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

I do not understand it to be disputed by the defendant that Mahad principles apply to the interpretation of the quoted phrases in Category 4 of ARAP. Those phrases are to be given their ordinary, objective meaning. It is not for the defendant to decide what “in partnership” or “working alongside” mean in any particular factual context.

It is a striking feature of the second review decision that neither it, nor the FCDO assessment which helped inform it, engage with what was the defendant’s position in JZ (paragraphs 31 to 33 above). At paragraph 40 of her judgment, Hill J details a Part 18 response filed in the case before her, which speaks of HMG developing a partnership from 2015 with “some judges” of the ATC. 11 judges of the ATC found themselves resettled in the UK “due to their role in presiding over terrorism trials.” These judges were “involved in this partnership, although the full circumstances of this partnership may not have been known to the judges involved.” Only in the GLD’s letter of 29 May 2025 do we find the same language used.

Hill J was understandably concerned about the assertion that the judges assessed by the defendant to be in partnership with the FCDO “may not have appreciated” they were in such a partnership and that there was “an element of subjectivity” in the defendants’ assessment of whether a partnership existed. She considered, however, that “this is perhaps no more than a further aspect of the overall evaluative exercise that needs to be undertaken, given that it is now established that each case needs to be assessed on its own particular facts”. I also consider it noteworthy that, at paragraph 90 of her judgment, Hill J considered the primary point of distinction between the claimant and the ATC judges who were approved for ARAP to be that they “served in the Anti-Terrorism Court in Kabul from 2015 onwards. The claimant did not.” The fact that “from 2015 onwards, HMG developed a partnership with some judges” in the ATC was a secondary factor.

The facts of present case are unlike those of the cases summarised above, in that the claimant was a judge of the ATC up to April 2016, and so was serving there for some seven months after “the FCDO started working with the Court...” (paragraph 13 of Ms Ferguson’s witness statement) and after the FCDO began to have “institutional links” with the ATC (paragraph 14 of her statement). The defendant’s basic position, as now advanced at the hearing, appears to be that the claimant was not “in partnership with” or “working alongside” the FCDO during that time because – despite these working arrangements and institutional links - he was not one of the “specific partnership judges”. Indeed, it seems from paragraph 14 of Ms Ferguson’s statement that the FCDO’s “close involvement” with “specific partner judges” dates only “from May 2018 when the Criminal Justice Advisor was appointed ...”. It is wholly unclear whether the defendant’s position is that there were such partner judges before May 2018, or only afterwards. This is one aspect of a larger problem which I shall address.

It is noteworthy that the focus in the case of S was on the role of the ATC judges, like Judge W, “in presiding over the Anti-Terrorist Court, which benefited the UK Government ... their roles were public and high profile and they were at risk from the Taliban” (paragraph 108 of the judgment). The role appears to have been regarded as institutional in nature. The importance of institutional links is made plain in the judgment of Lewis LJ in LND1. At paragraph 28 of his judgment, Lewis LJ cited passages from the decision in the case of LND1. A reason for distinguishing LND1’s case was that “The applicant’s asserted counter terrorism work pre-dates the FCDO’s partnership with the Kabul counter-terrorism courts in 2015.” In any event, Lewis LJ, applying the objective interpretation mandated by Mahad, plainly considered the issue of institutional links to be significant, in deciding the relevant questions (see paragraph 39 above/paragraph 46 of his judgment). The “nature of the institutions” in which the judge worked and “the nature of the connections if any between those institutions and the relevant United Kingdom department or departments” would require consideration. Lewis LJ understood leading counsel for the defendants to “accept that those factors would be relevant.”

That led Lewis LJ to find that the decision-making in LND1’s case was flawed, in part because there had been no consideration of whether there was evidence of an institutional link, or structural support, between the FCDO and the committees concerned with reforming penal and anti-narcotics law and whether “there were any institutional links between the British military and the court for for internal and external security in Kabul between 2008 and 2012”. All this would be “part of the process of considering whether or not LND worked alongside or in partnership with or closely supporting and assisting the work of the British armed forces or the MoD during that period.” (paragraph 62).

I am very conscious that, in his concurring judgment, Underhill LJ made reference to the relationship identified by Hill J in JZ with “a particular group of judges”; and that he accepted that providing “some UK funding for the court would not in itself be enough” to satisfy the relevant condition”. There is, however, nothing in his judgment that constitutes disagreement with the emphasis placed by Lewis LJ on institutional links as a relevant factor in deciding if the relevant ARAP requirement is met.

