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

Ground 2 asserts that the defendant failed lawfully to consider the claimant’s evidence cumulatively and/or failed to apply anxious scrutiny to that evidence. Although anxious scrutiny is (rightly) invoked by the claimant, one does not need to deploy that tool in order to discover serious defects in the defendant’s decision-making. It is a basic principle of public law that relevant considerations have to be taken into account. In the present context, this involves engaging meaningfully with the evidence as a whole and having due regard to matters which might tend to support the application. This in no sense, of course, requires the defendant to reach an overall conclusion that is in favour of an applicant. It does, however, mean the applicant being given a fair crack of the whip by a decision-maker who has not closed their mind in advance.

With this observation, it is necessary to return to the case worker’s reasons for refusing the application. The relevant section begins with the case worker considering that the evidence of the claimant in support of his claim to have worked alongside and/or in partnership with and/or closely supporting and assisting a UK Government department “does not go beyond mere assertions”. Given the level of detail provided by the claimant about his work in the ATC between 2011 and 2016, this categorisation is problematic. The case worker then proceeds to discount the evidence that the claimant tried cases involving those who had been arrested by the Armed Forces on the basis that it is uncorroborated. It is unclear whether this is an aspect of the wider uncertainty of what, if anything, of the claimant’s case was accepted by the case worker (see paragraph 82 below). If the lack of corroboration related to the issue of whether the suspect was arrested by British or other coalition forces, the question arises why the case worker considered this to be relevant. Any requirement on the claimant to show that the forces arresting an alleged terrorist for trial before the ATC must be British is, in the context of the present claim, simply irrational. There is no assertion in the evidence that the interest shown in the ATC by the FCDO was limited to those cases where British forces had been responsible for arresting the alleged perpetrator. Any such suggestion would in any event require to be properly reasoned, in order to avoid its own charge of irrationality. It is difficult to avoid the conclusion that the case worker was unaware of a key matter; namely, the understandable interest taken by HMG in the ATC, including the period 2011 to September 2015, but particularly from the latter date to the point when the claimant left the ATC to take up other duties, during which time a form of institutional partnership was being developed.

In what can only be characterised as an attempt to meet this difficulty, Ms Ferguson, at paragraph 14 of her statement, now seeks to suggest that, during the period September 2015-April 2016, the claimant has not adduced evidence of hearing any cases in the ATC. She observes that his “abridged list of cases” ends with one on 27 July 2015, which “precedes HMG’s involvement with the Court by more than a month, and does not therefore indicate any link with HMG.”

The ex post facto nature of this evidence means it needs to be approached with considerable circumspection. Even taken on its own terms, however, it is seriously troubling. As Ms Ferguson herself notes, the list of cases provided by the claimant is “abridged”. No account seems to have been taken of the obviously salient fact that the claimant is currently in hiding from the Taliban, with no apparent access to the records of the ATC. Paragraph 22 of the claimant’s first witness statement says it is impossible for him to access the “courts, judicial buildings and systems, which are now under the control of the Taliban.” In all the circumstances, this aspect of the evidence cannot rationally be doubted. Mr Ó Ceallaigh submitted that the defendant is likely to have records of cases tried in the ATC and I did not hear Lord Murray to take issue with the submission. In any event, there does not appear to have been any attempt by the defendant to put this newly emerged concern to the claimant, before Ms Ferguson’s statement was filed. Quite irrespective of the issue of records, it cannot now be seriously disputed that the claimant was a judge of the ATC during the relevant period, in which case the strong inference must be that he was acting in that capacity during that time and would therefore be expected to be hearing cases within the court’s jurisdictional remit. But even if, for some reason, he was engaged on other duties during that time, the claimant was still a judge of the ATC and therefore institutionally connected with it and, so, with the FCDO’s developing partnership with the ATC. None of these points appears to have been considered by the defendant.

