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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> ACG, R (On the Application Of) v Secretary of State for Defence [2025] EWHC 2472 (Admin) (01 October 2025) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/2472.html Cite as: [2025] EWHC 2472 (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 :
____________________
| THE KING (ON THE APPLICATION OF) ACG | Claimant |
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| - and – |
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| SECRETARY OF STATE FOR DEFENCE |
Defendant |
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| - and – |
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(1) BRS; (2) ACG1; (3) ACG2; (4) ACG3; (5) ACG4; (6) ACG5; (7) ACG6; (8) ACG7 |
Interested Parties |
____________________
Lord Murray of Blidworth (instructed by the Government Legal Department) for the defendant
Hearing date: 14 August 2025
____________________
Crown Copyright ©
Sir Peter Lane :
ARAP CATEGORY 4
THE DEFENDANT'S DECISION
"You claim to have worked in Afghanistan alongside a UK government department (the UK Armed Forces), in partnership with or closely supporting it and received money from British Officials but have not provided any evidence in support of these claims. You have also claimed that you had a relationship with individuals at the British Embassy, Kabul and the Counter-Terrorist Team but have not provided evidence in support of this. In assessing your case, the relevant government department found no record of you, including no evidence of payment schedules or any such partnership in any event.
Further, your claims of receiving training and equipment from UK government officials and military personnel does not, to the satisfaction of the decision maker, constitute working in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department. Therefore, you do not satisfy Condition 1.
Conditions 2, 3 and 4 cannot be met where there is no evidence Condition 1 has been satisfied. Therefore, you are not eligible under this category."
"A small number of judges who worked at the Anti-Terrorism Courts in Kabul have been found eligible for ARAP due to their roles presiding over certain trials between 2020 and 2021. These individuals were known to the FCDO CT team and were offered resettlement under ARAP on that basis. It is unlikely that someone working in this court who was not known to the FCDO CT Team could be considered to have been working alongside the FCDO in partnership or closely supporting the FCDO. However, whether an applicant meets condition 1c depends on an assessment of their specific role."
"Any claim that the Applicant's work as Judge was carried out alongside and/or in partnership with and/or closely supporting and assisting a UK Government department does not go beyond mere assertions which do not expressly detail the nature of any such support. The assertion that the Applicant tried cases where criminals had been arrested by the 'Armed Forces' is unsubstantiated and there is no supporting evidence or any arrest reports that provide corroborating detail as to which of the coalition forces did the alleged arresting. Whilst the UK had a presence in that area, it does not automatically qualify UK military forces as being the engaging party in these arrests. As there is no corroborating evidence seen, the claim is without merit and in any event the link would be a somewhat tenuous one as it is expected that all arrests, by any mandated organisation, unit or military force, would end up in court but this does not explicitly or exclusively constitute a UK military relationship.
In mentioning those individuals/officials with whom the Applicant alleges that he worked in partnership with or was closely supporting and assisting, the evidence shows that the association was an uncertain one where those individuals specified were only a signatory on a course completion certificate or a non-specific non-personal response to a general e-mail inquiry made by the Applicant to the British Embassy. Furthermore, the e-mail in question did not address anyone in particular in the main body of the e-mail, nor did it personally address anyone by way of salutation. In seeking an enrichment to this assessment, a re-referral was made to the FCDO. In consideration of a re-referral to the NCA, no new evidence has been provided and it was noted that the NCA had previously been unable to trace the Applicant based on the evidence provided.
Those assertions of working with the UK government and armed forces, along with receiving money from British officials, are unsubstantiated with no corroborating evidence and this directly contradicts (sic) the negative response from the Applicant when he states "No, I did not have a direct relationship with the British government and its armed forces'. It is accepted that the Applicant may well have come into contact with British Officials or personnel from the 'Ministry of Foreign Affairs' during his employment, but this would more likely than not, have been courtesy visits or invites by way of an extension to diplomatic relationship building.
It is the Applicant's assertion that he received equipment and security training from UK government officials and military personnel whilst in the Anti-Terrorism court. It is noted that this equipment is office hardware and not military assets. The Applicant further asserts that he received security training on how to dismantle unexploded bombs by members of UK military-controlled camps.
It is considered that whilst the Applicant may have received some advice on security planning pertaining to his role and the threat to judges at that time, this does not constitute specialist training which would align him to any operational UK activities, nor does it seem credible to the satisfaction of the caseworker that a Supreme Court Judge would be required to dismantle unexploded. bombs in the course of his judicial role or daily activities. Without any documents or completion certificates to attest to such training, the assumption is that he may well have received, from unspecified coalition forces, some general advice as to the possibility of being targeted with Improvised Explosive Devices. It is not envisaged that there would be any requirement for a judge to dismantle an explosive device; the dismantling of unexploded bombs is a specialist function carried out by highly skilled professionals and there is no scenario foreseen that would require a civilian Judge to undertake such a highly dangerous task. The FCDO confirmed that they did not provide any such training to judges either.
