MP1, R (on the application of) v Secretary of State for Defence

On behalf of the Claimant, Mr Seddon KC submitted as follows.

The Second Review Panel failed to consider relevant evidence, in particular, the Foxley report (Mr Seddon also referred to other evidence, but said the Foxley report was key). The Second Review Decision itself made no reference to it at all.

The Defendant’s position is not materially advanced by Ms Kalunga’s statement. This should be treated with caution because it was given only after the commencement of the claim when there is a natural tendency to bolster a decision under challenge – it is not admissible insofar as it seeks to provide new reasons or contradict those previously given (see further below) (Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin), [78]. Further, it will normally be impossible to assess the reasoning process of individual members (here, there were six): such a decision making process should be clear in the recorded decisions: R (Young) v Oxford City Council [2002] EWCA Civ 990, [20].

The bare recitation of the criteria in the ARAP was plainly insufficient to discharge the duty to provide reasons in a case such as this. The reasons given by Swift J in R (LND1) v Secretary of State for the Home Department [2023] EWHC 1795, [29]-[30], should be preferred to those of Lane J in R (CX1) v Secretary of State for Defence [2023] EWHC 284 (Admin), [65]-[76], on this point. Foxley and Patel gave clear evidence (above) about the alignment between the Claimant’s work with HMG’s mission. The Defendant did not challenge any of the Claimant’s evidence. What was missing from the Panel’s decision was engagement with the process of reasoning whereby those two matters were, on the evidence, aligned.

Further and additionally, Mr Seddon submitted that the Panel erred in that, having regard to the case set out, its failure to consider the evidence and to provide reasons disclose a decision that was unreasonable and irrational.

The ‘working alongside’ criteria did not require that the Claimant be employed by HMG, or that he directly interacted with members of HMG. Engagement in ‘significant activities which were closely aligned’ with the objectives of HMG (eg, ‘democracy building’) ought to have qualified him: CX1, [86]-[87]; [95]. It is the substance of the work undertaken, the nature of the institutions, and the contribution made to the military and national security objectives that are relevant.

The Panel failed to adopt the above approach. It directed itself instead to a search for a ‘substantive link’ or a ‘direct link’ to an UK Government Department (albeit the Claimant was in fact paid by the UK funded HPRT). Instead, it said that the Claimant did not ‘expressly detail the nature of support’ he provided, or give details of the cases or ‘individuals/officials’ from the HPRT he worked with, or give evidence of the specific ‘terrorist crimes’ he presided over; that he was supported ‘by’ the HPRT and not the other way around; and that there was ‘no evidence of any direct links to any government department’. This approach is erroneous as being in conflict with to the construction and approach adopted in LND1 and CX1. (Mr Brown KC told me that permission to appeal has been granted in LND1, and expedition ordered, however there is no decision at the time of writing this judgment. No-one suggested I should postpone this judgment pending the outcome of that appeal.)

The Panel also erred in failing to consider conditions 1 and 2 together (per LND1): it rejected the Claimant ‘as not meeting Condition 1(a, b, c). As the [Claimant] did not meet Condition 1, the remaining conditions were not assessed’. This required permission to amend the SFG, which I granted.

Mr Seddon said that, to the extent that it was relevant, Ms Kalunga’s approach compounded these errors.

In short, Mr Seddon said the Panel’s approach was ‘replete with error’.

On behalf of the Defendant, Mr Brown KC submitted as follows.

He made some preliminary points about the ARAP, pointing to the fact that it had been especially created under prerogative powers but was now part of the Rules. He said the Defendant had a broad discretion in setting the criteria and in applying the criteria. When challenged by me, he retreated and accepted that applying the criteria did not involve exercising a discretion, in the way that term is generally understood. The Panel’s task was an evaluative one. He referred to his client’s ‘institutional know-how’ and said the Review Panel was ‘specialist’. That said, he accepted that Review Panels ‘did get things wrong’, although this one had not. He also said there had been 128,000 applications under the ARAP and thus that there had to be a fair and proportionate system.

In relation to Ground 1A, Ms Kalunga said in her witness statement at [52] and [62] that the Panel considered all of the evidence which the Claimant alleges was not taken into account, including the Foxley report, and there is no reason to go behind that evidence. She was the Chair of the Panel.

In relation to Ground 1B, there was no obligation on the Defendant to provide detailed reasons. It was only necessary to provide reasons which allowed the Claimant to know what had been decided and why. The Claimant was well acquainted with the facts of his own case and thus there was no need to provide detailed reasons. Matters of weight were for the Panel’s assessment. Judicial review on the ground that the decision-maker failed to grapple with the issues should only be granted where there is evidence of a failure to consider relevant material, and that is not the case here. Ground 1B was linked to Ground 2 and both were the different sides of the same coin.

The Decision in the present case made clear: (a) the outcome, ie. that the Claimant was not eligible for relocation under the ARAP policy; and (b) the reason why, namely that the Claimant did not satisfy the relevant conditions under Category 4 of the ARAP policy. Mr Brown relied on CX1, upholding the use of pro forma documents in ARAP applications.

In relation to Ground 1C, Mr Brown accepted that this ground was symbiotic with Grounds 1A and B above, namely that a failure to consider the evidence and/or failure to give sufficient reasons is irrational.

Mr Brown said that there was no failure to consider the evidence, as attested to by Ms Kalunga, and that the reasons were sufficient to enable the Claimant to understand the outcome of the decision and the basis upon which that his application was rejected. There were therefore no grounds to claim that the Defendant acted irrationally.

In relation to Ground 2, conditions 1 and 2 had to be read separately. They were separate conditions (although there might be factual material relevant to both). Neither working as a defence lawyer nor a judge qualified the Claimant under condition 1. The NGO the Claimant worked for did not support or work closely with a UK Government department. Any links with the HPRT was insufficient. Specifically as to his employment as a judge, he had not supplied sufficient evidence of specific cases. Assessment of the weight of evidence was for the Panel.

As this case involves the interpretation and application of a policy, it is important to be clear at the outset about the relevant interpretive principles. I discussed some of these in R (KA) v Secretary of State for the Home Department [2022] 1 WLR 896, [149]-[151]. Lane J followed the KA approach in CX1, [80].

In Mahad (Ethiopia) v Entry Clearance Officer [2010] 1 WLR 48, Lord Brown said at [9] in relation to the Immigration Rules:

“The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy. The ECO's counsel readily accepted that what she meant in her written case by the proposition 'the question of interpretation is … what the Secretary of State intended his policy to be' was that the court's task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended. After all, under section 3(2) of the Immigration Act 1971, the Secretary of State has to lay the Rules before Parliament which then has the opportunity to disapprove them. True, as I observed in the MO (Nigeria) case, at para 33: 'the question is what the Secretary of State intended. The rules are her rules.' But that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations.”

In Raissi v Home Secretary [2006] QB 836, the headnote states at p837 (approving dicta of Lawton LJ in R v Criminal Injuries Compensation Board ex parte Webb [1987] QB 74, 78):

“… that the test to be applied in interpreting a ministerial policy statement was to ask what a reasonable and literate man's understanding of it would be, and not whether the meaning attributed by the minister to the words of the policy was a reasonable one; and that, accordingly, it was for the court to decide what the ex gratia scheme meant on the basis of what a reasonable and literate person would understand the circumstances to be in which he could be paid compensation under it”

In R (O) v Secretary of State for the Home Department [2016] 1 WLR 1717, [28], Lord Wilson said:

“… there is no dispute that the court's approach to the meaning of the policy is to determine it for itself and not to ask whether the meaning which the Home Secretary has attributed to it is reasonable ...”

In R (CX1) v Secretary of State for Defence [2024] EWHC 94 (Admin), where the Divisional Court considered the case following Lane J’s quashing of the original decision (hereafter, CX1 (DC)), Dingemans LJ said at [55]-[56]:

“55.

It is common ground that if there is a dispute about the interpretation of a policy such as ARAP, this is an objective question for the Court whose task is to decide what a reasonable person's understanding of the policy would be. This requires looking at the words used in the policy, taking the policy as a whole and in the light of its context and purpose, see Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48 at paragraph 10; R(O) v Secretary of State for the Home Department [2016] UKSC 19; [2016] 1 WLR 1717 at paragraph 28; and R(KA) v Secretary of State for the Home Department [2022] EWHC 2473 (Admin); [2023] 1 WLR 896 at paragraph 151.

