AC-2025-LON-001440 - [2025] EWHC 2472 (Admin)

There is now a sizeable body of cases concerning applications under ARAP by former Afghan judges. The following featured in submissions at the hearing.

In R (S and others) v Secretary of State for Foreign, Commonwealth and Development Affairs and Others [2022] EWHC 1402 (Admin), Lang J heard the judicial review brought by a number of former judges of Afghanistan. One issue was whether there existed an irrational or otherwise unlawful difference in treatment between the judges and those who had succeeded under ARAP or by means of a grant of leave outside the Immigration Rules. Lang J addressed the relevant law at paragraphs 81 and 82 of her judgment:

“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.”

Lang J considered the case of Judge W, who had been a judge of the ATC and who had secured entry to the UK:

“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….””.

At paragraph 113 of her judgment, Lang J contrasted the position of judges of the ATC with AZ, one of the claimants before her. She noted that JZ’s case had been examined by “the FCDO Head of Counter-Terrorism Afghanistan Task Force which would be the unit responsible for sponsoring Counter-Terrorism judges under Category 4 of ARAP, and so would be able to identify them. AZ had not been involved in cases of special UK interest. AZ had not received training or other support from the UK Government....”. At paragraph 116, Lang J considered the case of a female judge, S, who had “investigated ... national security cases, including cases involving the Taliban and Daesh/ISKP”. S, however, had not worked with the the UK Government in any capacity or had any connection with UK Government officials...”. All of this led Lang J to conclude at paragraph 117, that there were “distinguishing factors between S and the judges of the Anti-Terrorism Court in Kabul which explained and justified the decision to grant leave to them under the terms of the ARAP policy, but to refuse it to S.”

In R (JZ) v Secretary of State for the Home Department and Others [2022] EWHC 2156 (Admin), the claimant had been a judge at the Justice centre in Parwan and at Pol-e-Charki Prison. At paragraph 20 of her judgment, Hill J set out passages from the decision challenged by JZ. The decision-maker explained that 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 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 existence of that focus was emphasised by the decision-maker in the next paragraph cited by Hill J.

At paragraph 35 of the judgment, Hill J observed that there was “no statement or principle that the status of being an Afghan judge is sufficient to establish eligibility under ARAP”. Each case was fact-specific. Hill J then proceeded to consider the circumstances of the judges who had been admitted under ARAP Category 4:

“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.”

At paragraph 90 of her judgment, Hill J recorded the submission made to her by the defendants that “all judges who were approved for ARAP by FCDO’s Counter-Terrorism Team served in the Anti-Terrorism Court from 2015 onwards. Further, as explained in Mr Pinfield’s evidence and the Part 18 response, from 2015 onwards, HMG developed a partnership with some judges serving in the Anti-Terrorism Court in Kabul, as described at [40] above. This did not apply to the Claimant.”

In her analysis, Hill J, at paragraph 98, held it was “now clear that being a judge who has presided over terrorism cases in Afghanistan is not, in itself, sufficient to bring a judge within ARAP Category 4:

“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.”

The claimant in R (MP1) v Secretary of State for Defence [2024] EWHC 410 (Admin) succeeded before Julian Knowles J. The claimant had been a criminal defence lawyer working for an NGO, and a judge in Helmand Province from 2015 to 2021. The facts of MP1 as found by the judge are not closely analogous to those of the present case. Furthermore, some of the reasoning needs to be approached with caution, in the light of the judgment of the Court of Appeal in R (LND1 and Others) v Secretary of State for the Home Departmentand another [2024] 1 WLR 4433, which was handed down a few days after Julian Knowles J had delivered his judgment. Nevertheless, his judgment is relevant for present purposes in two ways.

First, as in the present case (with the witness statement of Ms Ferguson), the judge was faced with evidence from the defendant that was generated only after the impugned decision had been taken; and which sought to justify that decision. The judge had this to say:

“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 …””

Secondly, Julian Knowles J was critical of the decision-making in MP1’s case, as regards the defendant’s treatment of the evidence advanced by MP1:

“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...”

In LND 1, the Court of Appeal allowed the appeal of a former Afghan judge who had held various judicial posts in that country. The trial judge was found to have erred in eliding the requirements of Conditions 1 and 2 of Category 4 of ARAP. Whether the claimant had “worked alongside ... in partnership” with a UK Government Department was a separate question from whether he had made a significant contribution towards the achievement of the UK Government’s military or national security objectives. The Court nevertheless held that the decision under challenge was flawed because the defendant had failed to consider certain matters that were material to its consideration of the “worked alongside ... in partnership” issue.

Lewis LJ gave the leading judgment. At paragraph 28, he noted the decision-maker as stating that LND1’s “asserted counter terrorism work pre-dates the FCDO’s partnership with the Kabul counter-terrorism courts in 2015”.

At paragraph 39, Lewis LJ considered the principles governing provisions of the Immigration Rules, such as the ARAP provisions, to be well-established. As held by the Supreme Court in Mahad v Entry Clearance Officer [2010] 1 WLR 48, the rules fall to be construed sensibly, according to the ordinary and natural meaning of the words used.

Beginning at paragraph 46, Lewis LJ said that the trial judge:

“... 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...”.

At paragraphs 51 to 53, Lewis LJ held that the defendant had not considered relevant matters concerning LND1’s work in support of judges at the Counter Narcotics Justice Centre and his work as a member of the committee drafting the penal law and the anti-narcotics law. Lewis LJ was, however, also concerned that there had been a failure to consider LND1’s work as chairman of the court for internal and external security:

“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.”

In a short concurring judgment, Underhill LJ had this to say about LND1’s security judge role in Kabul:

“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 Secretaryof 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.”

Peter Jackson LJ agreed with both judgments.

The final case to be mentioned is R (BYK) v Secretary of State for Defence [2025] EWHC 235 (Admin). The claimant in that case had been the Head of a City Court Civil Cases Division, and, separately, the Head of a Court Combatting Usurpation of State Land and Properties covering seven provinces (paragraph 18 of the judgment).

At paragraph 13 of her judgment, Farbey J stressed the centrality of the Ministry of Defence officials in the ARAP process:

“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.”

At paragraph 16 of her judgment, Farbey J explained the role of the Home Office and the immigration rules in the process:

“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.”

At paragraph 41, Farbey J noted the holistic nature of the exercise in determining an ARAP application, referencing paragraph 47 of Lewis LJ’s judgment in LND1 that it “will usually be necessary to consider the whole picture of the individual’s work and activities in Afghanistan when assessing whether he worked alongside in partnership with or closely supporting and assisting a United Kingdom Government department.”

Paragraphs 50 and 51 concern the issue of the prerogative in the context of ARAP:

“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).”

Farbey J accepted the defendant’s submission that BYK’s case to have worked alongside ... in partnership was lawfully regarded by the defendant as insufficiently evidenced and that the defendant had been entitled in effect to give weight to the fact that BYK had not been a criminal judge:

“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.”...”

...

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.”