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

The procedural backdrop to the present proceedings is materially irrelevant. The decision challenged by the claimant in this judicial review is the ARAP Eligibility Decision (Second Review Decision) dated 14 February 2025. The relevant part of the decision reads as follows:

“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.”

It is common ground that the challenged decision was informed by an assessment concluded by the FCDO on 6 February 2025 and passed to the defendant. The writer of the assessment said:

“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.”

Noting that the claimant “appears to admit he did not have a relationship with UK government officials”, the writer nevertheless investigated whether there could be such a link. “From searching FCDO records for information about the applicant, we found documentation dating from September 2021 which was used by the CT Team to consider potential ARAP candidates. The entry for [the claimant] shows that the BEK CT Team did not know of him.” The writer states that “Further checks were made with former team members of the BEK CT Team, who confirmed that at the time the applicant was working at the Kabul Anti-Terrorism court (up until April 2016), they would not have had reason to work with him.”

The FCDO assessment noted the evidence of NAR, mentioned above, that the contact with HMG officials concerned the Directors of the ATC, rather than its judges. The writer opines that “This part of his statement suggests that CT judges worked at a remove from HMG Personnel, as there was closer working between HMG and court managers.” As to NAR’s evidence generally, the assessment concluded that NAR’s case and that of the claimant “have distinct factual differences due to the dates each applicant worked at the Anti-Terrorism Court in Kabul… as well as the fact that [NAR] was known to the BEK CT Team, who supported endorsement of his relocation under the ARAP scheme.”

The assessment noted that the claimant had attended a number of training events, some of which were run under British auspices, including United Kingdom Rule of Law Training on public security judicial forensic awareness in 2013 and a two week course on Legal Skills for Judges of Courts Combatting Crimes Against Domestic and External Security in 2014. There was also a photograph, apparently taken in 2013 in connection with the Rule of Law Training of the claimant being presented with a training certificate by Carolyn Robson, who was the CT Senior Legal Advisor.. The writer of the assessment considered it significant, however, that it was the “Kabul Appeal Court” (sic) which was “responsible for allocating and sending judges to these training courses, not BEK nor any part of the FCDO. Considering that the training was only facilitated rather than provided by HMG and that some of the courses significantly pre-date [the claimant’s] appointment at the Kabul Anti- Terrorism Court., attendance at training courses lasting a short duration do not support Condition 1 being met.” The writer concluded that “I do not consider that there is anything in the applicant’s evidence to demonstrate he was working in Afghanistan alongside the FCDO, in partnership with or closely supporting and assisting the FCDO. Therefore, I do not consider that the applicant meets condition 1c for the FCDO in relation to his work in the Anti-Terrorism court in Kabul.”

The second review decision was informed by the FCDO assessment. The caseworker notes in respect of the second review decision have been disclosed by the defendant. Towards the beginning, there is a page setting out the additional information from the claimant on the “request for review” form. Amongst other matters, this records the submission on behalf of the claimant by his solicitors that “we cannot see any basis upon which the UK Government can properly distinguish [NAR’s] case from our client’s. Our client’s work at the ATC alone trying cases of terrorism clearly satisfies Conditions 1 and 2 of ARAP.” The submissions went on to say that the claimant had moved on to be Director of a District Court, where he continued efforts to uphold the rule of law.

The caseworker’s analysis was as follows:

“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 andits 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.”