56.

The background to the introduction of ARAP was analysed by Lang J in R (S) v Secretary of State for Foreign and Commonwealth and Development Affairs and others [2022] EWHC 1402 (Admin). In R(JZ) v The Secretary of State for the Home Department and others [2022] EWHC 2156 (Admin) Hill J addressed the claim of a judge who had been refused leave under ARAP and leave outside the rules. In the materials before the Court in that case was evidence that HMG had developed a partnership with some judges where judges had been resettled because of their role in presiding over terrorism trials.”

Hence, it follows that whether the Second Review Panel’s interpretation of the conditions in Category 4 was ‘reasonable’ is not the correct approach. The conditions in Category 4 have to be understood as meaning what a reasonable and literate person would understand them to mean, and determining that meaning is a matter for the court. This is consistent with what Swift J said in LND1¸[9]:

“The words of the ARAP should be applied in accordance with their ordinary meaning having regard to the context in which the words are used.”

Thus, to the extent that the Secretary of State suggested that it was enough that the Second Review Panel’s interpretation of the conditions in the ARAP was ‘reasonable’ – and he expressly did so in his Skeleton Argument at [35(7)] (‘… it is clear that the decision maker’s interpretation and application of the criteria are reasonable’) was wrong. In fairness to Mr Brown, he accepted orally that the KA approach was the right one. This point is important because, as I shall show, both the Second Review Panel and Ms Kalunga put an unwarranted gloss on the meaning of the conditions in Category 4.

Other points are as follows which, in KA, [151], I said that I agreed with: (a) individual words and expressions must be not be construed artificially: the exercise is to discern objectively the true object and intent of the policy; (b) in addition, the principle that policy should be construed in its proper context means that, when seeking to construe particular words and expressions within policy, regard must be had to the policy as a whole and the context in which those words and expressions were chosen; (c) context is particularly important as an aid to interpretation where the words used are either ambiguous or a term of art: cf Tesco Stores Ltd v Dundee City Council [2012] PTSR 983, [21].

As to the particular context of the relevant parts of the ARAP, Swift J said in LND1, [11], in relation to condition 1 in Category 4:

“As to what is the proper approach to and meaning of the provision, context is important. The context is provided by the two preceding paragraphs in the Condition, each of which rests on some form of established contractual connection between the applicant and the United Kingdom government department. Set against those provisions, the notion of ‘working alongside’ is intended to capture a further category of applicant whose connection with a United Kingdom government department is measured by some form of qualitative yardstick. That being so, considering the rubric in its totality seems better likely to capture all members of the intended category than an approach that rests on breaking it down into one or more constituent parts.”

Specifically in relation to the interpretation of condition 1, in CX1, [85], Lane J said:

“I am in no doubt that Mr Blundell is correct in his submission that (taking the iteration of the policy in paragraph 276BB5 of the Immigration Rules), in order to satisfy sub-paragraph (c) of condition 1, the person concerned must have worked in Afghanistan alongside a UK government department either (i) in partnership with it; or (ii) closely supporting and assisting it. As a general matter, independent journalists may find it difficult to satisfy this aspect of condition 1.”

I am content to adopt the same approach in this case.

Lane J also said at [86] (my emphasis):

“There was debate concerning what is meant by having ‘worked ... alongside …’. At one extreme, merely having been physically alongside, say, a UK military unit as a result of sharing a ride with that unit to the front line, is very likely to be insufficient. On the other hand, a pattern of travelling and living (or being embedded) with British military units may be different, as may significant activities which were closely aligned with the ‘democracy-building’ activities of an HMG department. In every case, it will, of course, still be necessary to meet the other requirements of category 4.”

Again, I agree, and find his dictum that ‘significant activities which were closely aligned with the ‘democracy-building’ activities of an HMG department’ may be sufficient, to be especially pertinent.

At [87] he said about condition 2 (my emphasis):

“Condition 2 of category 4 requires the person, in the course of their work etc, to have made a substantive and positive contribution towards the achievement of the UK government's military objectives or the UK government's national security objectives. Mr Blundell questioned whether, conceptually, Afghan journalists could satisfy condition 2. Again, I accept that, as a general matter, they are likely to find it difficult to do so. However, the provision of intelligence, such as was highlighted in the 18 August 2021 submission, is clearly a way in which condition 2 could be satisfied, subject to this having the necessary substantive and positive qualities. More broadly, national security objectives (which are not exhaustively defined in terms of counterterrorism etc) could properly include significant contributions to the building of democratic, open and transparent systems, as well as informing the Afghan population of such things as the corruption of the Taliban. All of this could be done by an independent journalist, working for the BBC.”

I think these grounds of challenge can be taken together.

By way of preliminary point, it is right that just because someone was a judge of whatever type in Afghanistan prior to 2021 does not of itself qualify him or her for relocation under Category 4 of the ARAP. Hill J said in AZ, [35]:

“There is no statement or principle that the status of being an Afghan judge is sufficient to establish eligibility under ARAP. Afghan judges may be eligible under ARAP, but whether they are in fact eligible depends on a case-specific evaluation of the individual facts: S and AZ at [103].”

I was taken to various passages in JZ, however it was concerned with a different version of the ARAP to the one I am concerned with, and the arguments related to a suggested difference in treatment between the judge in that case and comparator cases, which was not an issue before me. Thus, I did not find it to be of particular assistance on what I have to decide (although some of the general points made in it were helpful).

The second preliminary point, and this was common ground, is that whether the Panel’s process (including the giving of reasons) was fair is to be determined by the court; it is not whether what was done was reasonable. In R (Osborn) v Parole Board [2014] AC 1115 the Supreme Court confirmed the proposition that the test for whether there has been procedural fairness or not is an objective question for the court to decide for itself. The court’s function is ‘not merely to review the reasonableness of the decision-maker’s judgment of what fairness required’ : see [65] per Lord Reed.

I am prepared to accept on the basis of Ms Kalunga’s evidence that, as a matter of fact, the members of the Second Review Panel had the Claimant’s evidence and in particular the Foxley report available to it, in the sense that it was held in a form which the members could access - if they chose to. As I said in argument, I accept it did not stay in a box, without the Panel ‘having taken the wrapping off.’

However, in my judgment, the general picture which emerges from Ms Kalunga’s account of how the Claimant’s case was dealt with is that although Panel members had access in theory to the evidence, in practice it was left to them individually to decide how they prepared for the hearing, and what they did - or did not - read. For example, she said at [41], [43]:

“41.

The Panel discussion having commenced, it was expected that the panel members were ready and willing to deliberate. The Panel discussed the case, citing various issues of interest according to each individual’s assessment of the Applicant’s eligibility. It is for each Panel member to raise a matter, agree or object and/or to incite further discussions. Panel members worked from their own notes and investigatory findings to present their individual questions and concerns to the Panel for consideration or comment …

…

43.

For the purpose of a review, invited Panel members were given the Caseworker’s Review Panel Notes to read and to independently investigate the DACS system for the Claimant’s application review …”

Then, at [52]-[54] of her statement Ms Kalunga said:

“52.

… The panel assessed all of the information held on file for the Claimant, including several media posts and various immigration/relocation policy references submitted by the Claimant and their representatives (sic), but could not determine a substantive link to any UK government department nor could they find evidence of a direct link to His Majesty’s Government.

53.

The purpose of the ARAP policy, specifically under Category 4, is to assist Afghan citizens who contributed to the UK military objectives and national security objectives in Afghanistan. It was considered that the Claimant, whilst being an Afghan citizen, did not work for or with the UK Government in Afghanistan in an exposed or meaningful role and therefore did not meet the threshold criteria; as such, no offer of relocation to the UK could be made and he was deemed ineligible.

54.

The Review Panel Notes provided comprehensive extracts taken from the Claimant’s P-Files. This included a quote relating to the Foxley Report cited in the Claimant’s statement of Facts and Grounds. Mr Foxley was discussed in terms of his self-regard as an ‘expert’ and whether the information provided had, or could be, validated. All Panel members confirmed they had read the Foxley Report and were therefore able to comment upon it and consider its contents as part of their assessment process. It was mentioned that this report was, in part, based on personal opinion and what was believed to be the case, so it was considered as to what degree it could be relied upon as conclusive evidence of fact. The consensus of opinion was that the Foxley Report must be considered but collaborating evidence should be sought to substantiate its assertions.”