The witness statement of [NAR], who states that the applicant worked with the British Government, is uncorroborated and does not support this claim.
In seeking an enrichment from the FCDO, a response was received which stated that it was unlikely that someone working in the Anti-Terrorism Courts in Kabul, who was not known to the FCDO Counter Terrorism team, could be considered to have been working alongside, in partnership with or closely supporting and assisting that UK Government department.
The Applicant admits to not having a relationship with the UK government and alludes to a general link to the British Embassy, Kabul (BEK). The Counter-Terrorism (CT) Team records show that the Applicant was not known to them. It was further confirmed that the BEK CT team would have had no reason to work with the Applicant during the period of time specified for his employment there.
Gemma Paolucci, whom the Applicant refers to in his witness statement, confirms that she did not join the CT Team until 2018, some two years post the Applicant's employment at the Kabul Anti-Terrorism court (up to April 2016). Discussions with Gemma Paolucci confirmed that it was plausible that her name was well known to members of the judiciary and her contact details could well have been shared amongst them.
The assertion that the Applicant received some funds from the UK government is without any evidence in support. Searches of internal records for payments made to the Applicant resulted in a negative outcome.
The FCDO concluded that there was insufficient evidence to support the claim of the Applicant working in partnership with or closely supporting and assisting that UK government department in relation to his work in the Anti Terrorism Court in Kabul.
In respect of those course (sic) attended by the Applicant, it is recognised that the UK and other international partners funded certain courses for judges and prosecutors but it was the Kabul Appeal Court who was responsible for allocating judges to attend these training courses and not any part of the FCDO or the British Embassy."
POST-DECISION MATTERS
"... In relation to your request for details of individuals who were also judges in the Anti-Terrorism Court in Kabul, our client clearly cannot disclose confidential details in relation to other ARAP applicants. However, a similar request was made in the matter of R (otao JZ) v SSD, SSFCDA and SSHD [2022] EWHC 1708 (Admin), in relation to which the court ordered some limited disclosure to enable comparison of the claimant's case with other 'judges' cases. We set out below relevant extracts of the disclosure provided in that case, which was deemed sufficient to provide comparative evidence in that case:
"With respect to the judges relocated to the UK under ARAP other than Judge W, what level/branch/division of Court within the Afghan judicial system did these Judges work in?
Of the 13 judges relocated to the UK under ARAP prior to 4 February 2022:
(i) 1 judge served on the Counter Narcotics Justice Centre (CNJC) Appeal Court and was sponsored for resettlement under ARAP category 4. The CNJC evolved from the Criminal Justice Task Force (CJTF), which was established in 2005 with the support of HMG, to investigate and prosecute those involved in serious drug related offences within Afghanistan.
(ii) 11 judges (including Judge W), were counter terrorism judges sponsored for resettlement under ARAP category 4 and worked in Kabul in either the anti-terrorism primary or appeal tribunals. These courts were also known as the courts for internal and external security.
(iii) The position of the remaining judge is addressed under question 4 below.
Where, geographically, did they serve?
As above.
The UK's support to counter terrorism courts was limited to Kabul and decisions on eligibility were made based on the applicants' work there, with those courts the UK supported. The CNJC Appeal Court was located in, and limited to, Kabul.
If any of them served in the Anti-Terrorism Court in Kabul, when was their service?
The 11 judges that were approved for ARAP in summer 2021, due to their role in presiding over terrorism trials were serving in the Anti-Terrorism Courts in Kabul between 2020 and 2021. Since the GLD letter of 4 February 2022, which disclosed these 11 judges (including Judge W), a small number of other judges have been granted resettlement to the UK under ARAP category 4. All judges who were approved for ARAP by FCDO's Counter Terrorism team served in the Anti-Terrorism Court in Kabul from 2015 onwards.
With respect to the above group please describe in brief terms what evidence there was that each judge "worked alongside" HMG.
From 2015 onwards, HMG developed a partnership with some judges serving in the Anti-Terrorism Court in Kabul. All 11 judges that were resettled due to their role in presiding over terrorism trials were involved in this partnership, although the full circumstances of this partnership may not have been known to the judges involved. They were invited to attend a series of events run by HMG (colloquia to discuss matters of continuous professional development and debate interpretation on points of law and some of the technical aspects of considering different forms of evidence in complex trials), and, at times, HMG officials attended hearings they presided over, where the cases were of interest to the UK.
Key staff within the CNJC were mentored by the NCA. NCA mentored Investigators, Prosecutors and Judges in the CNJC who were directly responsible for prosecuting specific cases based on evidence from the Counter Narcotics Police of Afghanistan (CNPA)."..."