The case worker’s reasons take as a point against the claimant that he expressly said he did not have a direct relationship with the British Government and its armed forces. However, that was also true of Judge W: see paragraph 31 above; paragraph 41 of JZ. The case worker considered that any contact between British officials and the claimant during his employment “would more likely than not have been courtesy visits or invites by way of an extension to diplomatic relationship building.” This displays a lack of awareness of the defendant’s stance vis a vis the ATC from September 2015. In similar vein, the case worker disregarded the significance of any of the training courses evidenced by the claimant because “it was the Kabul Appeal Court who was responsible for allocating judges to attend these training courses and not part of the FCDO or the British Embassy”. That is not a rational reason. It would naturally be for the ATC to decide which judges to send for training. It also ignores the evidence of NAR that the judges would take it in turns to attend training. The case worker could find no evidence of payments being made to the claimant in respect of his attendance at such courses, which appears to have led him to doubt the claimant’s overall case. Significantly, at paragraph 16 of her statement, Ms Ferguson does not appear to deny in terms that money may have been paid. Instead, she takes the narrow point that any such payment did not represent employment or a contractual relationship. That is, of course, true; but it ignores the fact that any such payments could be said to be indicative of a desire on the part of HMG for the ATC judges to attend training and is thus a relevant aspect of the wider holistic picture.

I understand the parties to be in agreement that a holistic view needs to be taken, in order for there is to be a proper determination of whether a judge was working alongside... in partnership with ...a department of HMG; although there is no consensus on what this involves in the case of the claimant. In LND1, Lewis LJ considered at paragraph 54 that, in the case of a judge who had worked in the ATC in Kabul, it was necessary to consider “whether or not there were links between [MoD] and the court in Kabul prior to 2015.” By the same token, it was necessary in the present case to consider the nature and extent of links between the ATC and the FCDO (and its predecessors) both before that point (when the claimant received training in 2013 under the apparent auspices of the FCDO’s Rule of Law Officer and no less than two weeks’ training in 2014 from the British Embassy/Adam Smith International; as well as his work trying and sentencing Taliban terrorists); and between 2015 and April 2016, when the claimant left the ATC. For the reasons given in respect of Ground 1, the defendant has failed to show on the evidence before this court a rational case for relying upon the “partnership judge” concept to any material extent, let alone as the determining factor. The defendant therefore cannot be heard to say that anything which may have happened earlier was necessarily irrelevant. In the claimant's case, it is of particular note that in 2014 he sentenced the perpetrator of the attack on a supermarket that he said was frequented by British Government officials.

Lord Murray submitted that paragraph 46 of the judgment of Lewis LJ assisted the defendant. There, Lewis LJ held that the contribution made by the institutions where the individual worked to the UK’s military and national security objectives was not likely to be relevant to whether the individual was working alongside etc a Government department. Lewis LJ considered that this was likely to be relevant in answering the next question; (or condition in Category 4 of ARAP); namely, whether, in the course of their work for the institution concerned, the individual made such a contribution. That is also the approach recently taken by Garnham J in R (AFA and others) v Secretary of State for the Home Department and another [2025] EWHC 2143 (Admin): see paragraphs 64 and 65.

I do not consider that this assists the defendant. On the contrary, it assists the claimant. In a particular case, the nature of the relationship between an institution in Afghanistan and a department of HMG might be of such a nature as to amount to a partnership and thus be sufficient to show that an individual working for the institution in such a partnership, satisfies the first requirement or “condition” of ARAP Category 4. But the individual would still fail in their application if their own contribution within the institution for which they worked did not make the required substantive and positive contribution. In the present case, the defendant never proceeded to address that second question or condition.

There is a further problem for the defendant under Ground 2. The case worker’s decision, read as a whole, leaves the reader unclear whether or to what extent the claimant’s account was accepted by the defendant. This is apparent from the outset of the case worker’s reasons, where it is said that the claimant's case “does not go beyond mere assertions.” Later, the case worker speaks of “assertions of working with the UK government and Armed Forces, along with receiving money from British officials...”. In short, it is unclear what, if anything, may have been believed. At best, the defendant has, I find, adopted what Julian Knowles J described at paragraph 172 of MP1 as “a kind of half way house approach” (see paragraph 36 above). Like Julian Knowles J, I consider this materially vitiates the present decision. An applicant faced with such a decision is left in doubt as to the case they need to meet in any judicial review. I do not consider that the post-decision evidence of Ms Ferguson can cure this problem. Her statement does not contain any explicit acceptance of any aspect of the claimant’s account.

For each of the above reasons, Ground 2 accordingly succeeds.