I find Ms Kalunga’s assertion that the Panel ‘assessed all of the information held on file for the Claimant’ difficult to reconcile with her earlier account of the methodology used, which was that it was for individual Panel members to decide what they read and for them individually to decide what they subsequently raised in the meeting. It is also difficult to reconcile with the absence in the Review Panel’s Notes of any reference to Mr Foxley’s evidence, which plainly called for reasoned conclusions if the Claimant’s case was to be properly assessed against the criteria in Category 4. I therefore place little weight upon Ms Kalunga’s evidence.

If the Foxley report had been considered by the Panel en banc as Ms Kalunga suggests it was, I would have expected it to have been referred to expressly in the Panel’s Decision Notes. I therefore conclude that if it was discussed (‘assessed’), it could only have been in the most perfunctory of terms, and it was not discussed or considered in a way which was legally sufficient. True it is, as Mr Brown said, there were 1200 pages of material before Panel, and what weight to be attached to any given piece of evidence was a matter for its judgment. However, Mr Foxley is a well-recognised and well-regarded expert; his evidence was lengthy, detailed and referenced; it was bespoke to the Claimant’s case; and it contained very important information. It therefore required proper consideration and analysis, even if not in a lengthy way.

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.”

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 …”

I turn to Ground 1B. In judging the Claimant’s reasons challenge, the material to be considered as constituting the Panel’s reasons are its pro forma letter; the Notes of its meeting; and Ms Kalunga’s evidence, to the extent that the latter it is admissible and not contradictory of the contemporaneous documents. The question for me is whether these reasons, taken together, were legally adequate. The Panel’s notes were disclosed by the Defendant on 2 June 2023 in response to the Claimant’s letter before action complaining about a lack of reasons in the pro forma letter, in the following terms:

“In any event, the SSD is prepared to disclose the review panel notes for your client which have been enclosed with this letter. The enclosed panel notes shows that the Defendant carefully considered the Claimant’s evidence and concluded that the Claimant is not eligible as he does not meet the criteria for relocation under Category 1, 2 or 4 of ARAP.”

Hence, the notes stand as part of the Panel’s reasons and they stand or fall on that basis. They are a near contemporaneous record of the Panel’s discussion (albeit supplied later).

It follows that it is not necessary for me to resolve the issue of whether the Second Review Panel’s pro forma document, by itself, would have been sufficient. As I said earlier, that is an issue on which Lane J in CX1, [65]-[72], and Swift J in LND1, [29]-30], differed. However, had it been necessary to do so, I would have preferred the reasoning of Swift J, and in particular this passage at [30] of his judgment:

“30.

… Under the ARAP scheme, the eligibility criteria are such that each decision is an assessment of information that an applicant has provided about himself: of matters such as the work he undertook, the circumstance under which the work was performed, and the consequences in terms of personal safety for the applicant of having performed that work. Decisions that turn on the assessment of matters of this sort, of an applicant's personal circumstances set against criteria that are incapable of mechanical application, ordinarily attract an obligation to give reasons so a disappointed applicant can understand why the case he has put forward has not been sufficient to meet the criteria set for a successful application. In that sort of context, reasons are an essential element of the obligation to act fairly; they allow the applicant to be satisfied his application has been considered on its merits, and to decide whether any further avenue may be open – in this instance the opportunity to decide whether a review of the decision should be pursued. All this weighs heavily in favour of the conclusion that reasons should be provided. The reasons given do not need to be elaborate or lengthy, but I see significant force in the contention that in this case they do need to go further than the statements contained in the pro-forma letter, which come to no more than that the application has been weighed in the balance but has been found wanting, statements that provide nothing by way of explanation for the conclusion reached. Moreover, in the present context there is no question but that before the pro-forma letters were sent out each application was considered on its own merits. Therefore, it is only the burden of translating the reasons for the decisions that weighs against a conclusion that more specific reasons than those in the pro-forma letter should be provided. Had it been necessary for me to decide the matter, I would have concluded that reasons beyond the bare statements in the pro-forma letter should have been given. Those reasons could have been brief, but they should have provided the sense of the reason why the matters relied on in support of the application had not met the one or more of the eligibility requirements.”

But as I have said, this issue does not arise. Because the Defendant has chosen to give reasons going beyond the pro forma document (whether or not he was required in law to do so), those reasons have to be legally sufficient: see eg R v Criminal Injuries Compensation Board ex parte Moore [1999] All ER 90, 94:

“… since reasons were given in the present case, it is not necessary to decide whether there was a legal obligation to give them. Once given, their adequacy falls to be tested by the same criteria as if they were obligatory. The critical question is, therefore, whether reasons given orally are legally adequate.”

The general standard of reasoning that is required is well known. It was explained by Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, [36]. The reasons relied on must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved and giving rise to no substantial doubt as to whether the decision-maker erred in law. The obligation is to give appropriate reasons having regard to the circumstances of the case: R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88, [24].

The importance of appropriate and sufficient reasons resides not only in the ability to challenge a decision (and to make further representations) but also because: they concentrate the mind of the decision-maker: Osborn, [67]; they avoid a sense of injustice: Ibid, [68]; and they augment public confidence: Stefan v General Medical Council [1999] 1 WLR 1293, 1300. Also, they enable the reviewing court to be confident that no error has been committed: Alibkhiet v London Borough of Brent [2018] EWCA 2742, [51].

The context of this case requires that I anxiously scrutinise the Defendant’s reasons. In other words, I have to apply a more intense standard of review than might be applied in other contexts. That is because an adverse decision may put the Claimant’s and his family’s lives at risk. That is clear from Mr Foxley’s evidence and the Claimant’s own evidence. He said at [25]-[26] of his first statement:

“25.

I am struggling a lot and my wife and children now have a very hard life. What we are going through is very difficult. The situation here is much worse than the Taliban are admitting to publicly. We are aware of constant killings and assassinations and terror. The media and the journalists have no access to this and so it is not being properly reported.

26.

… As a Chief Judge I know I will be killed and my family too.”

Although the Claimant and his family were able to get to a third country to stay with relatives, there is always the risk that they may be forcibly returned to Afghanistan by the authorities of that country: Skeleton Argument, [70]-[72]. I will return to this later.

In R (MN) v Secretary of State for the Home Department [2021] 1 WLR 1956, [242], the Court of Appeal said:

“242.

There was no real dispute before us as to the nature of the scrutiny required in a case of this kind. Although, strictly, we are concerned only with the court’s scrutiny of the original decision, the starting-point must be the standard of reasoning required in the decision itself. As to that, it is clear that a high quality of reasoning is required in a conclusive grounds decision, which engages fully with the case advanced by the putative victim of trafficking. Sir James Eadie and Mr Irwin acknowledged that expressly in their skeleton argument, citing the judgments of Dove J in R (FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin) (see para 27) and of this court in R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448, where Carnwath LJ refers to the “need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account” (see para 24 of his judgment). This is for obvious reasons. A conclusive grounds decision is very important for the putative victim: we have described above some of the rights to which an established victim of trafficking becomes entitled. Although the potential consequences of a wrong conclusive grounds decision are not generally comparable in terms of gravity to the risk to a victim of persecution if wrongly returned to their country of origin, these are nonetheless gateway decisions that relate to important rights. But the decision is also likely to influence the decision of the state whether to pursue a prosecution against alleged traffickers. The requirement for a high standard of reasoning is all the more important given that in general the decision-making process is a primarily paper exercise conducted by a caseworker, albeit one who is required by ECAT to be ‘trained and qualified in preventing and combating trafficking in human beings’”.

Also relevant is R (BAL and others) v Secretary of State for Defence and another [2022] EWHC 2757 (Admin), which concerned the family members of an Afghan judge. The judge and his wife were given relocation to the UK under the ARAP but their offspring's applications for discretionary LOTR were refused. In that context, Steyn J said:

“85.

