AC-2023-LON-001736 |
KING'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
Vice-President of the King's Bench Division
and
MR JUSTICE JOHNSON
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THE KING (on the application of CX1, CX2, CX4, CX6 and CX7) ("CX1 No.2") |
Claimants |
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-v- |
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(1) SECRETARY OF STATE FOR DEFENCE - and (2) SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVELOPMENT AFFAIRS |
Defendants |
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David Blundell KC, Nicholas Chapman and Natasha Jackson (instructed by Government Legal Dept) for the Defendants
Hearing date: 15 December 2023
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Crown Copyright ©
Lord Justice Dingemans:
Introduction
Previous proceedings
ARAP and the Immigration Rules
"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 an HMG department; provided goods or services in Afghanistan under contract to an HMG department; or worked in Afghanistan alongside an HMG department, in partnership with or closely supporting that department; and
- in the course of that employment or work or provision of services they contributed 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 HMG or its interests.
Checks will be made with the HMG department or unit by whom the applicant was employed, contracted to or worked alongside, in partnership with or closely supported or assisted."
"276BB5. A person falls within this paragraph if the person meets conditions 1 and 2 and one or both of conditions 3 and 4. For the purposes of this paragraph: (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 counterterrorism, counter-narcotics and anti-corruption objectives);
(iii) condition 3 is that because or that employment, that work or those services, the person:
(a) is or was at an elevated risk of targeted attacks: and
(b) is or was at high risk of death or serious injury;
(iv) condition 4 is that the person holds information the disclosure of which would give rise to or aggravate a specific threat to the UK government or its interests." (emphasis added).
Some procedural matters
"1. Whether the Defendants' decisions dated 6 March 2023 that the Claimants were not eligible for relocation under category 3 of [ARAP] were unlawful for one or more of the following reasons:
Ground 1: a. The First and/or Second Defendant misinterpreted the relevant part of condition 1 of ARAP Category 4. They wrongly considered that, to work "alongside a UK Government department, closely supporting and assisting that department", there had to be a sufficiently close formal relationship between the applicant or the organisation for which they worked, and a UK government department; and that the substance of the applicant's work and the extent to which the substance of the work itself closely supported and assisted the UK Government could not, taken alone, satisfy that criterion. b. Further, or alternatively, the First and/or Second Defendant failed to consider whether the substance of each Claimant's work itself demonstrated they met this criterion. Ground 2: c. In finding that CX1 and CX6 did not meet condition 2 of ARAP Category 4, the Second Defendant failed to ask whether each Claimant made a substantive and positive contribution to the UK's military objectives or national security objectives, as specified in condition 2. This was a misinterpretation of that policy, and/or a material error of objectively verifiable fact. d. Further or alternatively, the Second Defendant failed to consider whether certain aspects of each Claimant's work made a substantive and positive contribution to those objectives.
Relief
2. Whether to grant the following relief, set out in the N461: a. An order quashing those decisions. b. An order requiring the Defendant to reconsider those decisions. c. Other relief that the court considers appropriate. d. Costs."
Issues
The relevant factual background
The letter dated 20 February 2023
CX1 and the decision dated 6 March 2023
CX4 and the decision dated 6 March 2023
CX6 and the decision dated 6 March 2023
CX7 and the decision dated 6 March 2023
The claimants' request for reviews
Some relevant authorities on the interpretation of policies and ARAP
Whether the claimants satisfied condition 1(c) of category 4 of ARAP (issue one)
The proper interpretation of condition 2 of ARAP Category 4 (issue two)
The military or national security objectives (issue three)
Relief (issue four)
Conclusion
Mr Justice Johnson