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

The claimant is an Afghan national. Before August 2021, when the Taliban came to power, he was a judge and had a public profile. In the interests of his safety, there are reporting restrictions in place to prevent the publication of his identity.

By his amended grounds of challenge, the claimant applies for judicial review of:

The claimant’s amended grounds are expressed as: “(a) failure to consider relevant evidence, (b) consideration of irrelevant matters, (c) failure to make enquiries, (d) unduly narrow interpretation or misunderstanding of the requirements, and (e) reached irrational conclusions.” This same formulation appears in the claimant’s skeleton argument.

Mr Tim Owen KC, who appeared with Ms Emma Daykin on behalf of the claimant, focused his oral submissions on the review decision. Departing from the written case in the claimant’s amended grounds and skeleton argument, he narrowed the challenge to three points relating to the review decision which may be numbered and summarised as follows:

An application by the claimant to rely on an expert report by Mr Tim Foxley MBE, which was not before the decision-maker, was not pursued.

The ARAP scheme has been the subject of a number of judgments of this court and of the Court of Appeal. I do not propose to set out the scheme’s origins or development in any detail. They are not in dispute. I would gratefully adopt the historical account of Lewis LJ in R (LND1) v Secretary of State for the Home Department [2024] EWCA Civ 278, [2024] 1 W.L.R. 4433, as follows:

“16.

Following the terrorist attacks against the United States of America on 11 September 2001, the United States led a military intervention against Al Qaeda groups and the Taliban Government in Afghanistan. The United Kingdom took part in the initial intervention. The military operation was subsequently supported by NATO and by a joint international force, known as the International Security Assistance Force or ISAF. The United Kingdom played a political, diplomatic and military role. Those activities continued between 2001 and 28 August 2021. 

17.

In May 2021, the Taliban launched a military offensive against the Afghan Armed forces. By 15 August 2021, the Taliban had seized control of Kabul. British and American forces retreated to Kabul airport from where they operated an emergency airlift for all NATO's civilian and military personnel, other foreign nationals and certain Afghans thought to be at risk from the Taliban. Operation Pitting was the name given to the United Kingdom's operation to evacuate British nationals and others at risk. The final British flight left Kabul on 28 August 2021. The final American flight left on 30 August 2021. Taliban fighters entered the airport. A Taliban Government has been in control of Afghanistan since that date.”

ARAP was launched jointly by the Secretary of State for Defence and the Secretary of State for the Home Department on 1 April 2021. It replaced the Intimidation Policy (in place from 2010 to 2013). In addition, an ex gratia scheme (in place between 2013 and 2022) provided redundancy payments to Afghans employed by the United Kingdom Government in Afghanistan. I need say no more about these earlier schemes.

ARAP has been routinely updated. I was provided with a copy of the terms of ARAP as updated on 18 September 2023. That document states that ARAP “is for Afghan citizens who worked for or with the UK government in Afghanistan in exposed or meaningful roles and may include an offer of relocation to the UK for those deemed eligible by the Ministry of Defence and who are deemed suitable for relocation by the Home Office.” A number of “cohorts” are eligible for assistance, to which I shall now turn.

The Category 1 cohort comprises those who were employees of the United Kingdom Government in Afghanistan on or after 1 October 2001 and who, because of that employment, are “assessed to be at high and imminent risk of threat to life.” The Category 2 cohort comprises those who were directly employed by the United Kingdom Government in Afghanistan or those who were contracted to provide linguistic services to the United Kingdom’s Armed Forces in Afghanistan on or after 1 October 2001. In order to qualify for relocation as a member of Category 2, a number of other conditions must be met, such as that “the applicant’s role must have exposed them to being publicly recognised as having performed that role and, as a result of that public recognition, their safety is now at risk.”

The Category 3 cohort is eligible for support short of relocation. This cohort comprises those who are neither assessed to be at high and imminent risk of threat to life under Category 1 and who are not eligible as a result of having had the sort of public exposure that would qualify under Category 2.