There is no dispute as to the applicable principles. It is not for the court to stand in the shoes of the decision-maker and substitute its own view. A decision may be held to be 'irrational' where the decision is outside the range of reasonable decisions open to the decision-maker. Or a decision may fail the test of rationality because the reasoning process is flawed so as to rob the decision of logic. The 'common law no longer insists on a single, uniform standard of rationality review based on the virtually unattainable test stated in the Wednesbury case [1948] 1 KB 223'; the Supreme Court has 'endorsed a flexible approach to principles of judicial review, particularly where important rights are at stake': Pham v Secretary of State for the Home Department [2015] 1 WLR 1591, Lord Carnwath JSC at [60], Lord Mance JSC at [98], and Lord Sumption JSC at [109]- [110].

86.

In R v Secretary of State for the Home Department ex parte Bugdaycay [1987] 1 AC 514, Lord Bridge observed at 531F-G: ‘The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny.

87.

It is common ground that in this case, which concerns the risk that the second to fifth claimants will lose their lives, or be subjected to torture or other serious harm, if they are not able to join their parents in the UK, the court is required to scrutinise keenly the application of the policy to them and the reasons given for the challenged decisions.”

In R (MKA) v Secretary of State for the Home Department [2023] EWHC 1164 (Admin), [32], [50]-[52], another decision on the ARAP, Foster J said:

“32.

The Claimant relies upon the explanation of Saini J in R v (Wells) v Parole Board [2019] EWHC ACD 146 as to the interface of a rationality challenge with a reasons challenge. It involves asking the central question: can the conclusion reached be safely justified on the evidence before it – or the evidence that should have been before it, and his observation that an unreasonable decision is also often a decision which fails to provide reasons justifying the conclusion. Reliance is also placed on Saini J's reminder that case context may require anxious scrutiny – and the present case was admitted to be one such.

…

50.

I accept as submitted by the Defendant that the obligations as to giving of reasons will be conditioned by context. The relevant features of the ARAP are not equivalent to hearing evidence, resulting in a judicial or quasi-judicial decision, it is a discretion-based scheme, and it is necessarily reasonably expedited. Judgements of fact and degree must be made and it may not be possible to give detailed reasons or any developed explanation about why as a matter of judgement a person falls to one side of a policy line rather than another.

51.

However, the expedited process and the fact that the scheme was discretionary does not displace a duty of procedural fairness (see R (Citizens UK) v SSHD [2018] EWCA Civ 1812 at [86]). It is well established that the question as to whether there has been procedural unfairness is an objective question for the Court not just a review of the reasonableness of the decision maker's view of what fairness requires: see R (Osborn) v Parole Board [2014] AC 1115, per Lord Reed [65].

52.

I recognise also that there is no universal obligation on public law decision-makers to give reasons for their decisions in all circumstances (Stefan v General Medical Council [1999] 1 WLR 1293 at 1300; R (Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1312 at [19] and [21]; R (Lee-Hirons) v Secretary of State for Justice [2014] EWCA Civ 553). The context is relevant to determine the scope and the detail of the reasoning and what coherent reasoning would consist in, in a case such as this. The consequences for the Claimant are, on his case extreme, nonetheless this does not in my view require in the particular circumstances of the ARAP scheme, the detailed reasoning of an ordinary immigration decision in this context: nor did the Claimant, realistically, argue for such. It is agreed the duty to give reasons is attenuated. The pressure of time, the volume of applications, and the extreme situations pertaining to certain applicants will all contribute to short, sharp decisions; nonetheless coherent reasoning is in my judgement required even if in short form.”

Applying these standards, the reasons put forward by the Defendant to justify the Second Review Decision are, in my view, manifestly inadequate.

The key question which needed to be considered by the Second Review Panel in relation to condition 1 in Category 4 was whether the Claimant worked in Afghanistan ‘alongside an HMG department, in partnership with or closely supporting that department’. Per Lane J in CX1, the Claimant will satisfy this condition if he performed significant activities which were closely aligned with the ‘democracy-building’ activities of the UK Government.

Mr Foxley’s evidence about the Afghan judiciary’s role in rebuilding and stabilising Afghanistan after 2001 (summarised in full earlier), although lengthy and closely reasoned with multiple footnotes, was in reality straightforward, and can be summarised in the following steps:

It is relevant here to quote another passage from S, [19]-[25], in which Mr Foxley also gave expert evidence:

“The UK's role in promoting the rule of law in Afghanistan

19.

A joint governmental policy paper, published on 14 January 2014, described the extensive development aid projects, supported and funded by the UK and its partner nations, in Afghanistan. It describes the UK's work to support and build more accountable and democratic institutions, including a written constitution and a democratic government, at both national and local levels. The paper stated:

‘Across Afghanistan the UK continues to support legal and institutional reform and invests in training, including on human rights.’

20.

It described in particular the introduction of an effective justice system in Helmand Province, where British troops were stationed. Prior to 2006, Helmand had no effective formal justice system. It explained that:

‘As the Afghan justice system was unable to demonstrate its credibility by resolving disputes, the Taliban filled this vacuum. Their informal system was severe, including barbaric punishments such as amputation.’

21.

Mr Foxley describes the UK's engagement with the Afghan courts and the judiciary, at paragraphs 52 to 58 of his witness statement. Rule of law initiatives included financial support for training of judges; developing capacity for the successful investigation and prosecution of terrorism; establishing the Anti-Corruption Justice Centre to investigate and prosecute serious corruption cases; establishing the Criminal Justice Task Force to prosecute drug-related crimes; and ongoing mentoring and training for judges and prosecutors.

22.

Mr Foxley states, at paragraph 27, that, although there was always a major British diplomatic, civilian, military and administrative presence in Kabul, it did not mean that the UK was solely focused on developing Kabul at the expense of the rest of the country. It is evident that the goal of the UK and its NATO allies was to implement a reformed justice system across Afghanistan.

23.

The importance of the work of the Afghan justice system to the UK's mission and operations in Afghanistan was acknowledged by the UK Government in "The UK and Afghanistan", published by the House of Lords Select Committee on International Relations and Defence Government Response 12 March 2021:

‘Since 2001, the UK has provided significant support to the people of Afghanistan; this has in turn helped to protect the UK…The Afghan government has the capability to lawfully investigate and prosecute terrorism, organised crime and corruption. These gains have been achieved through a decade of multinational investment and are designed to operate alongside wider initiatives to address economic reform, poverty and agriculture. A loss of these capabilities would be irreversible and undermine any UK or international efforts to strengthen the Afghan state.’

24.

As Mr Foxley observes at paragraph 73:

‘Without a justice system, Afghanistan's security situation would have deteriorated further and quicker. Confidence in governance would have evaporated. Local groups – Taliban, Islamic State and warlords – would have filled the justice "vacuum". International forces would not have been capable of running a justice system and would have increasingly been viewed as an occupying force if they had tried. The UK's presence in Afghanistan would have been untenable and the mission – stabilising Afghanistan and rebuilding the government structures - would have failed. The risk to the UK mainland from terrorism, narco-trafficking and illegal migration would have increased."

25.

However, there were risks for judges involved in implementing an effective justice system in Afghanistan, as Mr Foxley describes at paragraph 72:

‘The work of Afghan judges – particularly those who worked on terrorism, counter-narcotics and security matters – was difficult and very dangerous because the Taliban and other insurgent groups were hostile to the prosecution of their fighters and also opposed to the justice system being established. Other groups, such as warlords and corrupt government officials, were also benefiting from the narcotics trade and other criminal activities. Judges were targeted by the Taliban for assassination ...’”

Turning to the Claimant specifically, Mr Foxley directly addressed what I have called the key issue at [33]-[36], in response to a question from the Claimant’s solicitors:

“In your opinion did members of the Justice system - in particular our client as firstly district Judge in Helmand, then Judge in the City Court Penal Section dealing with a wide range of violent crimes, then in Lashkar Gash Appeal Court dealing with public security cases, drug smuggling, kidnapping, administrative corruption and terrorist crimes including cases of terrorism perpetrated by the Taliban and Daesh and finally as Chief Judge in Lashkar Gash Primary Court again dealing with public security cases as well as a range of other serious cases– work alongside a UK government Department, in partnership with or closely supporting it.

33.

Three main HMG ministries were involved in Afghanistan during the 2001 – 2021 timeframe. There was a lot of overlap and inter-departmental collaboration on activities over these years and other government ministries had smaller-scale engagements in Afghanistan as well. The Ministry of Defence led on the major war-fighting and counter-terrorism aspects, including the training and development of Afghan security forces. The Foreign and Commonwealth Office and the Department for International Development (which were merged in 2020 to form the Foreign, Commonwealth and Development Office - FCDO) addressed developmental aspects, including governance, rule of law, justice, democracy, women’s rights, aid and reconstruction. The British Embassy in Kabul was a major hub for delivery of FCO and DFID objectives.