"5. HMG began providing assistance to the Anti-Terrorism Court of Kabul, also known as the "Courts for Internal and External Security", after the introduction of Annex 1 to the Criminal Procedural Code in September 2015; however relationships with judges were limited prior to the appointment in May 2018 of the Criminal Justice Advisor to the British Embassy Kabul (BEK) Counter Terrorism team. In investigating the nature of the links between HMG and the Court, the FCDO assessor contacted a number of former members of the BEK Counter Terrorism team, who had knowledge of the Court and the role of the Criminal Justice Advisor.
6. Between 2015 and 2021, HMG supported the Court with IT programmes and equipment and other office supplies to aid its day-to-day running. It also developed substantial links with a small number of specific partner judges through the Counter Terrorism team in particular from 2018 onwards. These judges were invited to attend events run by HMG (for example colloquia to discuss matters of continuous professional development, interpretation of points of law and some of the technical aspects of considering different forms of evidence in complex trials), and, at times, HMG officials attended hearings they presided over, where the cases were of interest to the UK.
7. A small number of judges from this Court have been offered resettlement under ARAP. 11 individuals approved for ARAP in Summer 2021 tried cases in 2020 and 2021, and all of the approved judges served in the Court from 2015 onwards. Judge N, who provided a witness statement in this case, was one of those individuals."
"12. The assessment does not reject Judge N's evidence that he worked alongside the Claimant between 2011 and 2016.
13. Rather, the assessment makes the pertinent distinction between the individuals that led to differing eligibility assessments. Namely, that Judge N continued to work in the Court until 2021 (and for several years after the FCDO started working with the Court in September 2015 and, pertinently, after May 2018 when the BEK Criminal Justice Advisor was appointed), was known to the BEK Counter Terrorism Team, and was one of the specific partner judges with whom the FCDO had a relationship."
"14. As established, HMG had institutional links with the Anti-Terrorism Court from September 2015. The Claimant served at this Court from 2011 until April 2016. His tenure therefore overlapped HMG's involvement by approximately 6-7 months, and pre-dated the period from May 2018 when the Criminal Justice Advisor was appointed and HMG became closely involved with specific partner judges. The Claimant has provided an abridged list of cases over which he presided during his tenure on the Court. The last date (05/05/1394, translated as 27/07/2015) precedes HMG's involvement with the Court by more than a month, and does not therefore indicate any link with HMG. Further, the evidence provided of attending UK-linked training courses covers only the years 2007- 2014 - this also pre-dates HMG's involvement with the Court.
15. In carrying out its assessment, the FCDO thoroughly considered all evidence provided by the applicant and carried out checks on our own systems, including consulting members of the former BEK Counter Terrorism Team. FCDO records and additional checks indicate the claimant was not known to the FCDO.
16. The FCDO caseworker considered the evidence provided by the Claimant that he attended training courses for Continuing Professional Development. When assessing evidence around training courses, caseworkers consider whether these constituted "working alongside" the FCDO or whether the applicant instead is a participant or beneficiary of those training or other courses. HMG regularly facilitates training and other courses for participants from NGOs, governments, universities and other organisations, in many countries globally and in the UK. None of these many participants would be considered to "work alongside" the FCDO simply by virtue of attending a course run by the FCDO. Where training courses may be relevant to an ARAP assessment of "working alongside a UK Government department, in partnership with or closely supporting or assisting that department" may be in circumstances where the applicant worked on the preparation and/or delivery of those training courses alongside the FCDO or its predecessor departments; in such instances, the nature of the work, its time period, the exact role of the applicant and other factors would be taken into account to determine whether the applicant in fact did meet the ARAP condition 1c. Likewise, a financial contribution for attendance, such as to cover travel costs, does not represent any employment or contractual relationship.
17. The claimant's attendance at the aforementioned training courses, even if considered separately from his employment in the Anti-Terrorism Court during the time in which HMG was connected with it, would not be sufficient to meet condition 1 of Category 4 for the FCDO. A person who attended these events in Afghanistan as a participant was not directly employed by the FCDO, did not provide goods or services under contract to the FCDO, nor worked alongside the FCDO, in partnership with or closely supporting and assisting the FCDO."
"24. The Claimant also alleges the assessment "does not at any stage engage with the Claimant's account of giving reports to HMG officials". The FCDO review assessment notes in this case refer to the Claimant's statement he "[recalled] that British agents came to [his] office to collect reports" within the context of the wider institutional relationship between HMG and the Court. While the assessor does not address the claim explicitly, it is implicit in their overall conclusions regarding the nature of the relationship between HMG and the Court and HMG and the Claimant. The assessor considered the statement that reports were collected from an office and that the claimant did not claim to have written those reports within the context of the wider information available and concluded that this did not suggest he was working alongside, "closely supporting and assisting" HMG, absent any evidence to the contrary."
AFGHAN JUDGE CASES
"81. In R (Patel) v Secretary of State for the Home Department [2012] EWHC 2100 (Admin), Mr John Howell QC (sitting as a Deputy High Court Judge) found unlawfulness by reason of failing to provide a 'rational reason' for treating the Claimant less favourably than others (at [141]). He said, at [114]:
"The "principle of equality" thus simply means that distinctions between different groups or individuals must be drawn on a rational basis. It is thus no more than an example of the application of Wednesbury rationality …."
