QP1 & Anor, R (on the application of) v Secretary of State for The Home Department & Anor

The Claimants are Afghan nationals who seek relocation to the UK. The basis of their applications is the activities and roles said to have been performed by the First Claimant (QP1) in Afghanistan prior to the Taleban retaking control of that country, and the threats they face from the Taleban as a result of QP1’s activities. The Second Claimant (QP2) is the wife of the First Claimant. There are ongoing OPEN judicial review proceedings which seek to challenge decisions concerning QP1’s eligibility under the Afghan Relocations and Assistance Policy (“the ARAP”) and refusals to consider his applications for leave outside the rules (LOTR), or for leave on an exceptional basis. The ARAP governs the circumstances in which His Majesty’s Government (“HMG”) will grant leave to Afghan citizens to relocate to the UK. No issue arises before me in relation to the ARAP.

The issue in this CLOSED “rolled-up” hearing is the legality of the Second Defendant’s decision by letter dated 29 April 2024 (“the Decision”), to refuse to offer relocation assistance or non-relocation assistance to the Claimants on a different basis (that is, outside the ARAP). The Decision was made in the context of what I will refer to as the “Data Incident”. That matter wasconsidered in some detail in a CLOSED Divisional Court judgment in CX1 and MP1 v SSHD [2024] EWHC 892 (Admin) at [13]-[21]. The judgment of the Divisional Court (Dingemans LJ, Johnson and Chamberlain JJ) was given by Johnson J. I will refer to this case below as “CX1”.

On the conclusion of the CLOSED hearing on 23 July 2024, I announced my decision to dismiss the CLOSED grounds where I had granted permission. These are my reasons.

As a result of the Data Incident the data of about 25,000 ARAP applicants may have been compromised. Johnson J for the Divisional Court in CX1 set out HMG’s policy response to the Data Incident at [16]-[37] and in particular HMG’s approach of identifying those in the breach who had high profile roles which placed them at the highest risk of being targeted by the Taleban. See [57]-[61] of CX1 where in a limited and particular respect, certain claims succeeded requiring reconsideration of the high profile issue, which the court underlined was ultimately a matter for the Defendants’ factual assessment: see [54]. The Divisional Court’s judgment was, save in the isolated respect I have identified, an endorsement of the legality of HMG’s approach to the Data Incident and in particular of its identification of those to be prioritised in a situation fraught with risk, and where significant allocation of resources would be required: only those who held high-profile roles would qualify for relocation. HMG was held to have lawfully adopted a policy approach which required a prioritisation of specific types of case defined by reference to roles undertaken by the applicant. The very point of the policy was to deal with an inability to make an individualised assessment of the risks faced in each case.

The fact of the Data Incident has not entered the public domain. Although a written judgment is not yet available, I understand that the Court of Appeal has recently allowed an appeal against the decision of Chamberlain J discharging contra mundum injunctions restraining disclosure of the Data Incident: see the PRIVATE and CLOSED judgments in Ministry of Defence v Global Media and others [2024] EWHC 1220 (KB). I will call this case Global Media.

At some point in the future, the fact of the Data Incident may enter the public domain and may give rise to OPEN arguments on behalf of the Claimants. But as matters presently stand, the contra mundum injunction prohibiting disclosure remains in force. Accordingly, the challenge in issue in the present case has to be made in CLOSED proceedings.

Following CX1, I gave judgment in CY [2024] EWHC 1817 (Admin). That was a challenge to a decision made concerning CY’s application to relocate to the UK in circumstances where his data had been compromised in the Data Incident. I upheld the Defendants’ decision to refuse the application on the basis that CY did not fall within the high profile risk category or a high profile person at “equivalent risk”: see [29] and following concerning Ground 2 in that case. This form of risk rating was referred to in CX1 and was drawn from the MOD threat assessment (“the threat assessment”) referred to in some detail in CX1 (it is also in evidence in the present case). My attention was drawn by Mr O’Brien KC for the Defendants to various parts of the threat assessment.

In the interests of brevity, I will not repeat the general background described in Global Media, CX1 and CY and take them as read for the purposes of the present case. On the morning of the hearing before me, an approved note of an ex tempore judgment of Jay J on 18 July 2024 in the case of AFA and 6 others was provided to me. Jay J sets out at [10]-[27], a helpful analysis of CX1, which I respectfully adopt. I also expressly agree in particular with his conclusion at [25] that the Divisional Court in CX1 decided that the HMG policy which was focussed on the role of the subject was “rational and therefore lawful”.