The present claim concerns Category 4, and so I shall quote its terms in full:

“The cohort eligible for assistance on a case-by-case basis are those who:

•

on or after 1 October 2001 were directly employed in Afghanistan by a UK Government department; provided goods or services in Afghanistan under contract to a UK Government department; or worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department; and

•

in the course of that employment or work or provision of services they made a substantive and positive contribution to the UK's military objectives or national security objectives (which includes counter-terrorism, counter-narcotics and anti-corruption objectives) with respect to Afghanistan; and

•

because of that employment or work or provision of services, the person is or was at an elevated risk of targeted attacks and is or was at a high risk of death or serious injury; or

•

hold information the disclosure of which would give rise to or aggravate a specific threat to the UK Government or its interests.

Checks will be made with the UK Government department by whom the applicant was employed contracted to or worked alongside, in partnership with or closely supported or assisted” (emphasis added).

For present purposes, the key question is whether the claimant “worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department.” This criterion forms part of the first bullet point of Category 4. For convenience, I shall call the first bullet point “Condition 1.”

Responsibility for the assessment of eligibility for relocation lies with officials within the Ministry of Defence. These officials are “best placed, liaising where necessary with other Government agencies operating in Afghanistan, to…assess [a person’s] eligibility for relocation” (S v Secretary of State for the Home Department [2022] EWCA Civ 1092, para 16). In relation to Category 4 cases, the defendant may refer the case to other Government departments and agencies in order that they may confirm whether or not an individual has worked alongside a Government department.

It would be unreasonable for the defendant in all Category 4 cases to expect an applicant to name or identify the relevant department to which his or her application should be referred. Provided that the applicant describes in sufficient detail who or what they were working alongside, the defendant can and should establish the identity of the United Kingdom Government department concerned (R (CX1) v Secretary of State for Defence [2023] EWHC 284 (Admin), para 90, per Lane J).

In relation to applications by judges and prosecutors, the relevant Ministry of Defence Standard Operating Procedures deal with referral to the FCDO and the National Crime Agency (“NCA”):

“5.10.5

Judges and Prosecutors – FCDO Referral

The vast majority of judges and prosecutors are likely not eligible; however, all judges and prosecutors are referred to [the Category 4 team] for consideration and referral to FCDO and/or NCA. Judges and Prosecutors may be at great risk of intimidation and threats, due to the nature of their work. This does not make them eligible for ARAP, unless they worked alongside British and Allied forces to ensure the stability of the country and ultimately ensure the success of the UK mission in Afghanistan. This may have included trying individuals that were members of the Taliban and other terrorist groups, who were released from prison when the allied forces withdrew, and Taliban took power” (emphasis added).

If an applicant satisfies the ARAP criteria, responsibility passes to the Home Office. The Immigration Rules have specifically catered for relocation to the United Kingdom under ARAP since 1 April 2021. Provision for the grant of entry clearance to a person who “worked in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department” was introduced on 14 December 2021. The Home Office will ensure that all relevant aspects of the Immigration Rules are satisfied. This will include an assessment of whether there are grounds for refusal of entry clearance under one of the general grounds for refusal under Part 9 of the Rules, such as criminality.

As the claimant received a negative decision from the defendant, no question of whether he satisfied the Immigration Rules arose and the Home Office is not a party to this claim. There is no need for me to consider the Rules or the Appendix to the Rules under which ARAP cases are considered.

On 2 October 2021, the claimant made an online application to relocate to the United Kingdom under ARAP. The application form stated that he was the Head of a particular City Court Civil Cases Division and, separately, the Head of a Court Combating Usurpation of State Land and Properties covering 7 provinces. His functions in the City Court included dealing with civil cases relating to land, inheritance (particularly women’s inheritance) and debt, as well as the assignment of guardians to the family of military personnel killed in combat. He had direct contact with people and with law enforcement. He encouraged people to support the Afghan Government. He kept people from “kangaroo courts” through applying the processes of justice. Through the Court’s transparency, its case load tripled between 2017 and 2020.

In the Court Combating Usurpation of State Land, the claimant adjudicated upon cases and “sentenced” those involved in usurpation. He said in his ARAP application that state lands were usually usurped by “land mafia” supported by the Taliban.

By email dated 26 August 2022, the defendant’s ARAP Secretariat sought further information from the claimant which was provided on 7 September 2022. The claimant submitted documentary evidence of his legal education and training and of his position as a judge. He provided the following further details:

“I would like to say that we worked under the leadership of the Supreme Court. And in Kabul the Supreme Court [held] initial meetings with donor countries such as the United Kingdom, the World Bank and others on the issue of justice and the rule of law in Afghanistan.