34.

During the period 2008 to 2014, the UK security effort was closely focused on Helmand province, in southern Afghanistan. From the information your client has provided, and based on the information detailed and cited above, I believe his work closely supported and assisted UK government activities in stabilising Afghanistan and helping to secure rule of law across the country. It is harder to be more confident as to whether he specifically worked alongside any given UK government department, but he states that he was supported by the UK-led Provincial Reconstruction Team (PRT) in Helmand. The UK PRT was a mixed multi-national military-civilian group “helping the Afghan Government establish improved governance and development across Helmand Province”. During the life of the PRT, several British government ministries and departments were involved, including the MOD, FCO, DFID and the Stabilisation Unit.

35.

In Helmand, the UK gave significant support and mentoring to justice sector and rule of law initiatives at the local level:

‘In Helmand Province, we improved access to the state-administered justice sector through a range of initiatives. We provided ongoing mentoring and case-tracking support to judges, prosecutors and huquq representatives who form part of the Ministry of Justice, coupled with salary support and performance management for prosecutors. In addition, we provided training for legal professionals on criminal procedure, judicial ethics and fair trials and funded Helmand’s only ‘publicly funded’ lawyers to provide criminal defence representation.’

36.

It seems very plausible, therefore, that your client worked alongside or in support of a range of UK departments during his time in Helmand and supported efforts to achieve the UK mission in Helmand.”

From all of this, it seems to me that even looking at condition 1 in isolation (which is not the correct approach, as I shall discuss later), it is self-evident that the Claimant worked alongside an HMG department, in partnership with or closely supporting that department, and so satisfied that condition.

That is because: by being willing to work as an Afghan judge (a role many others would not do) he personally and directly contributed to the furtherance of the rule of law in Afghanistan, which was a key aspect of HMG’s mission there; the FCO and DFID (merged in 2020) was particularly concerned to ensure the fulfilment of that goal, and worked in Afghanistan to achieve it; the Claimant therefore ‘supported’ the FCO in achieving its aim by working as a judge; and as the FCO and he were working towards achieving the same goal, he worked ‘alongside’ them. Furthermore, officials from different departments from HMG headed the HPRT. In short, he satisfied Lane J’s test in CX1.

I am reinforced in the self-evident nature of this conclusion by LND1, [22]. In that case the claimant worked for a time as an anti-terrorist judge in in the Kabul Terrorism Court. At [22] Swift J referred to:

“… a rather obvious point, that the work of the judges of that court directly affected and supported the United Kingdom's natural security objectives in Afghanistan.”

In my judgment, no distinction in this case can or should be drawn between LND1 working in a specialist terrorism court and the Claimant, who presided over both terrorist and narcotic cases, as well as other types of case in Helmand Province.

The Second Review Panel did not grapple or address these issues and its reasoning was plainly faulty. Some key points that strike me are as follows.

Firstly, as I have already noted, and as Mr Brown conceded, it did not refer at all to Mr Foxley’s evidence and so did not explain why, for example, it did not accept the conclusions at [33]-[36] of his report which were in terms that the Claimant satisfied condition 1, or other important parts of his report, such as [62]. As I have noted, Ms Kalunga (three months later, ex post facto and after this claim was launched) says that the Panel considered his report. Given I have to adopt the anxious scrutiny test, I cannot attach much weight to her assertions for the reasons I have already given.

Second, the Panel did not explain why working as a judge to uphold the rule of law in furtherance of the FCO’s goals, which had officials on the ground in Afghanistan working on it as part of the HPRT and otherwise, was not sufficient to count as working ‘alongside’ and in ‘support’ of one of HMG’s departments. There is scant reference to the rule of law having been one of HMG’s key goals, nor any recognition of the role that an assiduous judge like the Claimant played in upholding the rule of law in terrorist cases and other serious criminal cases which engaged with HMG’s mission. By doing the job they do, judges fulfilling the role which the Claimant fulfilled, upheld and developed the rule of law in furtherance of HMG’s mission. I note the Lord Chancellor’s reply to Lord Carlile QC and Lord Anderson QC quoted in the Law Society Gazette in August 2021:

“Afghan judges are eligible to relocate to the UK due to their close work with the UK government and immediate threat to safety, the Lord Chancellor [Sir Robert Buckland MP] has confirmed.

Several leading voices in the profession, including the profession's representative bodies and former Supreme Court president Baroness Hale, have expressed concern for the safety of judges, particularly women judges, who are now under Taliban rule.

In a letter yesterday to Lord Carlile of Berriew CBE QC and Lord Anderson of Ipswich KBE QC, both former independent reviewers of terrorism legislation, Robert Buckland said he aimed to do all he can to protect Afghan judges ‘in recognition of their dedication to establishing and protecting the rule of law in the country’.

Buckland said: ‘Legal professionals in Afghanistan have done this in the face of risks to their personal safety and that of their families, with particularly grave risks to the lives of female members of the judiciary and it is right that we do what we can to help them.”

Third, the Panel said it had not been able to determine a ‘substantive link’ or a ‘direct link’ between the Claimant and any UK Government department. There are two points here: (a) it did not explain what it meant by ‘substantive link’ or ‘direct link’; and (b) those phrases are not used in condition 1, or anywhere in Category 4, and in my judgment are more restrictive. These were therefore self-misdirections by the Panel on an absolutely key issue.

Earlier versions of the ARAP required something in the nature of a formal link between the applicant and HMG (eg, an employment contract). Mr Seddon said, and I agree, that later versions of the ARAP relaxed or removed this sort of requirement, and the ARAP began to be cast more in terms of a qualitative or functional assessment of what the applicant had done in Afghanistan.

Thus, the version of the policy in force immediately before the one applicable to the Claimant (quoted in S at [60]), defined the cohort eligible for assistance under Category 4 as being ‘those who worked in meaningful enabling roles alongside HMG, in extraordinary and unconventional contexts’. Hence, the Panel’s approach of requiring a ‘substantive’ or ‘direct’ link seems to me to go against the grain of the changes in the wording of ARAP up to 2022.

Fourth, 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.

In short, unless the Panel was minded to accept the Claimant’s account, then fairness and proper decision making required that its concerns be put to the Claimant. In R v Hackney London Borough Council, ex p Decordova (1995) 27 HLR 108, 113, Laws J said, in the context of a housing decision but by reference to immigration law as well:

“In my judgment where an authority lock, stock and barrel is minded to disbelieve an account given by an applicant for housing where the circumstances described in the account are critical to the issue whether the authority ought to offer accommodation in a particular area, they are bound to put to the applicant in interview, or by some appropriate means, the matters that concern them. This must now surely be elementary law in relation to the function of decision-makers in relation to subject matter of this kind. It applies in the law of immigration, and generally where public authorities have to make decisions which affect the rights of individual persons. If the authority is minded to make an adverse decision because it does not believe the account given by the applicant, it has to give the applicant an opportunity to deal with it.”

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. The evidence that the Claimant had worked as a judge was detailed and uncontradicted. He gave the names of the courts where he had served in Helmand and the positions he had held. All of that was verifiable by the Defendant and was, or ought to have been, sufficient for the Panel’s purposes. Once it concluded, as it should have done, that the Claimant had indeed worked as senior judge handling terrorist, narcotics and corruption cases for a significant period up to 2021, then it should have gone on to assess the evidence properly.

It is no answer to this point to say that making inquiries would have imposed an impossible burden on the DARR. Indeed, Mr Brown expressly accepted that the Panel could have asked for further information. The Claimant’s solicitors had been asked for further information on other matters by DARR earlier in the process, and the Panel could therefore have asked for details of particular cases – especially as the Claimant had already been turned down twice in the initial decision of 30 March 2022 and then by the (first) Review Panel. Furthermore, as Ms Kalunga herself said at [34]:

“34.

Should there be any ambiguity as to the facts or where there is insufficient evidence to consider a case, it may be postponed pending further investigation by the Review Panel Caseworker and re-considered at a later date. It is for each Panel member to raise any objections and bring to the fore those evidential pieces from the files that both support and/or dispute a case.”

