CX1 & Ors, R (on the application of) v Secretary of State for Defence & Anor

This is the judgment of the court.

These claims for judicial review each raise issues about the application of the Afghan Relocations and Assistance Policy (ARAP). ARAP governs the circumstances in which His Majesty’s Government will grant leave to relocate to the United Kingdom. In each of these cases, the claimants challenged decisions that they were not eligible for relocation to the United Kingdom under ARAP. OPEN judgments have been handed down in each of these cases: [2024] EWHC 94 (Admin) (the CX cases) and [2024] EWHC 410 (Admin) (the MP cases).

For the reasons given in the judgment in the CX cases, the court quashed decisions that CX1 and CX6 did not qualify for relocation to the United Kingdom under ARAP and remitted their applications to the defendants to be redetermined. CX2’s claim was withdrawn. The claims of CX4 and CX7 were dismissed.

For the reasons given in the judgment in the MP cases, the court quashed the decisions that the claimants did not qualify for relocation to the United Kingdom under ARAP. There is an outstanding application for permission to appeal against that decision.

In each case, the defendants sought a declaration that a closed material application could be made under section 6 of the Justice and Security Act 2013 and Part 82 of the Civil Procedure Rules. The declaration was sought to enable the defendants to comply with their duties of candour. In particular, the defendants wished to disclose to the court sensitive material (meaning material which, if disclosed to the claimants, would be damaging to the interests of national security). Nevertheless, it was material which the defendants were required to disclose in order to discharge their duties of candour. It was in the claimants’ interests that the material was disclosed to the court and to special advocates appointed under CPR Part 82 to represent the claimants’ interests.

The special advocates did not contest the making of declarations under section 6 of the 2013 Act. Nor did they contest the defendants’ applications for permission not to disclose material otherwise than to the court and the special advocates. On the evidence, they were right not to do so. We have made orders granting those applications.

We have held a CLOSED hearing to determine matters raised by the special advocates in respect of the material disclosed by the defendants.

Following that hearing, we have handed down a CLOSED judgment on 19 April 2024. The CLOSED judgment does not change, or call into question, anything that is set out in the OPEN judgments in each of these cases. By way of summary, we can say that we have broadly found in favour of the matters raised by the special advocates, but not all matters raised by them. We are satisfied that it would be contrary to the public interest for the content of our CLOSED judgment to be made public. This involves a departure from the open justice principle that is fundamental to the administration of justice. We will arrange for the CLOSED judgment to be published if and when this can be done without causing damage to national security.

As soon as a position is reached where the justification for departing from the open justice principle falls away, we will arrange for the CLOSED judgment to be published (possibly subject to redactions).