QP1 is amongst those whose personal data was compromised in the Data Incident. By an Order of 16 April 2024, Kerr J made a direction that the Defendants were to decide by 23 April 2024 on the action, if any, to be taken to address the risk to the safety of the Claimants by reason of the Data Incident. The Decision was made pursuant to this direction and records that it follows consideration of his case and explains that in the Defendants’ view: “…[n]either of the Claimants fall within the highest-risk category, whether because they are high-profile individuals who performed specific roles identified in the MOD’s list, or because they are high-profile individuals who performed other roles who are at equivalent risk, depending on their particular circumstances…”.

The Special Advocates (“the SAs”) challenge the Decision on three grounds as set out below. The third ground is a proposed amended ground. I have had regard to the detailed facts more fully set out in the two OPEN bundles before me (which Mr Ahmad KC helpfully took me to in some detail at the hearing). I will provide a high-level summary for the purposes of addressing the arguments before me.

The First Claimant (QP1), aged 35 years, says that prior to the occupation by the Taleban he worked as a translator for Inteqal Consultancy Services (August 2011-January 2012) and this role involved “translating manuals of vehicles and tanks donated by the US and the international community to the former Afghan Security forces from English to Dari”. His case is that he also worked for NGOs such as Medecins Sans Frontiers (2011-2020); and that he twice represented Afghan missions in Paris and The Hague. QP1 says he and his wife are Shia Muslims and Hazaras, and they are subject to risks by reason of these attributes. My attention was also drawn to the range of roles undertaken by QP1 as he describes in his CV. The Claimants are said to be currently in hiding. QP1’s evidence is that his brother’s house was twice looted by the Taleban and they approached his brother stating QP1 to be an infidel Hazara and spy for the Americans. QP1 was not in fact a spy. It is not suggested any of these events relate to the Data Incident and compromise of his data. It is said however that the Data Incident elevates the level of existing risk which QP1 faced as a result of his many public-facing activities, which were of a nature which the Taleban strongly opposes.

The Second Claimant (QP2), is QP1’s wife. She is aged 29 years and is a doctor. Her role is not said to be material to the issues before me. Her data was not compromised in the Data Incident.

I turn to the grounds. Although put in a number of ways, Grounds 1 and 2 essentially come down to the same point: that in the light of the compromise of QP1’s data in the Data Incident, it was irrational not to relocate him and his wife to the UK, when his already elevated risk position is assessed. Draft amended Ground 3 makes a distinct complaint to the effect that HMG is under some form of positive obligation to assist those with relatively simple cases like the Claimants (being just a couple and not a large family) who are the subject of the Data Incident. It is said that HMG is obliged to provide non-relocational aid, such as financial assistance, to the Claimants.

The first ground is that it was irrational to treat the question of whether QP1 was a high profile individual as what the SAs called a “condition precedent” in determining whether he fell into the highest risk category. This issue concerns the analysis in CX1 at [57]-[58]. In some of the written submissions of the SAs on this issue, these paragraphs were analysed as if they were a statute. With respect to the SAs, I consider that the position is in fact much more straightforward.

In my judgment, the effect of CX1 is that it was lawful at the level of policy for HMG, in deciding who to relocate in the light of the Data Incident, to consider whether a relevant applicant was a high-profile person performing one of the roles in the MOD’s list, or was a person performing another high-profile role putting them at effectively equivalent risk. That is the “very difficult decision” (see [57]) which HMG had to take in formulating policy. Like Jay J in AFA, the Divisional Court in substance rejected the rationality challenge to this policy at [55]-[59].

The approach taken in the Decision to the Claimants’ case is a faithful application of the policy endorsed as lawful in CX1. In short, the Decision shows that the facts of his case were considered and the correctness of the factual basis for the claims was assumed (without deciding that matter) to be true. The Second Defendant decided on these facts that QP1 did not fall within a specified high-profile role in the MOD’s list or a high-profile role with equivalent risk.

As it was developed orally, it appeared to me that in reality the complaint under this ground was that the policy should not have been applied to the Claimants, or that it is in fact not wide enough if it does not cover them. That this is the real complaint is revealed by the fact that the SAs complain that some form of “condition precedent” was applied in deciding whether QP1 was a high profile person. But this claimed “condition precedent” is in fact simply applying the terms of the policy. There could of course be other ways in which HMG could, with resource implications in mind, have devised a different policy involving analysis of each separate case. But they did not do so, and the Claimants clearly fail on the rational policy adopted by HMG.

For completeness, I should state that the SAs’ argument does not become stronger by saying that the Defendants have failed to take into account “relevant considerations” in QP1’s case, applying conventional public law principles. The application of a lawful policy means that only certain matters are taken into account in determining an application. The policy determines what is, or is not, relevant. The endorsement by the Divisional Court of the rationality of HMG’s policy precludes the Claimants’ arguments that they are entitled to an individualised general assessment of their case as to risks elevated by the Data Incident.