82. In R (Hussain) v Secretary of State for the Home Department [2012] EWHC 1952 (Admin), Mr James Dingemans QC (then sitting as a Deputy High Court Judge) said, at [46]
"There is an established principle of public law that "all persons in a similar position should be treated similarly", see Stanley Burnton J. in R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 144 at [74], quoting Lord Donaldson MR in R(Cheung) v Hertfordshire County Council, The Times 4 April 1998. Any discretionary public law power "must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it", see Sedley J. in R v MAFF, ex parte Hamble Fisheries [1995] 2 All ER 714 at 722a-b. One reason for that rule is that it provides consistency in decision making, and some certainty about the application of rules."
83. Where there are divergent decisions in materially the same situations, the Court is required to 'consider with the greatest care how such a result can be justified as a matter of law': R v Department of Health, ex p Misra [1996] 1 FLR 128 at 133 and see also R (Gurung) v Ministry of Defence [2002] EWHC 2463 (Admin), a successful challenge on rationality grounds by Nepalese nationals and survivors of Japanese prison camps from their exclusion in the ex-gratia compensation scheme, having served in a Gurkha brigade."
"101. Judge W was granted leave to enter the UK under ARAP during Operation Pitting. He has since been granted indefinite leave to remain in the UK. He explains in his witness statement that he was a judge in the Anti-Terrorism Court in Kabul, hearing cases of detainees who had been arrested under terrorism law. His identity was well-known. Like all judges in Afghanistan, he was employed by the Supreme Court. He did not work directly or indirectly for the UK Government or military. He and his fellow judges were invited to the British Embassy and elsewhere to attend events and training seminars, and they met British officials on those occasions. The UK Government also provided logistical and operational support for the Anti-terrorism Court in Kabul.
102. When the Taliban came to power, Judge W felt very vulnerable and feared for his life. He and his fellow judges in the Anti-Terrorism Court telephoned the Counter-Terrorism team at the British Embassy, who they knew, and asked them for help. They were invited to complete the ARAP application form, and all of them were called forward for evacuation. They were told by the Counter-Terrorism team at the British Embassy that their work had helped the UK mission in Afghanistan. Upon arrival in the UK, he and his fellow judges were taken to meet the Foreign Secretary, and they were informed by the British officials they had previously met in Kabul that they were granted visas because they worked in the Anti-Terrorist Court.
...
107. In my judgment, Mr Hall is correct in saying that an Afghan judge may be eligible for ARAP, under the terms of the scheme, but that the status of being an Afghan judge is not of itself sufficient to establish eligibility. Eligibility will depend on a case-specific evaluation of the individual facts to see whether the criteria are met.
108. In the case of Judge W, and his fellow judges at the Anti-Terrorism Court in Kabul, the Defendants appear to have been satisfied that they met the criteria in Category 4 in the ARAP policy because of their role in presiding over the Anti-Terrorism Court, which benefited the UK Government. The judges had a working relationship with UK officials in Kabul, in particular, the Counter-Terrorism Unit which arranged for their sponsorship under ARAP. The UK Government provided the Anti-Terrorism Court with logistical and operational support, and organised training and meetings for the judges. Their roles were public and high profile and they were at risk from the Taliban.
109. I was referred by Ms Giovannetti QC to the judgment of Lieven J. in R (JZ) v Secretary of State for the Home Department & Ors [2022] EWHC 771 (Admin), at [11], where she quoted from the decision letter, written by the former head of the Counter-Terrorism team at the British Embassy in Kabul who said:
"I have no evidence to lead me to believe that [JZ] was an employee of Her Majesty's Government, not does it refer to work alongside or in cooperation with HMG units. The Justice Centre in Parwan was not a UK or HMG led intervention and from June 2010 was indeed an Afghan institution - albeit one that benefitted from extensive donor support.
….The UK's capacity building effort around justice and the rule of law over the last nine years was focussed in Kabul – that was also the focus of HMG's counter terrorism mission in Afghanistan. As [JZ] does not claim to have worked in the anti- terrorism courts within Kabul he did not make a material contribution to HMG's mission there….
….the UK's counter-terrorism mission was focussed in Kabul. As [JZ] did not work there, his contribution to the UK's counter- terrorism mission was minimal…."".
"37. As at 4 February 2022 13 members of the Afghan judiciary had been relocated to the UK under ARAP. The lives of all 13 were regarded as being at risk. They were sponsored by either the FCDO or MoD.
38. At least 12 of the 13 worked directly alongside HMG and made a material contribution to the UK's national security objectives in Afghanistan.
39. 11 of this group had been approved under ARAP in summer 2021, due to their role in the Primary or Appeal level of the Anti-Terrorism Court in Kabul between 2020 and 2021. The UK Government provided logistical and operational support for this court: S and AZ [101].