And then the judges headed by the Supreme Court were responsible for enforcing it. The leadership of the Supreme Court has met with representatives of the British government in this regard… According to the information, we did not participate directly in the decision-making meetings on strategy formulation.

…[T]he only people who are most intimidated and harassed by the Taliban are the judges because the Taliban who are now in power are being held captive by these judges, so they will never forget this situation.

…

I have been experiencing threats posed by armed insurgents and other criminal groups because of my employment with the Afghanistan government under the Supreme Court. My role was to bring legitimacy and to apply government law in different divisions, such as commercial court, military court and civil court.”

The claimant accepted that he was not directly employed by the United Kingdom Government. The supporting documentation shows that he undertook training as a stagiaire in the Afghan Supreme Court in Kabul. Judicial recruitment practices mean that he was employed by the Afghan Supreme Court but there is nothing in his ARAP application to suggest that the claimant sat as a judge of that Court.

Lord Murray on behalf of the defendant maintained that the claimant was in essence a judge dealing with civil as opposed to criminal cases. The claimant’s account of his work as a judge contains some unclear and unparticularised references to “sentencing” people for land usurpation and also a brief reference to “military court” which would in English law suggest criminal functions. Mr Owen did not, however, suggest that the claimant dealt with criminal cases. He did not submit that Lord Murray’s description of the claimant as a civil judge was wrong.

The defendant has disclosed a Log of the process that led to the eligibility decision. The Log shows that, on 17 July 2023, the claimant’s case was referred to the NCA. The defendant wanted to refer the case to the FCDO as well, but the FCDO was at the time refusing to accept any new ARAP referrals and so no referral was made.

On around 15 August 2023, the NCA confirmed that it had not identified any relationship with the claimant and that it would not support his application. The NCA made the broad and general observation that the defendant might “consider it appropriate to direct this application to other areas of HMG”. The NCA did not, and could not, instruct the defendant to refer the case to the FCDO.

On around 21 August 2023, the Log noted that the claimant’s case raised no “explicit or alleged” link to the FCDO, such as working with FCDO staff, contact with the British Embassy in Kabul or salary supplements paid by the FCDO. A decision was made to determine the ARAP application without a referral to the FCDO.

By a written decision dated 22 August 2023, the defendant informed the claimant that he was not eligible for relocation to the United Kingdom. The eligibility decision described Categories 1, 2 and 4 of the ARAP scheme and stated that the claimant did not fall within any of those categories. The claimant was informed of his right to seek a review of the decision.

On 17 November 2023, the claimant’s solicitors submitted a request for a review. The grounds for review were that the claimant did not agree that his case had been properly considered in accordance with the policy and that he had new information that had not yet been considered. In support of these grounds, the claimant’s solicitors stated as follows:

“We submit that our client’s case has not been properly considered in accordance with the policy. It is our submission that our client potentially fits into Category 4 ARAP and our client has provided sufficient documentary evidence of our client's work as a judge to substantiate his claim. We endeavour to submit further representations with our client’s documentary evidence.

We submit that it is also very difficult to engage with the refusal decision letter as there are no specific reasons for the refusal. We therefore invite you to ask [text incomplete in the original].”

I do not understand the claimant to have submitted fresh documentary evidence for the purposes of the review. There are two documents in the bundle that are said to have been issued by the Directorate of Intelligence in Afghanistan and which indicate that the claimant’s attendance at the Directorate is required. Mr Owen did not rely on those documents.

The review decision reiterated in brief terms that the criteria for Categories 1, 2 and 4 were not met. The reasoning provided to the claimant at the time of the decision was perfunctory but, during the course of these proceedings, the defendant has disclosed Casework Notes (“the Notes”) which give further and better reasons for the review decision. In considering whether the claimant satisfied the Category 4 criteria, the Notes record:

“The Applicant does not provide any evidence of working in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department.

Any claim that the Applicant’s work as a Supreme Court Judge was carried out alongside and/or in partnership with and/or closely supporting and assisting a UK government department does not go beyond mere assertions which do not expressly detail the nature of any such support, provide details of any relevant cases dealt with or any individuals/officials with whom he worked in partnership with or was closely supporting and assisting…

It is further considered that the Applicant, being a Supreme Court Judge in the Civil Division as so described by himself, did not specifically deal with any terrorist cases as his role was to engage in civil cases …” (emphasis added).

