. In any event, any claim to eligibility because of that counter narcotics work should properly be considered by the NCA."
"I have reviewed the documents on both applications for [another applicant] and [the First Claimant] and the NCA will not support these applicants for ARAP Cat 4. We can find no trace of these individuals working alongside or in partnership with the NCA in Afghanistan therefore we are unable to support that they would have made a substantive and positive contribution towards the achievements of the UK's government national security objectives with respect to Afghanistan. Neither applicant has provided any evidence to support they engaged with the NCA we appreciate that the [First Claimant] has provided a photo of [a CNJC] judge but this is not sufficient to prove he built a partnership or a closely supported the NCA.
[The First Claimant] states that his role was as Director General of Investigation and Research at the Supreme Court (2016 to 2021) and he supported the work of the UK part-funded Counter Narcotics Justice Centre; this applicant does not appear on our payment schedule and therefore we have no record of his affiliated to the NCA in this role."
"I have absolutely no knowledge of working with him while deployed. I never had any direct dealings with judges from the Supreme Court, I am not aware of any involvement NCA had directly with the Supreme Court.
The NCA had limited direct involvement with the ACJC, we had significant concerns related to the corruption amongst staff, especially prosecutors, that took place at ACJC.
I can say that I believe that my name and email address has been circulated on social media amongst Afghans seeking a ARAP and as such I have had a large number of contacts from Afghans claiming to have worked at CNJC or supporting the NCA to which I have no knowledge of.
I'd suggest that the ex-chief prosecutor at CNJC would have a better knowledge of any Supreme Court Judges involvement at CNJC."
(2) Ground 2. The Secretary of State for Defence imposed an "excessive evidential burden" on the First Claimant.
(3) Ground 3. Failure to give reasons.
"65. Since the duty to give reasons arises from the duty of fairness at common law, what fairness demands will inevitably be fact and context-specific.
67. Over 128,000 applications for ARAP have been received since the scheme opened in April 2021. This greatly exceeds the number of individuals estimated as even potentially eligible for it. That estimate was 16,500, prior to Operation Pitting, comprising both principals and dependants. Ms Pester says that, were the first defendant required to provide bespoke decision letters that includes detailed reasoning for every single case, this would inhibit how quickly eligibility decisions can be made. It would also divert resource from supporting the relocation of eligible applicants, besides having high costs.
69. Ms Pester says that ARAP caseworkers prepare decision letters by adapting template documents. If a person is determined to be ineligible, standardised wording is employed to identify the eligibility criteria to which the applicant is subject, specifying which criteria have been met, and which have not, on the first defendant's assessment of the evidence provided by the applicant. For category 4 applicants, there are three different variations of decision letter that unsuccessful individuals may receive, depending on which category 4 criteria the applicant has or has not met.
70. A further issue concerns the translation of the decisions. The template decision letters are translated by humans, as opposed to computer software, in order to allow for greater accuracy. The first defendant considers that human translation is important to ensure that it is fair and accessible to ARAP applicants. If every applicant deemed ineligible for ARAP received a bespoke and detailed decision letter, this would have to be translated on an individual basis. That would either rapidly overwhelm the first defendant's translation capacity, adding delay to the issuing of decisions, or else significantly increased translation costs (as well as the time taken to translate).
71. Overall, as Ms Pester says, the use of template letters allows applicants to understand the basis of the first defendant's eligibility decision, whilst supporting the provision of a fair, accessible and consistent service, which is, in all the circumstances, proportionate.
72. Taken as a whole, Ms Pester's evidence firmly demonstrates, in my view, that the first defendant's approach to the giving of reasons in decision letters concerning eligibility under ARAP is compatible with the common law duty of fairness."
(4) The eligibility decision should have been made by Home Secretary, not the Secretary of State for Defence.
" shall from time to time lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter "
There is nothing in that provision that prevents the Home Secretary adopting a policy of considering applications for leave to enter the United Kingdom made by a class of persons identified by another Secretary of State who has himself applied criteria contained within the Immigration Rules to identify who are the members of that class.
C. Conclusion and disposal