40. The Part 18 response indicated that the UK's support to counter-terrorism courts was limited to Kabul and decisions on eligibility made based on the applicants' work there, with those courts the UK supported. Their cases had been primarily assessed by FCDO, with input from other HMG units. Further, these judges were considered to have "worked alongside" HMG for the following reasons: "From 2015 onwards, HMG developed a partnership with some judges serving in the Anti-Terrorism Court in Kabul. All 11 judges that were resettled due to their role in presiding over terrorism trials were involved in this partnership, although the full circumstances of this partnership may not have been known to the judges involved. They were invited to attend a series of events run by HMG (colloquia to discuss matters of continuous professional development and debate interpretation on points of law and some of the technical aspects of considering different forms of evidence in complex trials), and, at times, HMG officials attended hearings they presided over, where the cases were of interest to the UK".
41. Judge W was in this group. He had provided a witness statement which was relied on by the Claimants in S and AZ. His identity was well-known. He did not work directly or indirectly for the UK Government or military. He and his fellow judges were invited to the British Embassy and elsewhere to attend events and training seminars, and they met British officials on those occasions: S and AZ [101].
42. A second witness statement from Judge W was provided at the outset of the hearing before me. Alexander Pinfield, who had been Deputy Ambassador to Afghanistan from 5 April 2021 to 26 August 2021 and the line manager of the Head of the Counter-Terrorism Team in the British Embassy in Kabul, provided a statement in response to the second statement from Judge W. He explained that from the UK Government's perspective, it was incorrect to say that Judge W did not have links to the Government as he had asserted: for example, he had met the Head of the Counter- Terrorism Team in Kabul several times between February and April 2021 and was one of the judges dealing with terrorism issues in Kabul with whom the Government had developed substantial links, through the Counter-Terrorism Team in particular.
43. The twelfth of the ARAP judges had served on the Appeal Court of the Counter Narcotics Justice Centre ("CNJC"). The CNJC evolved from the Criminal Justice Task Force which was established in 2005 with the support of HMG to investigate and prosecute those involved in serious drug related offences within Afghanistan. The CNJC Appeal Court was located in, and limited to, Kabul. This judge was sponsored for resettlement under ARAP Category 4.
44. In relation to the thirteenth judge, the GLD accepted that it had not seen evidence that the judge had worked directly alongside HMG. However, the judge had worked at a court which received support from the UK Government, namely the Primary Court in the Serious Corruption Crime division, in the Anti-Corruption Justice Centre ("ACJC"). The UK had been instrumental in the creation of the ACJC in 2011, and offered seminars, provided mentoring and established a courtroom for their public hearings. The UK also led international support for the development of an Office of Asset Recovery to support the ACJC in confiscating illegally held and obtained assets, including from corruption. The Part 18 response continued:
"The judge was assessed to be at risk, including in relation to her work at the ACJC. She was in hiding with judges who were approved for ARAP Category 4. When these judges were called forward for their flights under ARAP this left her exposed and alone. Given her exceptional circumstances, the gendered dynamic of her case and the particular risks faced by women in this context, it was exceptionally decided that she should be included alongside the Category 4 judges that had been called forward. It is important to emphasise that the decision was made under the exceptional pressures of the evacuation detailed in Philip Hall's evidence"
45. A letter from the GLD dated 4 February 2022 referred to one further judge (not in fact relocated to the UK at that date) who was approved under ARAP Category 4 where they had not seen evidence that they worked directly alongside HMG.
46. Since the GLD letter of 4 February 2022, a small number of other judges have been granted resettlement to the UK under ARAP Category 4. All of those who were approved for ARAP by FCDO's Counter Terrorism team had served in the Anti- Terrorism Court in Kabul from 2015 onwards.
47. In his second witness statement, Judge W set out his understanding that all the judges working at the Primary and Appeal Anti-Terrorism Courts (7 at Primary Court level and 13 at Appeal Court level) and the administrative staff were given leave under ARAP, apart from one who he understood to be in Pakistan, waiting for a visa to the UK."
"99. Rather, the focus is whether the judge in question has a sufficient link with HMG in accordance with the extant wording of the ARAP policy. As of September 2021 ARAP, Category 4 applied to those who had "worked in meaningful enabling roles alongside HMG, in extraordinary and unconventional contexts" and who received the appropriate support from an HMG unit: [8] above.
100. The evidence now available in relation to those judges who have satisfied ARAP Category set out at [35]-[47] above suggests a broadly consistent pattern to the extent that all had worked at courts which HMG had directly supported and worked closely with, either the Anti-Terrorism Court in Kabul after 2015, the CNJC or the ACJC. This fact had no doubt assisted those judges in meeting the "worked alongside" HMG criterion (save in respect of the ACJC judge where it was accepted that there was no such evidence).
...