Nor do I accept Mr Brown’s oral ‘straw man’ argument that the Panel could not have been expected to have go into every facet of the evidence. That is not suggested by the Claimant (and was not being suggested by me orally). The position here was that the Panel had identified an issue with the evidence, which was important enough to be one of the few things it did mention in its Notes. It was therefore important enough that, as a matter of fairness, it should have been put to the Claimant. As I put to Mr Brown, and he did not disagree, an email could have been sent to the Claimant’s solicitors asking for examples of specific cases to be supplied within (say) seven days, in default of which the application would be dealt with on the existing material.

Fifth, Ms Kalunga’s statement at [54] shows that the Panel did not appear to properly understand the nature of Mr Foxley’s evidence and so did not assess it correctly (if indeed it did so at all). She said:

“54.

The Review Panel Notes provided comprehensive extracts taken from the Claimant’s P-Files. This included a quote relating to the Foxley Report cited in the Claimant’s statement of Facts and Grounds. Mr Foxley was discussed in terms of his self-regard as an ‘expert’ and whether the information provided had, or could be, validated. All Panel members confirmed they had read the Foxley Report and were therefore able to comment upon it and consider its contents as part of their assessment process. It was mentioned that this report was, in part, based on personal opinion and what was believed to be the case, so it was considered as to what degree it could be relied upon as conclusive evidence of fact. The consensus of opinion was that the Foxley Report must be considered but collaborating evidence should be sought to substantiate its assertions.”

Mr Foxley was not a witness of fact and did not claim to be. He was an expert witness. He clearly explained the basis upon which he was giving evidence at [1]-[7] of his report. As an expert witness, he was allowed to express opinions. That is what experts do, but factual witnesses generally do not. Hence, the Panel’s sentence, ‘It was mentioned that this report was, in part, based on personal opinion and what was believed to be the case, so it was considered as to what degree it could be relied upon as conclusive evidence of fact’ shows the Panel misunderstood his evidence. Mr Foxley could not say, and did not purport to say, that what the Claimant was saying he had done as a judge was true: see at [34]: ‘From the information your client has provided …’. His approach was thus to express opinions in light of his expertise, if the factual material he had been supplied with were true. He did not usurp the Panel’s function of deciding whether it was true. His methodology was therefore entirely orthodox and correct. And his report contained many citations to the source material on which his opinions were based. No further ‘collaborating evidence’ was therefore necessary, as the Panel wrongly believed.

Sixth, I accept that weight of evidence was a matter for the Panel. However, that is subject to its assessment being reasonable. The Panel’s conclusion that the Claimant had not provided ‘specific details of how [he] contributed to the UK’s counter-terrorism mission in Afghanistan (in his position of Judge or any other of the judiciary roles mentioned)’ was one which was not reasonably open to it on the evidence, and was wrong. Again, there are a number of points that can be made. Firstly, as Swift J said in LND1, it is ‘obvious’ that fairly and assiduously judging terrorist cases – and so ensuring that the guilty were convicted and the innocent acquitted – contributed to HMG’s counter-terrorist and national security mission. Second, by working as a defence lawyer and judge (not just on terrorist cases), the Claimant contributed to upholding the rule of law more generally, which was one of HMG’s strategic objectives (and of which counter-terrorism was just one component). As I said earlier, this follows ipso facto from being a judge dealing with serious cases (and also a defence lawyer). Third, the Claimant’s witness statement was as specific as to details as it could be, given the circumstances the Claimant was then living (in hiding and in fear of his and his family’s life and barely surviving).

Seventh, the Panel’s conclusion that ‘the Applicant being supported by a UK Government department is not necessarily the same as the Applicant working in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department …’ was semantic hair splitting. The question was whether the evidence provided by this Claimant as to what he did showed that as well as being supported by a department, he provided support to it. For the reasons set out earlier, he obviously did. Mr Brown fairly accepted this aspect of the Panel’s reasoning was flawed.

Eighth, Ms Kalunga’s summary of the Panel’s reasons concluded at [52] of her statement:

“The panel assessed all of the information held on file for the Claimant … but could not determine a substantive link to any UK government department nor could they find evidence of a direct link to His Majesty’s Government.”

To the extent I can rely on this evidence, given my earlier misgivings about Ms Kalunga’s evidence, it again demonstrates a misunderstanding of the conditions in Category 4 and therefore a misapplication of them by the Panel. Neither of the phrases ‘substantive link’ or ‘direct link’ appears in Category 4.

Ground 1B is therefore made out and the Defendant’s decision cannot stand. Even allowing for an ‘attenuated’ standard of reasoning, the Defendant’s reasons are deficient. The requirement (per MN at [242]) that ‘Every factor which tells in favour of the applicant has been properly taken into account’ was not met in this case.

I also consider that Ground 1C is made out. The Panel’s Decision was irrational for all of the reasons already given. I adopt the approach of Saini J in R (Wells) v Parole Board [2019] EWHC 2710 (Admin), at [29]-[35], [40]-[41] under the heading ‘Irrationality and reasons’:

“29.

I have set out the evidence before the Panel at some length above. That was necessary in order to properly assess the rationality challenge. The essential submission is that in the light of that evidence the Panel's conclusion that Mr Well's risks could not be safely managed in the community was irrational. As I explain below, I prefer to approach this Ground 2 (the rationality challenge) and the Ground 4 challenge (reasons challenge) together.

30.

As is obvious, a rationality challenge in public law is always a substantial challenge for a Claimant; and particularly so, when dealing with a specialist quasi-judicial body which will have developed experience in assessements of risk in an area where caution is required.

31.

A modern approach to the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) test is not to simply ask the crude and unhelpful question: was the decision irrational?

32.

A more nuanced approach in modern public law is to test the decision-maker's ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the Panel's expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied.

33.

I emphasise that this approach is simply another way of applying Lord Greene MR's famous dictum in Wednesbury (at 230: "no reasonable body could have come to [the decision]") but it is preferable in my view to approach the test in more practical and structured terms on the following lines: does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?

34.

This may in certain respects also be seen as an aspect of the duty to give reasons which engage with the evidence before the decision-maker. An unreasonable decision is also often a decision which fails to provide reasons justifying the conclusion.

35.

I should also emphasise that under the modern context-specific approach to rationality and reasons challenges, the area with which I am concerned (detention and liberty) requires me to adopt an anxious scrutiny of the Decision: see Judicial Review (Sixth Edition), Supperstone, Goudie and Walker at para.8.12.

…

40.

The duty to give reasons is heightened when the decision-maker is faced with expert evidence which the Panel appears, implicitly at least, to be rejecting …

41.

I accordingly conclude that the Panel's decision failed to reflect the evidence before it or to explain in more detail why such evidence was being rejected …”

Mr Brown submitted that irrationality sets a higher bar than procedural law challenges for failure to give reasons. He said even if the Claimant succeeded in part of the challenge under the procedural law grounds, it was not the case a priori that the Defendant’s conduct fell so far short of the public law duties as to be deemed irrational. He relied on MKA, [48]:

“In my judgement the Defendant is correct to characterise the [ARAP] Panel as expert and their role as evaluative. The Court in these circumstances must afford respect to its judgement and its expertise in assessing the materials before it and recognise that collective experience and knowledge will be brought to bear. The Defendant is also correct that the unusual circumstances of the case and the task carried out by the Panel will condition the exercise of its duties, including any giving of reasons for decisions.”

I would observe that the Defendant’s reliance on this passage – and his oral reference to the Defendant’s supposed ‘institutional know-how’ - sits rather uneasily with his submission that the Panel is made up of lay people who cannot or should not be expected to give detailed explanations: DGD, [8(a)]; Skeleton Argument, [21(b); R v Governors of the Bishop Challoner Roman Catholic Comprehensive Girls' School ex p Choudhury [1992] 2 AC 182, p197E (the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt). Whilst that general principle is uncontroversial, on Mr Brown’s case it does not really fit the decisions of the Panel.

The Panel’s decision must therefore be quashed.

Mr Brown submitted that Ground 2 really runs alongside Ground 1B. I think that is right. Many of the matters going to the insufficiency of the Panel’s reasons also sound, in public law terms, as the Panel having misapplied the conditions in Category 4. My discussion of Ground 2 should therefore be read with my discussion of Ground 1B.