This is an alternative to Ground 1. The SAs argue that when all the relevant circumstances are taken into account, QP1 in fact falls to be treated as a high profile individual, and to decide otherwise was irrational. Mr Ahmad KC confirmed in response to my questions at the hearing that his case was that QP1 fell within the second limb of the policy (as a non-listed high profile person facing equivalent risk to listed roles). Ultimately, the challenge under this ground raised a factual issue.

In essence, the argument is that because he may have been targeted by the Taleban (because of a misperception on their part as to his role as a spy (which it is agreed he was not)), and given his past activities, including his public-facing roles, QP1 is a high profile person within the highest risk category. I do not accept this submission. The MOD assessment recognises that all affected individuals are at risk. It identified examples of high profile roles. QP1 plainly is not such a person. I refer also in this regard to the CLOSED witness statement of Laurence Thackwray of Defence Afghanistan Relocation and Resettlement at [15]. The incorrect perception that QP1 is a “spy” does not, for the reasons given by Mr Thackwray, place him at equivalent risk, nor does being of the Shia religion and Hazara heritage place him within that category. I consider, adopting the language at the end of [58] in CX1, QP1 could not on any view be considered in a high profile category, either as an individual, or by focussing on what he says was his role.

In coming to this conclusion, I have had regard to the facts drawn to my attention by Mr Ahmad KC in the OPEN bundles (in particular QP1’s descriptions of his various activities in civil society initiatives and alongside allied forces and NGOs). QP1 is far-removed from persons such as the judge and journalist who were considered in CX1 case. He may, regrettably, be someone who might be targeted as described in the MOD threat assessment, but the Defendants’ factual assessment of his circumstances as a person who falls outside the policy cannot be said to be irrational.

The SAs seek permission to amend this ground on the terms I summarise as follows. In essence, it is said that it is becoming “difficult to justify” (some 10 months on from the Data Incident) the “lack of a clear plan or any tangible support” for those who are not deemed eligible for protection. As formulated in writing, the complaint under this ground does not seem to be one which sounds in public law. It is said that it is irrational not to consider in the Claimants’ case some form of “bespoke notice and financial assistance” (SAs’ skeleton argument at [69]).

The short answer to the submission as to notice is that HMG remains in a pre-“break glass” situation as described in the Defendants’ skeleton argument at [49]. Notice cannot be given to the Claimants of the Data Incident.

As to the claim for non-relocational financial assistance to the Claimants on a case specific basis, there is no public law basis to say that there is any form of positive obligation to provide assistance to particular individuals. The acts being taken by HMG and the policy response to the Data Incident have been undertaken in the exercise of the Royal Prerogative on a gratuitous basis and not under any legal duty. HMG is not under any duty to mitigate the damage caused by the Data Incident. I refer in this regard to CX1 at [49].

Putting aside that threshold problem with the argument, there are substantial operational and risk related considerations which arise were financial assistance to be provided to the cohort affected by the Data Incident. I refer in this regard to the witness statement of 20 March 2024 of Mrs Moore in the Global Media proceedings at [179]-[187].

I do not consider Ground 3 as amended in the form I describe above, raises any arguable ground for judicial review.

I grant permission to apply for judicial review on Grounds 1 and 2. I refuse permission on Ground 3. I dismiss the CLOSED Grounds 1 and 2.

The Special Advocates have made a written application dated 24 July 2024 for permission to appeal. They have asked that I deal with this on the papers. It is argued that there is a realistic prospect of success in relation to Grounds 1 and 2 or that there is “some other compelling reason” to grant permission.

As to the first basis for permission, I do not consider there to be any realistic prospect of success in relation to Grounds 1 and 2. In short, I dismissed those grounds because it was not irrational on the undisputed facts for the Defendants to have decided not to relocate the Claimants following the Data Incident. I also consider that the Defendants correctly applied the decision in CX1. I read that decision, as did Jay J in AFA, as determining that it was lawful for the Defendants to address the very difficult situation which had arisen through a policy which prioritised those who were classed as high profile persons with particular roles or as high profile in other roles with equivalent risk. Had the Divisional Court decided that a detailed individualised consideration of the position of every one of the 20,000 or so persons affected by the Data Incident (irrespective of their profile) was required in law, that Court could not have decided that the actual limited policy (which does not require this action) was lawful.

As to some other “compelling reason” to grant permission, it will be a matter for the Court of Appeal to decide whether there is a compelling public interest reason for granting permission to appeal. In this regard, a Divisional Court (CX1) and the Court of Appeal (in the Global Media proceedings) have considered the implications of the Data Incident from a number of perspectives. It should be for the Court of Appeal to decide whether the policy response to the Data Incident should be the subject of further judicial consideration. HMG’s response to the Data Incident was classically a matter of difficult policy-making where the court’s role of review must be limited. The Court of Appeal should itself decide whether there is arguable legal basis for challenging that policy decision.