![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> LND1 & Ors, R (On the Application Of) v Secretary of State for the Home Department & Anor [2024] EWCA Civ 278 (21 March 2024) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2024/278.html Cite as: [2024] WLR(D) 136, [2024] EWCA Civ 278, [2024] WLR 4433, [2024] 1 WLR 4433 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Buy ICLR report: [2024] 1 WLR 4433]
[View ICLR summary: [2024] WLR(D) 136]
[Help]
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE SWIFT
Strand, London, WC2A 2LL |
||
B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE PETER JACKSON
and
LORD JUSTICE LEWIS
____________________
THE KING (on the application of) (1) ![]() (2) ![]() (3) LND 3 (4) LND4 (5) LND5 (6) LND 6 |
Respondents |
|
- and - |
||
(1) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) THE SECRETARY OF STATE FOR DEFENCE |
Appellants |
|
-and- |
||
(1) THE SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVELOPMENT AFFAIRS |
Interested Party |
____________________
Ramby de Mello and Edward Nicholson (instructed by Luke & Bridger Law Ltd) for the Respondents
Hearing dates: 22 and 23 February 2024
____________________
Crown Copyright ©
LORD JUSTICE LEWIS:
INTRODUCTION
(1) His construction and application of the ARAP Scheme, specifically by conflating Conditions 1 and 2;
(2) His finding that LND satisfied the eligibility criteria under conditions 1 and 2;
(3) His finding, in any event, that the only rational outcome was that LND's application had to be granted; and
(4) His finding that the reasons given in the pro-forma decision letter were insufficient.
THE LEGAL FRAMEWORK
The Immigration Act 1971 ("the 1971 Act")
The Policy and the Immigration Rules
The present Immigration Rules
"ARAP 3.1. To be an eligible Afghan citizen the applicant must have applied to, and received from, the Ministry of Defence a decision that the requirements under ARAP 3.2. to ARAP 3.6. are met and that ARAP 3.7. does not apply ("the ARAP eligibility decision").
ARAP 3.2. An eligible Afghan citizen is a person who:
(a) is an Afghan citizen; and
(b) is aged 18 years or over; and
(c) meets the eligibility requirements in at least one of ARAP 3.3 to ARAP 3.6; and
(d) ARAP 3.7. must not apply.
ARAP 3.3. A person meets the ARAP eligibility requirement if:
(a) they submit an application on or after 1 April 2021; and
(b) at least one of the following eligibility requirements applies:
(i) ARAP 3.4. (high and imminent risk of threat to life);
(ii) ARAP 3.5. (former employees eligible for relocation); and
(iii) ARAP 3.6. (special cases).
..
ARAP 3.6. A person meets the eligibility requirement if conditions 1 and 2 and one 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 the achievement of one or more of the following:
(i) the UK Government's military objectives with respect to 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 high 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.
ARAP 3.7. A person does not meet the ARAP eligibility requirements, if either of the following apply:
(a) the Ministry of Defence has withdrawn its eligibility decision; or
(b) the person was directly employed by, or contracted to, a UK Government department or unit and was dismissed from their job (except in circumstances where the Secretary of State considers that the person was dismissed for a minor reason)."
"ARAP 6.1. If the Home Office decision maker is satisfied that the eligibility and suitability requirements for entry clearance or settlement for an eligible Afghan citizen are met, the application will be granted, otherwise the application will be refused."
THE FACTUAL BACKGROUND
Operations in Afghanistan
LND
LND's ARAP Application
"Furthermore, I was a member of the Afghanistan Penal Code and the Anti-Narcotics Law Drafting Committee, part of which was funded by the British Embassy. I drafted chapters and materials related to terrorist crimes, suicide crimes in the penal code, and the provisions of that law were applied to a large number of Taliban and Haqqani Network, who were sentenced to death and long prison terms."
Consideration of LND's Application
Decision
"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."
The Claim for Judicial Review
The Judgment below
"19. Drawing this together, it is apparent that the question of whether the First Claimant had worked in partnership with or closely supporting or assisting a government department was considered in terms of whether the First Claimant had held office at the Terrorism Court at a time when the Foreign Commonwealth and Development Office considered itself to have been "in partnership" with that court (i.e., from 2015), or whether his name was known to anyone at the Foreign Commonwealth and Development Office or the National Crime Agency, or whether he had been in receipt of any form of payment (see the reference to the National Crime Agency's "payment schedule").
