Afghan resettlement: The Court of Appeal has told the Ministry of Defence that they must reconsider whether an Afghan former Supreme Court judge is eligible for resettlement to the UK under the Afghan Relocations and Assistance Policy (ARAP). This followed an unsuccessful appeal by the Home Secretary and the Defence Secretary in R (LND1 & Ors) v Secretary of State for the Home Department & Anor[2024] EWCA Civ 278.
Background
The first respondent, LND, held various judicial and other roles in Afghanistan between 2008 and August 2021 when the Taliban took over. This included being a judge at the Supreme Court of Afghanistan where he was the Director General of the Directorate of Investigation and Studies and was involved in the Counter Narcotics Justice Centre, which was funded by the UK.
LND and his family went into hiding after the Taliban took over and they applied for relocation under ARAP in September 2021 and then again in November 2021. The Ministry of Defence contacted him on 23 February 2022 asking for more details of his role and whether he had been directly employed by or worked alongside the UK. He responded to this on 28 February 2022.
Due to the length of time he had been waiting for a decision, LND brought a judicial review challenging the delay in April 2022. The judicial review was withdrawn by consent in October 2022 after a timetable for a decision was agreed.
On 9 December 2022 LND was advised that he was deemed ineligible for ARAP as he did not meet the conditions at paragraph 3.6 of Appendix Afghan Relocation and Assistance Policy (ARAP). The decision was communicated by a pro forma which did not contain any reasons for the decision, and a covering email that said detailed reasons were not usually provided but as this decision had been made following a court order they were providing “high-level reasons”. These were that LND had not demonstrated that he worked with a UK government department.
LND successfully challenged this in the High Court, with Swift J holding that the refusal was wrong and irrational and that the only rational decision that could be reached in this case was that LND met both conditions 1 and 2 of paragraph 3.6 and so the Defence Secretary would need to decide whether conditions 3 or 4 were met. Swift J also held that the reasons for an eligibility decision had to be given and it was not enough to rely on a pro forma, although he concluded that in this case reasons had been provided in the covering email.
LND had also requested an administrative review of the decision, but this had not been carried out. The Secretaries of State had raised this in the High Court as a reason the judicial review should be dismissed but they did not pursue that in the Court of Appeal (perhaps unsurprisingly given they do not seem to have done anything with the administrative review).
The Court of Appeal
The Secretaries of State appealed Swift J’s decision on four grounds:
(1) His construction and application of the ARAP Scheme, specifically by conflating Conditions 1 and 2;
(2) His finding that LND satisfied the eligibility criteria under conditions 1 and 2;
(3) His finding, in any event, that the only rational outcome was that LND’s application had to be granted; and
(4) His finding that the reasons given in the pro-forma decision letter were insufficient.
The Court of Appeal agreed that the High Court had wrongly conflated conditions 1 and 2. However, despite this error, the Court of Appeal held that the decision of 9 December 2022 was still unlawful because of the Ministry of Defence’s failure to properly consider whether LND’s work was done with (i.e. either in partnership or closely supporting and assisting) a UK government department or the British armed forces.
On the third ground of appeal, the Court of Appeal agreed with the Secretaries of State that the judge had fallen into error and should have quashed the decision rather than saying that the only outcome could be that LND met conditions 1 and 2. The judge had also failed to specify the appropriate remedy when granting the judicial review, which would generally be a quashing order setting aside the decision under challenge, which must then be remade.
On the duty to give reasons, the Court of Appeal dismissed this ground, stating:
Given the nature and significance of the eligibility decision, procedural fairness does require more than the simple giving of pro-forma reasons to the effect that the applicant does not meet one of the conditions. It is not necessary, nor appropriate, in this case to consider the precise content of the duty to give reasons. It is sufficient to say that, in general, the reasons must adequately address the principal points relied upon by the applicant. The reasons may be brief and what will be adequate will generally depend upon the content of the decision and the points raised by the applicant.
The Court of Appeal therefore quashed the decision and said that it was for the Defence Secretary to make a new decision on LND’s eligibility.
Underhill LJ made a separate point at the end of the decision, saying that he did not find the second ground of appeal straightforward as some of the evidence provided by LND was in very general terms. He provided an important reminder that, notwithstanding the recognised difficulties that people will have in providing evidence in support of these applications, “it is worth emphasising the importance of them giving as much specific information as they can about their relationships with the UK government and its officials.”
Interested in refugee law? You might like Colin’s book, imaginatively called “Refugee Law” and published by Bristol University Press.
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