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

Following service of the defendant’s summary grounds of defence and further disclosure, the claimant’s solicitors sought details of other judges in the ATC. On 29 May 2025, the GLD wrote as follows:

“... 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)."...”

Christine Ferguson is Head of the Afghan Resettlement and Relocations Department in the FCDO. On 14 July 2025, she signed a witness statement in order to “address the FCDO’s relationship with judges in the Anti-Terrorism Court of Kabul, the role of the FCDO in informing the decisions on ARAP applications, which are taken by officials at the MoD, and the FCDO’s ARAP review assessment carried out for” the claimant.

Ms Ferguson deals first with the “history of HMG’s relationship” with the ATC:

“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.”

Ms Ferguson then addresses the evidence of NAR. She says that merely being a judge in Afghanistan is not sufficient to establish eligibility under ARAP. Each case depends on its particular facts. “Afghan judges have been granted leave under ARAP where they have worked in partnership with the UK and/or have been involved in sensitive cases of interest to the UK thereby making a substantive contribution towards the achievement of UK national security objectives. Although the Claimant states that he has tried cases related to counter-terrorism, he did so through his regular work as an Afghan judge in the Anti-Terrorism Court. This was not on behalf of HMG nor was it in partnership with or closely supporting and assisting the FCDO.” She continues:

“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.”

Ms Ferguson’s statement then addresses what she sees as the claimant’s role in the ATC:

“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.”

Ms Ferguson states she was not involved in producing the assessment of the claimant, which resulted in the second review decision. She has, however, reviewed it and discussed its contents and relevant materials with those involved in the case. Ms Ferguson quotes from the caseworker’s notes, where documentation from September 2021 was found, “which was used by the CT Team to consider potential ARAP candidates ... Further checks were made with former team members of the BFK CT Team ...”.

Defending the caseworker’s handling of NAR’s witness statement, Ms Ferguson says that the statement “is referenced multiple times. The assessor did not discount [NAR’s] statement, but noted the differing circumstances between the two individuals, which were material to the assessment.”

Ms Ferguson addresses the issue of reports made by ATC judges to the FCDO, as follows:

“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.”