107. JZ's work in hearing terrorism cases at Pol-e-Charki prison ended in 2011. In contrast, Judge W had served at the Anti-Terrorism Court in Kabul from 2015 until he was evacuated in August 2021. Further, the Part 18 response showed that all of the judges from the Anti-Terrorism Court in Kabul who had succeeded under ARAP served in that role after 2015. All of the 11 judges who had been successful under ARAP by 4 February 2022 were serving at the Anti-Terrorism Court in Kabul in 2020-2021.
108. In challenging the rationality of the Defendants' reliance on the dates of JZ's service as a justification for his different treatment, Ms Naik QC understandably highlighted that ARAP has no time limit, that from 2008-2011 the UK mission was active in Afghanistan and that JZ experienced threats as long ago as 2014 as a result of his service from 2008-2011.
109. However, these factors do not bear directly on the central question for the ARAP decision-makers, namely whether there was sufficient evidence of JZ having "worked alongside" HMG at the material time.
110. Rather, the dates of JZ's service on anti-terrorism cases help explain why the decision-makers considered he did not meet the "worked alongside" criterion, unlike his comparator judges, because HMG only became involved in supporting the Anti- Terrorism Court in Kabul and building partnerships with the judges there after 2015.
111. The extract of the 20 October 2021 letter quoted at [36] above, read together with the Part 18 response summarised at [40] above, suggests that evidence of partnership, or perhaps the "worked alongside" criterion more generally, was made out by factors such as (i) the extent to which a judge was publicly known to have co-operated with the UK; (ii) whether the judge had been involved in highly sensitive cases of particular UK interest; (iii) whether HMG representatives had attended their hearings; and (iv) whether they had been involved in colloquia of the sort described at [40] above. These were not discrete requirements, but the sort of factors that enabled the "worked alongside" criterion to be satisfied.
...
115. I recognise that the "2015 partnership" evidence has been provided late in the chronology of this claim, but I do not consider that it undermines the analysis above. Reasons for the decision in JZ's case were given contemporaneously. These made clear that it was the lack of evidence of work alongside HMG which was the reason why his application had not succeeded. The 2015 partnership evidence essentially provides further detail about how decisions were reached in other cases.
116. It is a slightly unusual feature of the case that the Defendants accept that the judges granted ARAP may not have appreciated that they were considered to be in partnership with the Defendants. There is plainly an element of subjectivity in the Defendants' assessment of whether the "partnership" existed. However, this is perhaps no more than a further aspect of the evaluative exercise of whether the "worked alongside" criterion was satisfied. This does not in itself show that the scheme was operated in an irrational way.
...
119. The Claimant argues that the treatment of the "outliers" (the two judges within the ARAP cohort where it was accepted that GLD had not seen evidence that they had "worked alongside" HMG: see [44]-[45] above) is further evidence of an inconsistently applied policy. In my view it is not: one of these judges had worked in a court supported by HMG, consistently with other judges in the ARAP cohort, and there were exceptional reasons which justified the ARAP grant to that judge: see [44] above. This decision, and the decision in respect of the other such judge, was apparently an exercise of the residual discretion under ARAP which the Claimant accepted existed. Its exercise in a small number of cases, even within a small cohort, does not show that the overall scheme was incoherent or inconsistent.
120. For these reasons I consider that there were distinguishing factors between JZ and the judges of the Anti-Terrorism Court in Kabul who served after 2015, which explained and justified the decision to grant leave to them, under the terms of the ARAP policy, but to refuse it to him. There was no other inconsistency as a species of rationality between JZ and the other judges who succeeded under ARAP."
"144. Ms Kalunga's statement was made three months after the Decision; and also after the SGD had been filed and served; after permission had been granted; and after the DGD had been filed and served. In that time she would no doubt have dealt with many cases. Whether she could remember specifically what had been discussed in the Claimant's case must be doubtful – especially as Mr Foxley no doubt will have provided statements in many of them, as Mr Seddon observed. Ms Kalunga did not produce - or even refer to - any contemporaneous notes of her own. Mr Brown therefore candidly conceded there was always the possibility that she could be wrong. I therefore approach this part of Ms Kalunga's evidence with the dangers identified by Pill LJ in Young, [20], firmly in mind. He referred to the: "… dangers in permitting a planning authority, whether by its committee chairman or a planning officer, providing an explanatory statement. The danger is that, even acting in good faith, the witness may attempt to rationalise a decision in such a way as to meet a question which has arisen upon the effect of the decision. Moreover, it will usually be impossible to assess the reasoning process of individual members and there are obvious dangers in speculating about them. It is therefore important that the decision-making process is made clear in the recorded decisions of the committee, together with the officers' report to committee and any record of the committee's decisions. Decisions recorded in the minutes should speak for themselves.
145. I also bear in mind what was said about ex post facto reasoning in R (United Trade Action Group Ltd) v Transport for London [2022] RTR 2, [125], and especially at [125(2)-(3), (5)]:
"2. … A claim for judicial review must focus on the reasons given at the time of the decision. Subsequent second attempts at the reasoning are 'inherently likely to be viewed as self-serving.'