On the authority of LND1, it is clear from all of its reasons that the Second Review Panel adopted a wrong approach to Category 4, and for that reason also, its Decision cannot stand. In short, it wrongly considered condition 1 in isolation, whereas the proper approach required it to consider the factual matters underpinning conditions 1 and 2 together, and especially because the Claimant was not in either of the first two classes of person within condition 1, ie, he was not employed and did not work under contract.

For convenience, I will set out conditions 1 and 2 again:

“(i)

condition 1 is that at any time on or after 1 October 2001, the person:

(a)

was directly employed in Afghanistan by a UK government department; or

(b)

provided goods or services in Afghanistan under contract to a UK government department (whether as, or on behalf of, a party to the contract); or

(c)

worked in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department;

(ii)

condition 2 is that the person, in the course of that employment or work or the provision of those services, made a substantive and positive contribution towards the achievement of:

(a)

the UK government’s military objectives with respect to Afghanistan; or

(b)

the UK government’s national security objectives with respect to Afghanistan (and for these purposes, the UK government’s national security objectives include counter-terrorism, counter-narcotics and anti-corruption objectives);”

LND1 was also a case about a judge who had been refused under the ARAP on the grounds that he did not satisfy condition 1 in Category 4. At [18] Swift J noted that LND1’s evidence about the work he had done between 2008 and 2021 had been accepted as true by the defendant. From 2008 until August 2021 he had held several judicial and related posts. Between 2008 and 2009 he was a member of the Primary (ie, the first instance) Court for Crimes Against Internal and External Security in Kabul (referred to by him as the ’Terrorist Court’) which included working on cases of Taliban combatants. From 2013 to 2016 he was a member of the General Directorate of Investigation and Legal Studies of the Afghanistan Supreme Court. The Directorate developed the legislation and rules governing the Afghanistan Anti-Corruption Justice Centre (the ACJC), which was established in 2016. From 2016 to 2021 LND1 was the Director General of the Directorate of Investigation and Legal Studies. In this position he was responsible for interpretation of the law applicable to the ACJC and the law applicable to the Counter-Narcotics Justice Centre (the CNJC) which had been established in 2005 to investigate and prosecute drug related offences. LND1 also said that between 2019 and 2021 he was actively involved in the work of the CNJC. Neither the FCDO nor the NCA, whom the MoD had consulted, was supportive of his claim that he satisfied condition 1 in Category 4 and neither was prepared to sponsor him.

Swift J said at [19]-[21]:

“19.

Drawing this together, it is apparent that the question of whether the First Claimant had worked in partnership with or closely supporting or assisting a government department was considered in terms of whether the First Claimant had held office at the Terrorism Court at a time when the Foreign Commonwealth and Development Office considered itself to have been ‘in partnership’ with that court (ie, from 2015), or whether his name was known to anyone at the Foreign Commonwealth and Development Office or the National Crime Agency, or whether he had been in receipt of any form of payment (see the reference to the National Crime Agency's ‘payment schedule’).

20.

I do not consider this is a correct approach to the application of this part of Condition 1 in ARAP 3.6. The overall effect of the responses from the Foreign Commonwealth and Development Office and the National Crime Agency involved consideration of Condition 1 in isolation from Condition 2. ARAP 3.6 contains four conditions. An applicant must satisfy Conditions 1 and 2 and either Condition 3 or Condition 4. There is a clear distinction between Conditions 1 and 2 on the one hand, and on the other hand, Conditions 3 and 4. Put generally, the latter concern risk arising by reason of the work the applicant has undertaken, either risk to himself or risk to United Kingdom interests. Conditions 1 and 2 must be considered together, in particular when the applicant was not in either of the first two categories within Condition 1, i.e., was not employed and did not work under contract, but was (or claims to have been) in the third, partnership, close support and assistance, category. Conditions 1 and 2 are, obviously, interdependent. Condition 2 is the more important because it identifies the substantive activity that the applicant must have undertaken to meet the eligibility requirement. By contrast, Condition 1 operates as a filter by requiring that activity to have been performed either in consequence of a contractual obligation (the first and second categories) or in consequence of some other sufficiently close connection (the third category). Since the third category is not defined by reference to an objective criterion, I do not think it possible to apply it without, as part of a single exercise, also considering the nature and extent of the applicant's contribution to the relevant military or national security objectives. Put shortly, the position of such an applicant must be considered in the round; whether an applicant has ‘worked … alongside a UK government department’ cannot be reduced simply to whether he worked somewhere while it received specific support from a UK government department (with the consequence in this instance that the First Claimant's work as a judge at the Kabul Terrorism Court between 2008 and 2012 did not count, whereas doing the same work at the same court after 2015 would have counted), or whether his name can be remembered by one or more United Kingdom civil servants who worked in Afghanistan, or whether he received some form of payment from a United Kingdom government department. An approach that focusses only on matters that are in some respects peripheral, risks missing the wood for the trees. In this case the decision-maker ought also to have taken account of the substance of the work the First Claimant undertook, the nature of the institutions in which he worked, the nature of the connection between those institutions and the relevant United Kingdom government departments, and the contribution made by the work of those institutions to the United Kingdom's military and national security objectives in Afghanistan during the period the First Claimant worked in them.

21.

That was not the approach taken in this case, and for that reason the Secretary of State for Defence failed properly to consider the First Claimant's application in accordance with his policy. That being so, the next issue is whether the application of Conditions 1 and 2 ought to be remitted to the Secretary of State for Defence for further consideration or whether that is unnecessary so far as concerns compliance with those Conditions because, given the First Claimant's circumstances it is clear on any proper application of this part of the scheme there would only be one legally permissible outcome.”

In CX1 (DC), the Court said at [72]-[74] under the heading ‘The interpretation of condition 2 of ARAP Category 4’:

“72.

It was submitted on behalf of the claimants that the defendants had taken too narrow an approach to condition 2 of category 4 of ARAP. For CX1 and CX6 the defendants had asked whether UK national security objectives were the goal of the work carried out by those claimants, rather than considering whether the claimants had made a contribution to the UK national security objectives.

73.

It was submitted on behalf of the defendants that it was for their caseworkers to make the assessment whether there was compliance with the objectives because they were the core functions of the relevant departments. There was no rationality challenge to the decisions made by the defendants, meaning that it was simply a matter of the proper interpretation and application of the policy. The use of the term goal did not mean that the policy had not been properly applied.

74.

It is clear that condition 2 does link the ‘employment’, ‘work’ or ‘the provision of those services’ to the substantive and positive contribution to the achievement of the relevant objectives. This is because the policy refers to ‘that employment or work’ and ‘those services’, and not some other employment or work or services. Condition 2 required that the claimant ‘in the course of that employment or work or the provision of those services" to have ‘made a substantive and positive contribution to’ the achievement of the relevant objectives. Condition 2 does not require however, the achievement of the relevant objectives to be the ‘goal’ of the ‘employment’, ‘work’ or ‘the provision of those services’.”

It is plain from the decision letter that the Second Review Panel considered condition 1 in isolation and, having concluded that the Claimant did not satisfy it, did not go any further or meaningfully consider condition 2. It wrongly focussed on trying to identify some substantive or direct link between the Claimant and a UK Government department, which are words not used in Category 4, rather than the right functional question, which was: did what the Claimant do (as put forward in support of the claim under condition 2 as having made a substantive and positive contribution towards the achievement of the UK Government’s national security objectives), qualify him under condition 1 ? Another way of putting it is: was there an alignment between what the Claimant did, and the goals of the UK Government ?

As well as misdirecting itself on ‘links’, the Panel appears to have allowed itself to get side-tracked into ‘wood for the trees’ type points, such as whether the Claimant had named specific cases, or could name individuals or officials from the PRT with whom he had worked in partnership with or was closely supported and assisted by.

Pressed by me to give his client’s case on the meaning of ‘partnership’ in condition 4, Mr Brown said it meant ‘a sufficiently strong relationship that could properly be described as one of partners in the sense of two or more entities working together to achieve a particular purpose or goal’. That was not the approach adopted by the Panel. In relation to ‘closely supporting or assisting’, Mr Brown said that ‘closely’ imported a high threshold. The focus is on the ‘level of connection’. Mr Brown accepted an example suggested by me in argument of the British Army identifying an area of opium production, and passing intelligence to the Afghan authorities, which led in turn to the Claimant presiding over the trial of the alleged opium producers. He accepted this example could satisfy condition 2 as ‘closely supporting or assisting’.

