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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> TPL1, R (On the Application Of) v Secretary of State for Defence [2025] EWHC 1729 (Admin) (08 July 2025) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/1729.html Cite as: [2025] EWHC 1729 (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 :
and
MRS JUSTICE FARBEY
____________________
THE KING on the application of TPL1 | Claimant |
|
| - and - |
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| SECRETARY OF STATE FOR DEFENCE |
Defendant |
____________________
Martin Goudie KC and Alex Jamieson as Special Advocates (instructed by the Special Advocates Support Office)
Cathryn McGahey KC, John Bethell and Anisa Kassamali (instructed by Government Legal Department) for the Defendant
Hearing dates: 21, 22 & 23 May 2025
____________________
Crown Copyright ©
Lord Justice Dingemans :
Introduction and issues
TPL1's
case is that both the scope of the Triples review and the caseworker guidance should be published to permit members of the Triples to make informed and accurate representations about why they are entitled to relocate to the UK under ARAP, particularly given the context of the ARAP decisions which could affect the life or death of members of the Triples. The Secretary of State's case is that the Triples review was carried out to put right matters that had gone wrong in the decision making, that there was no need to publish who was in scope of the review or the guidance because the review and guidance concerned the application of criteria for entry to the UK under ARAP which had already been published, and anyone receiving a negative decision would have a right of review.
Procedure and evidence
TPL1
and Ms Cathryn McGahey KC, Mr John Bethell and Ms Anisa Kassamali appeared on behalf of the Secretary of State in the open hearings. A closed hearing is held where the court has made a declaration pursuant to section 6 of the Justice and Security Act 2013 (the 2013 Act) granting permission to the Government not to disclose information relating to matters of national security otherwise than to the Court and special advocates. The relevant information is then disclosed to the special advocates and to the court in a closed hearing. Declarations had been made pursuant to the 2013 Act in the proceedings by Farbey J, when the claim was being case managed. At the closed hearing Ms McGahey and Mr Bethell appeared on behalf of the Secretary of State and Mr Martin Goudie KC and Mr Alex Jamieson appeared as special advocates to represent the interests of
TPL1.
TPL1,
the claimant, a former senior member of the Triples; Daniel Carey, a partner of Deighton Pierce Glynn, solicitors for the claimant; and Catherine Dowle, a trainee solicitor at Deighton Pierce Glynn. There were witness statements on behalf of the defendant including statements from: Natalie Moore, Director of the Defence Afghan Relocation and Resettlement (DARR) Directorate; Dan Samedi-Smith, Deputy Director Eligibility of DARR; witness X, a member of United Kingdom Special Forces (UKSF) who acted as the enrichment officer (providing expertise and knowledge to help inform caseworker considerations) for cases that were referred to UKSF between February and November 2024 as part of the Triples review; and Louise Morgan, Deputy Director of the Government Legal Department. There were other witness statements which had been made which related to procedural matters in the proceedings.
Factual background
The Triples
ARAP and the applications
TPL1,
a former senior member of the Triples.
TPL1
was relocated to the UK with his wife and children.
TPL1
has the benefit of anonymity.
TPL1
makes the claim on behalf of other members of the Triples still in Afghanistan, Pakistan and Iran. Those members include the brother of
TPL1,
who has been tortured by the Taliban.
(a) Category 1: applicants who were "employees of the UK Government in Afghanistan on or after 1 October 2001 and who, because of that employment, are assessed to be at high and imminent risk of threat to life";
(b) Category 2: applicants who were "directly employed by the UK Government in Afghanistan", provided that,
"The nature of the applicant's role must have been such that the UK's operations in Afghanistan would have been materially less efficient or materially less successful if a role of that nature had not been performed. Furthermore, the applicant's role must have exposed them to being publicly recognised as having performed that role and, as a result of that public recognition, their safety is now at risk. Examples of such roles are patrol interpreters, cultural advisors, certain embassy corporate services, and development, political and counter-terrorism jobs, among others. This is not an exhaustive list, nor are all those who worked in such roles necessarily eligible by default"
(c) Category 4: applicants offered assistance on a case-by-case basis, subject to satisfying the following "conditions":
(i) Condition 1: applicants "on or after 1 October 2001 were directly employed in Afghanistan by a UK Government department; provided goods or services in Afghanistan under contract to a UK Government department; or worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department";
and
(ii) Condition 2: "in the course of that employment or work or provision of services they made a substantive and positive contribution to the UK's military objectives or national security objectives (which includes counter-terrorism, counter-narcotics and anti-corruption objectives) with respect to Afghanistan";
and either
(iii) Condition 3: "because of that employment or work or provision of services, the person is or was at an elevated risk of targeted attacks and is or was at a high risk of death or serious injury;
or
(iv) Condition 4: "hold information the disclosure of which would give rise to or aggravate a specific threat to the UK Government or its interests".
TPL1
and his wife and children, were airlifted from Kabul in Afghanistan.
The sprints
Concerns about decision making concerning the ARAP applications made by the Triples
Problems with the decision making
TPL1,
that suggestions that a General who commanded UKSF in Afghanistan at relevant times, whose name it is not necessary to give in the judgment, was involved in the recruitment of the UKSF LO to be part of the process of determining ARAP applications, were not correct.
The Triples review
Information about the scope of the Triples review
Caseworker guidance
Further developments
These proceedings
"The case work within the initial scope of the review has been completed with an overturn rate of approx.. 30%;
Further work is taking place to analyse the payment records that MOD hold;
Top Up Pay will now be sufficient to demonstrate substantive and positive contribution to the UK's military objectives in Afghanistan; this means there will be some applicants who were not previously, but will now be included in the scope of review;
Further details on Phase Two of the Review are available in the Terms of Reference, to be published online in the coming days alongside the ARAP criteria;
Further documents will be published relating to Phase One of the Review;
All those who have had their application reviewed in Phase One will be contacted in due course; for Phase Two those will be contacted on a rolling basis once decisions are made.
All decisions made in Phases One and Two will have a right to have this decision reviewed."
The resolution of some issues
TPL1
to bring this claim on behalf of other members of the Triples. In the final event the issue of standing was not pursued and it is not necessary to say anything more about the issue of standing in this judgment.
Relevant provisions of law
Whether the Secretary of State unlawfully failed to publish the criteria for determining whether an application falls within the scope of the Triples Review – issue one
Whether the Secretary of State unlawfully failed to publish the criteria for determining what factors will be considered in individual review decisions, which was the caseworker guidance – issue two
The duty of candour
TPL1 to bring the claim and in the light of that point denied that there was a requirement to provide disclosure in circumstances where the point on standing was unlikely to succeed and was in the event abandoned. It is also proper to record that clarifications were provided about details of the ARAP decision making and an apology was made in later witness statements filed on behalf of the Secretary of State. There was also an agreement (about which Farbey J was informed earlier in the proceedings) to respond in full to a request for information, when it was later contended in the answer that was given that it was not necessary to provide the information. It is clear that if that was the submission to be made about the request for information, the issue should have been raised before Farbey J.
Conclusion
Mrs Justice Farbey