In the case of a court doing a particular type of work, which HMG considered to be important to its policy objectives, any assistance and support is likely to be at institutional level for the simple reason that it is the collective endeavour of the judges doing the work which is being encouraged. Although FCDO officials may not come into personal contact with every judge, it is, at first sight, difficult to see any rational justification for adopting an approach whereby it is only those judges with whom a personal link has been established who are considered to be in partnership with or working alongside the Department to which those officials belong.

The present case requires the court to interrogate the defendant’s apparent stance in respect of the so-called “partnership” judges of the ATC. In so doing, I am continuously mindful that Ground 1 is in essence a rationality challenge; and that this creates a high hurdle for the claimant to surmount. I also remind myself that alleged unlawfulness based upon what is said to be a disparity in treatment is not a free-standing basis of judicial review. The claimant needs to establish that, on proper analysis, the defendant has failed to provide a rational reason for the difference in treatment: R (Patel) at paragraph 114.

The claimant submits that, in carrying out the above, the court must apply “anxious scrutiny”. I did not hear Lord Murray to demur, although he raised an issue regarding the alleged prerogative nature of ARAP, to which I shall return in due course. Given that the court is concerned with the claimant’s fundamental human rights, I am in no doubt that the court must give anxious scrutiny to the materials before it, always remembering that anxious scrutiny does not change the public law principles in play, so as to lead the court into an inappropriate merits-based assessment.

The details of the post-decision evidence appear to have been unknown to the case worker who made the second review decision and the writer of the FCDO assessment. At all events, the FCDO assessment contends that the ATC judges found eligible under ARAP succeeded “due to their roles presiding over certain trials between 2020 and 2021” and, it seems, because the judges “were known to the FCDO team”. They were “offered resettlement on that basis”. The importance of being known to an FCDO official is then emphasised by the assertion that “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”. Although the assessment then says that the assessment of eligibility will depend on the person’s specific role, it is evident that the preceding passage was intended to be important. This is made pellucid by the subsequent passage, in which it is said that “The BEK CT Team did not know of” the claimant and that “former team members... confirmed that, at the time the applicant was working at the” ATC “(up to April 2016), they would not have had reason to work with him.”

There is here an emphasis on being known to FCDO officials, which, on proper analysis, is not indicative of “working alongside... in partnership” but is, rather, the yardstick for finding such a relationship. Although the sentence which begins “It is unlikely that...” might suggest a distinction between being known and working alongside ... in partnership, no hint of what this might be is given. In any event, it is entirely unclear what is meant by FCDO officials “working with” a judge of the ATC. The post-decision evidence refers to officials sitting in on cases of interest to HMG and organising colloquia and other meetings. It is unclear whether this is what is meant in the FCDO assessment by “working with”. If it is, there are problems with it, as I shall explain when I address the post-decision evidence.

The FCDO assessment highlighted a passage in the evidence of NAR, who said that the ATC judges were focussed on hearing cases and that a lot of the contact between the ATC and the British involved the administrative Directors. They were the ones who decided which judge should sit on which case. The writer of the assessment seems to have regarded this as having a material bearing, as they said it “suggests the CT judges worked at a remove from HMG personnel.” The role of the Directors, however, raises additional unanswered questions regarding the basis on which certain judges were known to the FCDO and what is meant by “working with” such judges. In particular, if the selection of judges to sit on cases was an administrative function, over which the judges had no control, no thought appears to have been given to whether the fact of an FCDO official knowing a particular judge as a result of happening to sit with them was, in reality, purely a matter of chance.

The case worker adopted the FCDO assessment, with all its flaws, as identified above.

It is now necessary to turn in detail to the post-decision evidence in the shape of the GLD letter of 29 May 2025 and Ms Ferguson’s witness statement. The need for caution in approaching such evidence is well-established. As Julian Knowles J held at paragraph 105 of MP1, “there is a natural tendency to bolster a decision under challenge”.

The letter of 29 May 2025 largely mirrors what is in the FCDO assessment, in that it describes the 11 judges as being approved “due to their role in presiding over terrorism trials”. They were “serving in the [ATC] in 2020 and 2021”. Taken at face value, the reason for approval was the role in hearing terrorism trials, rather than being in post in 2021; although being in post at the fall of Afghanistan to the Taliban is likely to have resulted in these judges standing a greater chance of being known to the most recently serving FCDO officials, and thus likely to be evacuated at that point. Neither of those latter considerations is, however, in itself capable of constituting a rational reason under ARAP for relocation.