It therefore seems to me that the Panel committed the same error as did the decision maker in LND1 by not considering conditions 1 and 2 in Category 4 together in the way Swift J said that they should with regard to function. In mitigation, it is right to note that LND1 was handed down two months after the Decision in this case.

Mr Brown said that the following paragraph showed consideration by the Panel of conditions 1 and 2:

“The panel considered the assertions made by the Applicant and his representatives that he was supported by the Helmand Provincial Reconstruction Team (PRT) in his role as Defence Lawyer and that his work as Judge will have been carried out alongside and/or in partnership with and/or closely supporting and assisting UK Government departments as part of the UK’s counter-terrorism mission in Afghanistan. But it was noted that the Applicant did not go beyond these assertions to expressly detail the nature of that support, provide details of any relevant cases dealt with or individuals/officials from the PRT with whom he worked in partnership with or was closely supported and assisted by. The panel also noted that the evidence supplied by the Applicant did not include details of the specific terrorist crimes he presided over in his role as Judge, or details of how he specifically contributed to the UK’s counter-terrorism mission in Afghanistan.”

I disagree. There is no trace of the language of condition 2 in this paragraph (‘substantive and positive contribution’) and Mr Brown’s suggestion is inconsistent with both the pro forma letter (which made no mention of condition 2) and also the Panel’s Notes, which said in terms that condition 2 was not considered.

I also reject any suggestion based on Ms Kalunga’s evidence that the Second Review Panel did, fact, consider conditions 1 and 2 together. She said at [55]: (emphasis added):

“55.

… The Panel’s consensus was that the Claimant’s PRT association provided very little in terms of meeting Conditions 1 and 2 of Category 4 of ARAP. Because Conditions 1 and 2 were not met, the remaining conditions were not assessed.”

This evidence is not admissible and I reject it. My conclusion is in accordance with well-understood public law principles. The cases are collected in Fordham, Judicial Review Handbook (Seventh Edn), [64.4.7]. For example, in R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290, [64], a planning case, Jackson LJ said:

“Save in exceptional circumstances, a public authority should not be permitted to adduce evidence which directly contradicts its own official records of what it decided and how its decisions were reached. In the present case the officer's report, the minutes of the Planning Committee meeting and the stated reasons for the grant of planning permission all indicate a misunderstanding of policy H20. These are official documents upon which members of the public are entitled to rely. Mr Findlay's submission that this is not a ‘reasons’ case like Ermakov [R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302] misses the point. The Council should not have been permitted to rely upon evidence which contradicted those official documents. Alternatively, the judge should not have accepted such evidence in preference to the Council's own official records.”

More recently, in R (Inclusion Housing Community Interest Company) v Regulator of Social Housing [2020] EWHC 346 (Admin), [78], Chamberlain J said (citations omitted):

“78.

So far as ex post facto reasons are concerned, the authorities draw a distinction between evidence elucidating those originally given and evidence contradicting the reasons originally given or providing wholly new reasons … Evidence of the former kind may be admissible; evidence of the latter kind is generally not. Furthermore, reasons proffered after the commencement of proceedings must be treated especially carefully, because there is a natural tendency to seek to defend and bolster a decision that is under challenge …”

Ms Kalunga’s evidence suffers from both of these vices. It is both inconsistent with the Second Review Panel’s Decision in its pro forma letter and Notes, both of which rejected the Claimant on condition 1 only, and it was only provided after these proceedings had commenced. I therefore I reject it. In saying this, I do not attribute any bad faith to Ms Kalunga; it is just that this aspect of her evidence is wrong and inadmissible.

In his submissions Mr Seddon speculated that one reason the Panel may not have mentioned Mr Foxley’s evidence (which also focussed on the nature of the functions performed by the Claimant which aligned with the UK Government’s goals), was because it simply did not grasp that functionality is the foundation of the correct approach. Be that as it may, I conclude that the Panel went wrong.

It is beyond doubt that the Claimant’s work as a defence lawyer and judge over a number of years (especially in relation to terrorism, narcotics and corruption cases) made substantive and positive contribution towards the achievement of the UK government’s national security objectives in condition 2.

In summary, therefore, the Claimant’s case succeeds on Grounds 1A, 1B and 1C and Ground 2.

The next question (per LND1 at [21]), is whether the application of conditions 1 and 2 in Category 4 ought to be remitted to the Defendant for further consideration, or whether that is unnecessary so far as concerns compliance with those conditions because, given the Claimant's circumstances and the evidence, it is clear on any proper application of this part of the ARAP there can only be one legally permissible outcome.

As Swift J said at [22] of LND1, it is in the nature of the application of provisions such as conditions 1 and 2 that instances where there will be only one such outcome will be rare. However, like him in that case, I am satisfied that this is such a case.

The Claimant’s case, which was not rejected by the Defendant, was that that Claimant worked in the roles he says that he did, first between 2008 and 2015 as a defence lawyer, and then as a judge in Helmand in various roles up to appeal court level from 2015 until 2021. During the latter period he handled a range of cases including terrorism cases, drug smuggling cases and administrative corruption cases (see his first witness statement, [12]).

These matters clearly evidence an extended period of work over many years in important rules in the Afghan justice system and judiciary, the work of which was obviously central to the HMG’s UK’s national security objectives in Afghanistan, as described in condition 2 (counter-terrorism, counter-narcotics and anti-corruption being specified as included in those objectives). There is direct evidence from Mr Foxley that the FCO worked alongside judges and others in Helmand (see his report at [33]-[36]). The Claimant therefore performed significant activities which were closely aligned with the democracy-building and rule of law building activities of the UK Government in Afghanistan and in Helmand in particular. He made significant contributions to the building of a properly functioning criminal justice system in the fields of terrorism, anti-narcotics, and anti-corruption, among others. Conditions 1 and 2 are therefore plainly satisfied on the evidence.

Finally, for completeness, I deal with two points.

Firstly, the Claimant applied in an application notice dated 15 November 2023 (the day before the hearing) to admit evidence contained in an Addendum Supplementary Bundle. This is evidence which has gone to the Home Office in support of an application for LORT. I was shown the material de bene esse.

Mr Seddon said that it went to the procedural fairness issue of what the Claimant might have been able to say on review if he had been given proper reasons from the outset for the rejection of his claim. It included a further witness statement from the Claimant giving more details about his work as a lawyer and judge, including numbers of cases he dealt with and the name of at least one high profile Taliban defendant he dealt with.

The Defendant objected to this additional material being admitted (but did not object to my seeing it de bene esse).

I need not determine this application as I have found for the Claimant on his existing grounds. I have left the material out of account in reaching my decision.

Second, at the very end of his submissions, Mr Seddon argued that the Taliban’s perception of the Claimant’s role was relevant to conditions 1 and 2, and not just condition 3, in Category 4, basing himself on [98] of Lane J’s judgment in CX1:

“98.

Whilst I accept that the Taliban's perception of the relationship between the BBC and HMG cannot alter the ordinary meaning of the words contained in sub-paragraph (c) of condition 1, that perception is clearly relevant so far as condition 3 is concerned. Condition 3 requires there to be or have been an elevated risk of targeted attacks, death or serious injury ‘because of …that work.’”

He referred to [40(5)] of his SFG, where it was argued that Category 4 had been misapplied because ‘perception was relevant whether the work done alongside the UK Government put the Claimant at an elevated risk of attacks, death or serious injury: [CX1] at [98] but this was not considered by the Panel.’ The specific relevant condition(s) were not identified.

Mr Brown said that his client had been taken by surprise by the way Mr Seddon had put the point orally, and he objected. Given I have found for the Claimant on the points set out above, I do not need to resolve this issue.

The Claimant’s' claim for judicial review succeeds on the grounds I have indicated. The consequence of my conclusions is that the Claimant meets conditions 1 and 2 in Category 4 of ARAP within [276BB5] of the Rules.

It will now be for the Defendant to consider whether either condition 3 or condition 4, or both, in Category 4 is met. If his decision is that either or both of those conditions is met then, subject to any other relevant point arising under the Rules, the Claimant’s and Interested Party’s applications for entry clearance will fall to be determined by the Home Secretary in accordance with the Rules.