3. Evidence directly in conflict with the contemporaneous record of the decision-making will not generally be admitted
… …
5. It is not likely to be appropriate for the court to admit evidence that would fill a vacuum or near-vacuum of explanatory reasoning in the decision-making process itself, expanding at length on the original reasons given. Such evidence may serve only to demonstrate the legal deficiencies for which the claimant contends …""
"172. ... I find the Panel's treatment of the Claimant's evidence about his work to be flawed. Mr Brown was quite clear in response to a direct question from me: 'There is no dispute he acted as a judge'. The Panel therefore did not in terms disbelieve his evidence, but equally said in effect that it had not been corroborated. The Panel therefore seems to have adopted a kind of half-way house approach, whereby it did not disbelieve the Claimant, but it did not entirely believe him either. Mr Brown accepted that the Panel had to act fairly and said that was 'uncontroversial'. The approach the Panel adopted was an unfair and unreasonable approach which undermines its reasons and conclusion. It should either have said, fairly and squarely, that it tended to disbelieve the Claimant's account of his work (and given reasons for that conclusion, having put its concerns to him for his response), or it should have said it accepted it, and then weighed it properly against the conditions. If it required further details of precisely what cases he worked on including, for example, the names of Taliban defendants, then it should have sought them.
...
174. Because the panel did not ask directly for further evidence, the only rational conclusion open to it was to accept the Claimant's account in full..."
"... touched on it in part at the end of paragraph 20 of his judgment where he indicated that the decision-maker would have to consider, amongst other matters, (1) the substance of the work the individual undertook in Afghanistan (2) the nature of the institutions in which he worked and (3) the nature of the connections if any between those institutions and the relevant United Kingdom government department or departments. I agree that those are three matters that are likely to be relevant to determining whether an individual worked alongside a UK government department (there may be other relevant factors, depending on the circumstances). I understand that Mr Blundell accepted that those factors would be relevant. I do not consider that the fourth factor identified by the judge, namely, the contribution made by the institutions where the individual worked to the United Kingdom's military and national security objectives, is likely to be relevant to whether condition 1(iii) is satisfied...".
"54. Thirdly, LND also relied upon his work as a judge at the court for internal and external security between 2008 and 2010 and his role as chairman of that court from 2010 to 2012. It is clear from the material that the FCDO was asked about this and indicated that its, the FCDO's, role working with that court began in 2015 after LND had ceased to be a judge there. I can see how it might be said that the material indicated that until 2015 there was no involvement by a United Kingdom government department. However, I do not consider that the evidence before this court does establish that. The issue is whether other UK government departments, and in particular the British armed forces, had any links with the court for internal and external security in Kabul such that judges who worked there might be said to be working alongside in partnership with or closely supporting and assisting the British armed forces. That issue was not considered by the FCDO (who, in fact, suggested in their response to the MoD that the MoD might wish to consider any relationship they had with LND, although noting that none appeared evident from the documentation).The MoD did not consider the question of whether or not there were links between it and the court in Kabul prior to 2015. Mr Blundell fairly accepted that that was the case. It is right to note that there is evidence of the United Kingdom funding the work of the court (although the 9 December 2022 e-mail indicated that that would not normally be considered sufficient to satisfy the requirements for condition 1(iii)). Further, other case law indicates that the British armed forces provided logistical and operational support to the terrorism court and, on one occasion, a judge, referred to as Judge W, working there was found to meet the eligibility requirements of ARAP requirements (see paragraph 101 of the judgment of Lang J. in R (S) v Secretary of State for Foreign, Commonwealth and Development Affairs [2022] EWHC 1402 (Admin)). That latter fact may, however, reflect the fact that that decision was taken as Afghanistan was about to fall to the Taliban and may reflect the urgency of the situation rather than a considered decision that there were sufficient links between the British armed forces and judges at the court to satisfy the requirements of condition 1(iii). In any event, the possibility of LND satisfying condition 1(iii) because of his role at the court in Kabul between 2008 and 2012 has not been specifically considered by the MoD.
...
56. In summary, therefore, the judge's finding that LND satisfied conditions 1 and 2 is flawed. Nevertheless, the decision of 9 December 2022 is itself flawed by reason of the MoD's failure to consider whether or not the work LND did in connection with the drafting of the penal law and the anti-narcotics law, and the work done as a judge, and then chairman, of the court for internal and external security in Kabul, was done alongside in partnership with or closely supporting and assisting a United Kingdom government department or the British armed forces.
...