The Notes deal with why the defendant did not consider it worthwhile to refer the case to the FCDO, stating as follows:

“In consideration of those agencies that might have potentially offered support to the Applicant, there was no merit for a referral to be made to the FCDO and as the NCA had previously declined to support the Applicant, no further action was taken in this respect. It was noted that the Applicant did not specify any explicit link to any UK agency by name and therefore the case was not referred.”

Since the review decision, the claimant has produced a certificate of attendance at a workshop on fair trial standards. According to the certificate, the workshop took place in Helmand between 8 October and 18 October 2012. The workshop was funded by the United Kingdom Government and delivered by the Max Planck Institute which is based in Heidelberg. The certificate was supplied to the defendant with the letter before claim sent by the claimant’s solicitors in June 2024 so that it post-dated the decisions under challenge.

The FCDO has now considered the certificate. A witness statement by Ms Christine Ferguson (Head of the Resettlement Department within the FCDO’s Afghanistan and Pakistan Directorate) states that the workshop may have been the result of a proposal by the Max Planck Institute made to the FCDO in June 2012, albeit that the dates of the workshop in the proposal were 14 October to 24 October 2012. Ms Ferguson makes the fair point that the dates could have altered between the proposal and the delivery of the workshop. In any event, Ms Ferguson states that the FCDO does not consider that attendance at the workshop, which was a maximum of 10 days in length, would be sufficient to confer ARAP eligibility. It is the FCDO view that a participant at the workshop would not be a person who had worked “alongside” the FCDO.

Mr Owen criticised Ms Ferguson’s witness statement as seeking to bolster the defendant’s decision not to refer the claimant’s application to the FCDO. He pointed out that Ms Ferguson has been criticised by this court for making a witness statement “as if she were an independent expert commentator on the decision that [had been] made” (R (QA) v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 3064 (Admin), para 11, per Johnson J). I do not consider that a limited criticism of Ms Ferguson in one case should affect the court’s approach to her evidence in all other cases. In the present context, she is plainly correct to say that attendance at a single workshop run by a foreign institution – albeit funded by the United Kingdom Government – is incapable of demonstrating that the applicant worked alongside any part of the United Kingdom Government.

The claim was lodged on 8 July 2024, at the outer edge of the time limit under CPR 54.5(1). The claimant has subsequently filed a witness statement in which he confirms that he undertook part of his judicial training at the Afghan Supreme Court in Kabul (September 2011 to September 2013). He was paid partly by the Court itself and partly by the Max Planck Institute. He says that, in September 2013, he was elected as a judge of a regional Supreme Court and then in 2014 he started work in the Civil Department of a different regional court. He describes his later work in the two courts mentioned in his ARAP application.

It is unclear whether the claimant means to convey in his witness statement that he decided cases as a Supreme Court Judge, either as a member of a regional Supreme Court or as a member of Afghanistan’s national Supreme Court. That sort of status did not feature in his ARAP application or in his application for a review. The defendant has (perhaps generously) treated him as a Supreme Court Judge for the purposes of the decision-making process. There is no need for me to treat him in some other way.

If a claimant seeks judicial review of both an eligibility decision and a review decision in a single claim, he or she will need to explain to the court why the challenge to the eligibility decision is not academic in so far as it will have been superseded by the review decision. In the present case, Mr Owen was right to focus on the review decision.

In LND1, the court considered what I have called Condition 1 and held at para 41 that the phrase “worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department” means that an individual must have been working in Afghanistan either “alongside … in partnership” with a United Kingdom Government department or “alongside … closely supporting and assisting” a United Kingdom Government department. I was not asked to take a different approach.

Mr Owen relied on judgments of this court that pre-date the Court of Appeal’s decision in LND1. He submitted that the key reasoning of these earlier cases survived the Court of Appeal’s conclusions. I have not found it helpful to consider the legal analysis in cases that pre-date LND1 which is now the leading authority on the interpretation of Condition 1. In circumstances where the Court of Appeal has given judgment on a point of law, I see no reason for this court to revert to earlier cases on the point. Nevertheless, in deference to Mr Owen’s submissions, I shall consider the cases on which he relied.