20. I do not consider this is a correct approach to the application of this part of Condition 1 in ARAP 3.6. The overall effect of the responses from the Foreign Commonwealth and Development Office and the National Crime Agency involved consideration of Condition 1 in isolation from Condition 2. ARAP 3.6 contains four conditions. An applicant must satisfy Conditions 1 and 2 and either Condition 3 or Condition 4. There is a clear distinction between Conditions 1 and 2 on the one hand, and on the other hand, Conditions 3 and 4. Put generally, the latter concern risk arising by reason of the work the applicant has undertaken, either risk to himself or risk to United Kingdom interests. Conditions 1 and 2 must be considered together, in particular when the applicant was not in either of the first two categories within Condition 1, i.e., was not employed and did not work under contract, but was (or claims to have been) in the third, partnership, close support and assistance, category. Conditions 1 and 2 are, obviously, interdependent. Condition 2 is the more important because it identifies the substantive activity that the applicant must have undertaken to meet the eligibility requirement. By contrast, Condition 1 operates as a filter by requiring that activity to have been performed either in consequence of a contractual obligation (the first and second categories) or in consequence of some other sufficiently close connection (the third category). Since the third category is not defined by reference to an objective criterion, I do not think it possible to apply it without, as part of a single exercise, also considering the nature and extent of the applicant's contribution to the relevant military or national security objectives. Put shortly, the position of such an applicant must be considered in the round; whether an applicant has "worked alongside a UK government department" cannot be reduced simply to whether he worked somewhere while it received specific support from a UK government department (with the consequence in this instance that the First Claimant's work as a judge at the Kabul Terrorism Court between 2008 and 2012 did not count, whereas doing the same work at the same court after 2015 would have counted), or whether his name can be remembered by one or more United Kingdom civil servants who worked in Afghanistan, or whether he received some form of payment from a United Kingdom government department. An approach that focusses only on matters that are in some respects peripheral, risks missing the wood for the trees. In this case the decision-maker ought also to have taken account of the substance of the work the First Claimant undertook, the nature of the institutions in which he worked, the nature of the connection between those institutions and the relevant United Kingdom government departments, and the contribution made by the work of those institutions to the United Kingdom's military and national security objectives in Afghanistan during the period the First Claimant worked in them.
21. That was not the approach taken in this case, and for that reason the Secretary of State for Defence failed properly to consider the First Claimant's application in accordance with his policy. That being so, the next issue is whether the application of Conditions 1 and 2 ought to be remitted to the Secretary of State for Defence for further consideration or whether that is unnecessary so far as concerns compliance with those Conditions because, given the First Claimant's circumstances it is clear on any proper application of this part of the scheme there would only be one legally permissible outcome.
22. It is in the nature of the application of provisions such as Conditions 1 and 2 that instances where there will be only one permissible outcome will be rare. However, I am satisfied that this is such a case. The First Claimant's case, accepted by the Secretary of State for Defence, includes evidence that he worked as a judge at the Kabul Terrorism Court between 2008 and 2012, and that between 2013 and 2016 he worked in the Directorate at the Afghanistan Supreme Court responsible for establishing the rules and procedures of the Anti-Corruption and Justice Centre. Even disregarding the further work First Claimant undertook thereafter until 2021, these matters evidence an extended period of work in leading roles, in leading Afghan institutions, the work of which was obviously central to the United Kingdom's national security objectives in Afghanistan as described in Condition 2. During the hearing submissions were made on the significance that might properly attach to one part of the First Claimant's evidence, that in 2012 he (with others) attended the British Embassy in Kabul to provide a briefing on the work of the Kabul Terrorism Court. I accept the Secretary of State for Defence's submission that little significance may attach to this event for its own sake. However, what happened on that occasion is indicative of a rather obvious point, that the work of the judges of that court directly affected and supported the United Kingdom's natural security objectives in Afghanistan. The other matters referred to in the emails, set out in paragraphs 16 18 above, and in the 9 December email do not, rationally, diminish the strength of the First Claimant's application. The fact that the Foreign Commonwealth and Development Office regarded itself as "in partnership" with the Kabul Terrorism Court from 2015 and from that time "supported" some of the judges at that court, but not before, seems somewhat arbitrary since there is no suggestion that the court's work after 2015 differed in any way from its work between 2008 and 2012. The same can be said for the point made in Miss Alleyne's email that the First Claimant did not appear on the National Crime Agency's "payment schedule". While it could be said that had the First Claimant continued to work as a judge at the Kabul Terrorism Court after 2015, or had been on the National Crime Agency's payment schedule his application would have been all the stronger for those matters, I do not consider that on a proper approach to Conditions 1 and 2 it would be rationally be open to the Secretary of State for Defence to conclude that the First Claimant did not meet Conditions 1 and 2 for those reasons alone. Ground 1 of the Claimants' challenge therefore succeeds. In these circumstances I can address the further grounds of challenge more briefly."