62. In the present case, matters have moved on as this court has decided that ARAP 3.6 is to be interpreted differently from the way that the judge below interpreted it. This court has, however, found that the 9 December 2022 decision of the Secretary of State for Defence is unlawful as it fails to consider two material matters in its consideration of whether or not LND meets the requirement of condition 1(iii). The appropriate remedy is to vary the order of the judge and to provide that the decision of 9 December 2022 is quashed and to remit the matter to the Secretary of State for reconsideration. That reconsideration will need to address first whether there are any institutional links between the FCDO and the committee or committees relating to reform of the penal law and the anti-narcotics law of which LND says he was a member. Essentially, the MoD will be considering if there is evidence of any institutional link, or structural support, between the FCDO and the committees concerned and, in particular whether any FCDO officials were involved in the work of that committee or committees. That will be part of the process of considering whether or not LND worked alongside in partnership with or closely supporting and assisting the work of the FCDO. Secondly, it will need to consider if there were any institutional links between the British military and the court for internal and external security in Kabul between 2008 and 2012 as part of the process of considering whether or not LND worked alongside in partnership with or closely supporting and assisting the work of the British armed forces or the MoD during that period."
"72. ...I turn to his role between 2008 and 2012 at the Kabul court for internal and external security. For myself, I would accept the MoD's position that the fact (if established) that it provided some UK funding for the court would not in itself be enough to satisfy Condition 1, and that some more specific relationship between him and the UK government would be required (such as was apparently later developed with a particular group of judges as noted by Hill J in R (JZ) v Secretary of State for the Home Department [2022] EWHC 2156 (Admin)); and I am not satisfied that the case of Judge W, referred to in both JZ and the case of S to which Lewis LJ refers, suggests to the contrary. I am, however, narrowly persuaded that the FCDO's suggestion that the MoD should consider whether LND's role at the court might have involved him working alongside it, which on the evidence was not pursued, is sufficient evidence that a relevant consideration was not addressed by the decision-taker."
"13. Responsibility for the assessment of eligibility for relocation lies with officials within the Ministry of Defence. These officials are "best placed, liaising where necessary with other Government agencies operating in Afghanistan, to…assess [a person's] eligibility for relocation" (S v Secretary of State for the Home Department [2022] EWCA Civ 1092, para 16). In relation to Category 4 cases, the defendant may refer the case to other Government departments and agencies in order that they may confirm whether or not an individual has worked alongside a Government department."
"16. If an applicant satisfies the ARAP criteria, responsibility passes to the Home Office. The Immigration Rules have specifically catered for relocation to the United Kingdom under ARAP since 1 April 2021. Provision for the grant of entry clearance to a person who "worked in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department" was introduced on 14 December 2021. The Home Office will ensure that all relevant aspects of the Immigration Rules are satisfied. This will include an assessment of whether there are grounds for refusal of entry clearance under one of the general grounds for refusal under Part 9 of the Rules, such as criminality."
"50. Lord Murray emphasised that ARAP involves the exercise of a prerogative rather than a statutory power. As the claimant's application did not involve a power bestowed by the legislature, there could be no question of the executive being constrained to exercise the power in accordance with the legislative intention or in some particular way or manner (Sandiford, para 61). Although not immune from public law challenge, the court should be slow to interfere with a power that is intrinsic to the Crown such that it is for the Crown to determine whether and how to exercise it...
51. ARAP concerns a prerogative power that is exercised on humanitarian grounds in addition to legal powers and duties towards foreign nationals (whether those powers and duties are derived from international or domestic law). I did not hear full argument on whether a person who claims that he or she should have been selected for extra-statutory treatment can assert an entitlement to a more active approach to intervention by the court than the conventional approach to the judicial supervision of statutory powers and duties. I do not need to resolve the question and prefer not to do so. Nevertheless, in light of the gravity of the case, I have given close scrutiny to all the evidence and assured myself that the proceedings in this court have been fair. I have considered the whole picture (LND1, para 47, above)."
"60. The court may take into consideration whether a claimant has given sufficient particulars of, and described particular circumstances in which, he or she may be regarded as having "worked alongside" a United Kingdom Government department (R (CX1) v Secretary of State for Defence [2024] EWHC 94 (Admin) DC, para 65, per Dingemans LJ). That has not happened in the present case. Other than the FCDO and the NCA, it was not suggested by either party that the claimant's case might have been referred to any other Government department or agency. In the absence of particulars of how the claimant may be said to have worked "alongside" a Government department, the defendant was entitled to treat the claimant as having advanced no more than "mere assertions."..."
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62. In my judgment, Lord Murray is correct to say that the claimant's status as a civil judge was not decisive but was one aspect of the review decision overall. It cannot be said that the defendant was unreasonable to consider the nature of the claimant's work as a judge and the sort of cases with which the claimant was involved. The defendant was entitled to weigh the fact that the claimant was not a criminal judge trying terrorism cases, where Category 4 status may be easier to demonstrate. It cannot be said that the nature of the claimant's work as a civil judge was an irrelevant consideration. Nothing in the defendant's approach was flawed."
THE GROUNDS OF CHALLENGE
DISCUSSION
Ground 1
Ground 2
Ground 3
Ground 4
THE PREROGATIVE
OUTCOME