In R (MA) v Secretary of State for Defence [2024] EWHC 332 (Admin), the claimant had been a judge of the Afghan Supreme Court and (for a short time) the Head of the Public Security and Dangerous Drugs Court. The latter court investigated and heard criminal cases, many of which concerned members of the Taliban. The claimant had changed career in 2002, having a leading role in drafting a new Afghan constitution and then in devising a new penal code for Afghanistan. He applied for assistance under ARAP which gave rise (among other things) to the question whether he had worked alongside a United Kingdom Government department.

Swift J handed down judgment in MA on 16 February 2024, before the Court of Appeal had heard the appeal in LND1. In allowing the claim, Swift J (at para 23) applied his own reasoning at first instance in LND1 [2024] EWHC 332 (Admin) to the effect that the question whether a person worked alongside a United Kingdom Government department “is measured by some form of qualitative yardstick.” He held (at para 24 of MA) that the necessary qualitative assessment involved consideration of the claimant’s contribution to the United Kingdom’s military or national security objectives. Those objectives are described in another part of Category 4 (i.e. the second bullet point in the version of Category 4 before me) and are not part of Condition 1. The approach of reading these two different parts of Category 4 together was overturned by the Court of Appeal in LND1 which held that they should be considered separately and not as part of a single exercise (para 42). To the extent that Swift J’s judgment in MA is founded on reasoning that was overturned in LND1, it can no longer be followed.

Mr Owen relied in particular on Swift J’s observation that Category 4 cases should be considered holistically and in the round (see paras 23-24 of the judgment in MA). To the extent that Swift J meant that two different elements of Category 4 should be considered as part of a single exercise, this approach has been disapproved. The more general proposition that, in assessing whether Condition 1 has been satisfied, decision-makers should consider relevant factors in the round, adds nothing to the observation by the Court of Appeal in LND1, para 47, that it “will usually be necessary to consider the whole picture of the individual's work and activities in Afghanistan when assessing whether he worked alongside in partnership with or closely supporting and assisting a United Kingdom Government department.” There is no benefit in referring to MA.

In R (MP1) v Secretary of State for Defence [2024] EWHC 410 (Admin), Julian Knowles J considered the ARAP application of a judge who had, among other things, dealt with cases involving public security, terrorism, kidnapping, drug smuggling, corruption and foreign crimes. He had “sentenced and imprisoned Taliban members who subsequently obtained high positions in the present Taliban regime” (para 92). He had “signed arrest warrants and search warrants against the Taliban” (para 92). There had been an attempt on his life for which the Taliban took responsibility (para 94).

Julian Knowles J held that it was self-evident that the claimant had in that case “worked alongside an HMG department, in partnership with or closely supporting that department” (para 162) on the basis that:

“163 … 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 [i.e. the UK-led Helmand Provincial Reconstruction Team]” (emphasis added).

Julian Knowles J held that:

“168 …  the [ARAP] 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” (emphasis added).

Mr Owen emphasised these strands of Julian Knowles J’s reasoning which link the Afghan judiciary’s support for the rule of law to “working alongside” the FCDO which had the rule of law as a key objective. He submitted that Julian Knowles J’s reasoning in this regard represented the present state of the law. The Secretary of State had made an application for permission to appeal in MP1 upon which the Court of Appeal’s decision was awaited at the date I heard the present claim. Mr Owen submitted that, unless and until overruled on appeal, the reasoning of MP1 remained good law.

I do not agree. In reaching his conclusions, Julian Knowles J agreed with the submission on behalf of the claimant that ARAP has evolved into a policy expressed in terms of “a qualitative or functional assessment of what the applicant had done in Afghanistan” (para 170). The judgment in MP1 was handed down on 4 March 2024. The Court of Appeal handed down judgment in LND1 on 21 March 2024, so that Julian Knowles J did not have the benefit of its reasoning. In my judgment, LND1 makes clear that supporting or working to achieve the same goal as the FCDO is not the test in Condition 1. In all cases, the test is whether an individual worked “alongside” a United Kingdom Government department, whether in partnership with or by closely assisting and supporting that department. I do not discern from Julian Knowles J’s reasoning how the promotion of the rule of law by judges can, in itself, lead to the conclusion that a judge should be treated as having worked alongside a United Kingdom Government department: something more is needed.