"26. The second matter was the sufficiency of the pro-forma letter. The Secretary of State for Defence did not dispute that an adverse eligibility decision needed to be sufficiently reasoned. However, his submission was that given the number of eligibility applications made under the ARAP scheme (some 131,000 since the scheme opened in April 2021), it was in practice impossible to provide decision letters that directly addressed the reasons relied on in support of each application. Part of the practical difficulty was the need to translate decisions into local languages (Dari Persian and Pashto). Thus, went the submission, the pro-forma letters were sufficient, even though what is said in them comes to no more than telling each applicant that his application has been considered against the ARAP conditions but did not meet them. It was further submitted that the pro-forma letter informed applicants they could request a review of the decision and that reasons given in the event of a review would also count to discharge any obligation to give reasons."
"28. The issue before Lane J does not directly arise in the present case because of the 9 December email. Whatever view is taken of the sufficiency of the pro-forma letters in general terms, in this case the pro-forma letter was supplemented by the 9 December email and, save to the extent I have explained at paragraph 25, when these two documents are read together sufficient reasons were provided.
29. Had the position been different, and if in this case the pro-forma letter had comprised the only reasons given for the eligibility decision, I would not have followed Lane J's conclusion in CX 1 . As he said, the requirements of fairness are shaped by context. In this case, I accept that the context includes the fact that from August 2021 the Secretary of State for Defence faced a very large number of eligibility applications under the ARAP scheme, many more than he could have reasonably expected to have received. I accept the problem presented by the need to translate decision letters into relevant languages. I also accept that in the assessment of what is required to meet the obligation to act fairly, due weight will attach to the consideration that the obligation should not be framed to place an intolerable or unrealistic burden on a decision-maker.
30. However, when considering the content of the obligation to act fairly so far as it concerns an obligation to provide reasons, the most important matters of context are the decision being taken and the criteria applied to take the decision. Under the ARAP scheme, the eligibility criteria are such that each decision is an assessment of information that an applicant has provided about himself: of matters such as the work he undertook, the circumstance under which the work was performed, and the consequences in terms of personal safety for the applicant of having performed that work. Decisions that turn on the assessment of matters of this sort, of an applicant's personal circumstances set against criteria that are incapable of mechanical application, ordinarily attract an obligation to give reasons so a disappointed applicant can understand why the case he has put forward has not been sufficient to meet the criteria set for a successful application. In that sort of context, reasons are an essential element of the obligation to act fairly; they allow the applicant to be satisfied his application has been considered on its merits, and to decide whether any further avenue may be open in this instance the opportunity to decide whether a review of the decision should be pursued. All this weighs heavily in favour of the conclusion that reasons should be provided. The reasons given do not need to be elaborate or lengthy, but I see significant force in the contention that in this case they do need to go further than the statements contained in the pro-forma letter, which come to no more than that the application has been weighed in the balance but has been found wanting, statements that provide nothing by way of explanation for the conclusion reached. Moreover, in the present context there is no question but that before the pro-forma letters were sent out each application was considered on its own merits. Therefore, it is only the burden of translating the reasons for the decisions that weighs against a conclusion that more specific reasons than those in the pro-forma letter should be provided. Had it been necessary for me to decide the matter, I would have concluded that reasons beyond the bare statements in the pro-forma letter should have been given. Those reasons could have been brief, but they should have provided the sense of the reason why the matters relied on in support of the application had not met the one or more of the eligibility requirements."
"C. Conclusion and disposal
35. The Claimants' claim for judicial review succeeds on Ground 1 but fails on all other grounds. The consequence of my conclusion on Ground 1 is that the First Claimant meets Conditions 1 and 2 within ARAP 3.6. It will now be for the Secretary of State for Defence to consider whether either Condition 3 or Condition 4 is met. If his decision is that either of those Conditions is met then, subject to any point arising under ARAP 3.7, the Claimants' applications for entry clearance will fall to be determined by the Home Secretary in accordance with the remaining provisions in the ARAP Appendix to the Immigration Rules."
GROUND 1 THE PROPER INTERPRETATION OF ARAP 3.6
Submissions
Discussion and Conclusion
"Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy."
GROUND 2 THE JUDGE'S FINDINGS ON CONDITIONS 1 AND 2 OF ARAP 3.6.
Submissions
Discussion
GROUND 3 THE FINDING THAT THE ONLY RATIONAL OUTCOME WAS THAT LND'S APPLICATION HAD TO BE GRANTED
Submissions
Discussion
GROUND 4 THE GIVING OF ADEQUATE REASONS
Submissions
Discussion
CONCLUSION
LORD JUSTICE PETER JACKSON
LORD JUSTICE UNDERHILL