One then comes to the passage in the letter, which describes HMG developing a partnership with some ATC judges from 2015. The letter states that “All the 2015 judges that were resettled due to their role in presiding over terrorism trials were involved in this partnership.” On its face, therefore, this suggests that being a “partnership judge” was not the reason for resettlement. But the matter is thrown into doubt by the fact that the information about the partnership comes under the heading “With respect to the above group please describe in brief terms what evidence there was that each judge “worked alongside” HMG.” The fact that, according to the letter, and the evidence that was before Hill J in JZ, an ATC judge might not know that they were, in fact, a partnership judge or, at least, “the full circumstances” of that partnership, understandably troubled her; although at paragraph 116 of her judgment, she regarded it as “a further aspect of the evaluative exercise” needed to establish whether the “working alongside” requirement was met.

The fact that the present claimant was working as a judge in the ATC after 2015 means there is an intense focus (not required in the other cases involving Afghan judges) on how a judge became (seemingly unknown to themselves) a “specific partnership judge” of the ATC. Ms Ferguson’s evidence suggests that the emergence of such partnership judges was linked with the appointment in 2018 of the Criminal Justice Advisor. Lord Murray described the institutional relationship as being intensified in September 2015 and further intensified in 2018, with the arrival of the Criminal Justice Advisor. He told me on instruction at the hearing that the Criminal Justice Advisor’s function was to provide legal and policy advice on criminal justice matters to the British Embassy in Kabul and that they engaged with stakeholders, including identifying professional development opportunities for police, prosecutors and judges, as well as mentoring.

It is impossible to discern from the evidence the nature of the relationship between the partnership judges and the Criminal Justice Advisor. The GLD letter suggests that a judge was a partner before being invited to attend “colloquia”, discuss matters of “professional development” and debate “points of law”; and that it was partner judges whose cases would on occasion be observed by HMG officials. If so, that leaves begging the question of how the partner judges were selected. If, on the other hand, one became a partner judge by being invited to such events and discussions, the criteria for invitation are unexplained. If attendance at a hearing had a bearing on the judge becoming a partner judge, the defendant has not explained why this was rational, given that it seems to depend on the chance of whether the judge happened to be hearing a case that was of interest to HMG.

There is in short no coherent evidence before this court to explain the defendant’s designation of certain judges as specific partner judges. The position might have been different, had there been evidence from an official who had served in Kabul as a Criminal Justice Advisor or who could otherwise speak from direct knowledge. The defendant cannot be heard to say that being such a partnership judge was only one element in the overall evaluative exercise. On the contrary, Ms Ferguson's statement puts it beyond doubt that being a partnership judge was regarded by the defendant as at least a highly relevant factor.

The difficulty in which the defendant finds himself on this issue underscores the importance placed by Lewis LJ in LND1 on institutional, as opposed to personal, links between HMG and a court or other body. This is not to say that such links will always be sufficient. It would, for example, be possible to envisage a partnership existing between the FCDO and, say, only a cohort of leadership judges within a court. That, however, is very far from being the position on the current evidence. The partnership judges are not said to have been leadership judges or to have held a higher (or otherwise different) position in the judicial hierarchy than their fellow judges in the ATC.

The approach adopted by the defendant, concentrating on alleged personal relationships which, on analysis, lack any intelligible basis, has had the additional effect of leading the defendant to afford no material weight to the institutional relationship between the FCDO and the ATC, which existed at the time the claimant was a serving judge at that court. This is most graphically demonstrated in the passage in Ms Ferguson’s statement where she addresses the evidence of the claimant and NAR concerning reports that were produced by the judges for HMG and collected by British officials from judges’ offices. Paragraph 24 of her statement appears to downplay this evidence, on the basis that the reports were produced and collected “within the wider institutional relationship between HMG and the Court.” That institutional relationship was, however, plainly relevant to the overall assessment of the claimant’s case. Ms Ferguson alights on the wording used by the claimant in his statement, that the reports were “collected” from an office and that he did not claim to have written the reports. That is, with respect, to descend to inappropriate nit-picking. Both NAR and the claimant attest to the institutional practice of the judges of the ATC producing reports for HMG. Like much else of the claimant’s case, that point has merely been brushed aside. It also ignores the evidence of NAR, who at paragraph 11 of his statement, refers the British official he knew as “David” coming to the judges’ offices “to take verbal reports about our cases” (my emphasis). In conclusion, the emphasis placed by the defendant on what, given the state of the evidence before the court, is an unintelligible concept of partnership judges means that the defendant has erred in his approach to the wording of the policy in ARAP.

The claim accordingly succeeds on Ground 1.