I was also directed to certain passages in Lane J’s judgment in CX1. That case concerned a journalist and Lane J’s reasoning cannot be directly transposed to the present case. In any event, in relation to the meaning of the pertinent parts of Condition 1, this court will follow the Court of Appeal’s interpretation in LND1. Attempts to mould the approach of earlier cases to the Court of Appeal’s approach serve little purpose. Discussion of the cases on which Mr Owen relied has proved arid.

Responsibility for exercising functions under ARAP rests with the public authorities on whom those functions have been conferred. The role of the court in judicial review proceedings is to determine whether a decision or other action (or inaction) of a public body is unlawful in public law terms. That function does not change for any reason related to ARAP or ARAP applicants (LND1, para 59).

The claimant submitted in writing that the court should apply “anxious scrutiny” in the sense of a “more exacting standard of review” in a case involving the claimant’s right to life (Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 W.L.R. 1591, para 106). The high threshold for irrationality “may be easier than otherwise to surmount” in a case involving fundamental rights (R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44, [2014] 1 W.L.R. 2697, para 66). This aspect of the claimant’s written case was not pursued orally.

Lord Murray emphasised that ARAP involves the exercise of a prerogative rather than a statutory power. As the claimant’s application did not involve a power bestowed by the legislature, there could be no question of the executive being constrained to exercise the power in accordance with the legislative intention or in some particular way or manner (Sandiford, para 61). Although not immune from public law challenge, the court should be slow to interfere with a power that is intrinsic to the Crown such that it is for the Crown to determine whether and how to exercise it (Sandiford, para 61).

ARAP concerns a prerogative power that is exercised on humanitarian grounds in addition to legal powers and duties towards foreign nationals (whether those powers and duties are derived from international or domestic law). I did not hear full argument on whether a person who claims that he or she should have been selected for extra-statutory treatment can assert an entitlement to a more active approach to intervention by the court than the conventional approach to the judicial supervision of statutory powers and duties. I do not need to resolve the question and prefer not to do so. Nevertheless, in light of the gravity of the case, I have given close scrutiny to all the evidence and assured myself that the proceedings in this court have been fair. I have considered the whole picture (LND1, para 47, above).

Afghan judges may be eligible for relocation under ARAP but it is now well established that they are not automatically so: their eligibility depends on a case-specific evaluation of the facts of the individual case (R (S) v Secretary of State for Foreign, Commonwealth and Development Affairs [2022] EWHC 1402 (Admin), para 107; R (JZ) v Secretary of State for the Home Department [2022] EWHC 2156 (Admin), para 35).

Mr Owen submitted that the defendant was unreasonable to have concluded that the claimant’s claim to have worked alongside a United Kingdom Government department was inadequately evidenced. He criticised the Notes for saying that the claim amounted to “mere assertions” and for saying that the claimant had not provided relevant details of how his work as a judge amounted to working alongside a United Kingdom Government department. He submitted that, contrary to the defendant’s conclusion in the review decision, the claimant’s ARAP application was detailed.

The insuperable obstacle to these submissions is that there was no evidence before the defendant, and there is none before me, that the claimant worked alongside a United Kingdom Government department. It follows that the defendant’s decision that the claimant did not qualify under Category 4 was both reasonable and correct.

There is no evidence that the claimant worked alongside the NCA. I derive from LND1, para 49, that the NCA had a relationship with the Afghan Intelligence Investigation Unit and mentored seconded Afghan counter-narcotics police officers. There is no suggestion of such a link here.

There is no evidence that the claimant worked alongside the FCDO. As I have mentioned, attendance at a workshop funded by the United Kingdom Government cannot possibly meet the test.

Mr Owen submitted that the defendant had taken a rigid approach because he had concluded that the claimant did not work alongside the FCDO on the basis that he had not worked with FCDO staff or had contact with the British Embassy in Kabul or received salary supplements from the FCDO (which are each listed in the Log and which I shall call the “listed indicators”). Mr Owen submitted that such an analysis was too narrow as it failed to take into account the claimant’s work for democracy-building and the rule of law which were the objectives of both the United Kingdom Government and the Afghan judiciary.

This submission is wrong for two reasons. First, the Log does not say or imply that only those who satisfied the listed indicators could be regarded as working alongside the FCDO. As Lord Murray submitted, a fair and proper reading of the Log shows that the listed activities were provided as examples of how a person may demonstrate that he or she worked alongside the FCDO: they were not intended to be an exhaustive list. The same part of the Log states that there “is no explicit or alleged link to FCDO”. Such a conclusion was rooted in the evidence before the decision-maker and gives rise to no public law error.

Secondly, the claimant’s activities in the sphere of democracy-building and the rule of law fall to be considered under the second bullet point of Category 4. By seeking to merge these activities with the concept of “working alongside” in Condition 1, Mr Owen effectively asked me to adopt the approach that was disapproved in LND1.

The court may take into consideration whether a claimant has given sufficient particulars of, and described particular circumstances in which, he or she may be regarded as having “worked alongside” a United Kingdom Government department (R (CX1) v Secretary of State for Defence [2024] EWHC 94 (Admin) DC, para 65, per Dingemans LJ). That has not happened in the present case. Other than the FCDO and the NCA, it was not suggested by either party that the claimant’s case might have been referred to any other Government department or agency. In the absence of particulars of how the claimant may be said to have worked “alongside” a Government department, the defendant was entitled to treat the claimant as having advanced no more than “mere assertions.” This Ground fails.

Mr Owen submitted that the defendant was unreasonable to have concluded that the claimant fell outside Category 4 because he was not a criminal judge. The claimant had held a senior judicial role over a long period in a court that had jurisdiction over numerous provinces. He had dealt with State-owned land, women’s rights and other legal disputes that had brought him into confrontation with the Taliban and its allies. His work had exposed him to serious risk. Mr Owen submitted that the defendant had failed to recognise these relevant factors, taking too narrow a view of the language of Condition 1 by excluding the claimant on the grounds that he was not a criminal judge.

In my judgment, Lord Murray is correct to say that the claimant’s status as a civil judge was not decisive but was one aspect of the review decision overall. It cannot be said that the defendant was unreasonable to consider the nature of the claimant’s work as a judge and the sort of cases with which the claimant was involved. The defendant was entitled to weigh the fact that the claimant was not a criminal judge trying terrorism cases, where Category 4 status may be easier to demonstrate. It cannot be said that the nature of the claimant’s work as a civil judge was an irrelevant consideration. Nothing in the defendant’s approach was flawed.

Nor did the defendant ignore or leave out of consideration the details provided by the claimant of his work as a civil judge, including the fact that he made decisions that the Taliban and its allies did not like. Ground 2 is accordingly not made out.

Mr Owen submitted that the review decision was flawed on account of procedural error because the defendant had unlawfully departed from paragraph 5.10.5 of the Standard Operating Procedures (quoted above) which indicated that all judges are referred to the FCDO. Mr Owen was unable to bring forward any reason for a referral to the FCDO but submitted that he did not need to do so. The claimant could not be expected to know whether or not a referral might reveal something new and useful. He urged the court to enforce the Standard Operating Procedures.

I reject the proposition that the claimant is not bound to bring forward any reason for supposing that enquiries with the FCDO may yield a different decision. Such an approach would be a recipe for speculation on which this court does not act.

In my judgment, the Standard Operating Procedures are just that: they contain the defendant’s standard procedures. They have no statutory basis. They do not have the binding force of law. They provide guidance for decision-makers but do not amount to a rigid fetter on the defendant’s decision-making process. On the evidence before the decision-maker and before me, there could be no reason to make the referral. In the absence of a reason to make a referral, the defendant was not unreasonable and did not act unfairly by departing from the Standard Operating Procedures.

As part of his ARAP application, the claimant told the defendant about the harassment of judges and threats to their lives from the Taliban and insurgent groups. He has experienced threats from armed insurgents and other criminal groups. He told the defendant that he (or the courts in which he worked) had handled numerous cases involving senior Taliban members which the Taliban will not forget. He has fled from his home to protect himself. He feels too afraid to remain in Afghanistan.

I acknowledge the claimant’s plight which has weighed heavily on me. However, even applying close and anxious scrutiny to the matters raised by the claimant, I agree with Lord Murray that the Notes show that the defendant gave careful consideration to the claimant’s case. By providing the Notes and the Log in these proceedings, the defendant has provided the claimant with proper and adequate reasons for both the eligibility and the review decisions. There has been no error of procedure that is reviewable on public law grounds.

For these reasons, Ground 3 fails.

The claim is accordingly dismissed. I am grateful to counsel for their well-considered submissions in this anxious case.