MA, R (on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs & Anor
[2024] EWHC 332 (Admin)
LND1 & Ors v Secretary of State for the Home Department & Anor
14 July 2023
[2023] EWHC 1795 (Admin)
High Court
An Afghan judge who worked against the Taliban applied to move to the UK. The government said no, but the court said the government didn't look at all the evidence properly, so they have to reconsider the application.
Key Facts
- •First Claimant is an Afghan national who held judicial positions in Afghanistan from 2008-2021.
- •He applied for relocation to the UK under the Afghan Relocations Assistance Policy (ARAP) scheme.
- •His application was refused on the grounds that he didn't meet the eligibility requirement (ARAP 3.6, Condition 1).
- •The Claimants challenged the decision on several grounds: the eligibility decision was wrong and irrational; the Secretary of State for Defence acted unlawfully by placing an excessive evidential burden; inadequate reasons were given; and the eligibility decision should have been made by the Home Secretary.
- •The ARAP scheme has eligibility requirements (ARAP 3.1-3.7) and entry clearance requirements (Part 9 of the Immigration Rules).
Legal Principles
ARAP 3.6, Condition 1 requires a qualitative assessment of whether an applicant 'worked... alongside a UK government department in partnership with or closely supporting or assisting' it. The words should be given their ordinary meaning in context.
ARAP 3.6, Judgement of Mr Justice Swift
The common law duty of fairness requires sufficient reasons for an eligibility decision, but what constitutes 'sufficient' is fact and context-specific.
Common law, R(CX1 and others) v Secretary of State for Defence [2023] EWHC 284 (Admin)
A measure falling under the Immigration Act 1971 must be made using the procedure in section 3(2), even if applied by a Secretary of State other than the Home Secretary.
R(BAPIO Action Limited) v Secretary of State for the Home Department [2008] 1 AC 1003
Decisions taken by departmental officials are, in law, decisions of the relevant minister (Carltona principle), unless statute requires otherwise.
Carltona Limited v Commissioner of Works [1943] 2 All ER 560
Outcomes
Ground 1 (the eligibility decision was wrong and irrational) succeeded.
The Secretary of State for Defence incorrectly applied ARAP 3.6, Condition 1 by considering it in isolation from Condition 2 and focusing on peripheral matters instead of the substance of the First Claimant's work and its contribution to UK national security objectives in Afghanistan. The judge found that on a proper application of the conditions, there is only one legally permissible outcome: the First Claimant meets Conditions 1 and 2.
Grounds 2, 3, and 4 failed.
Ground 2 (excessive evidential burden) was redundant given the outcome of Ground 1. Ground 3 (failure to give reasons) was partially addressed by the email, and even if not, the context of the high volume of applications and translation needs would make overly detailed reasons disproportionate. Ground 4 (eligibility decision should have been made by the Home Secretary) failed because the ARAP scheme allows for the Home Secretary to rely on eligibility decisions made by another Secretary of State using criteria within the Immigration Rules, this is not impermissible delegation.
Similar Cases
MP1, R (on the application of) v Secretary of State for Defence
[2024] EWHC 410 (Admin)
LND1 & Ors, R (on the application of) v The Secretary of State for the Home Department & Anor
[2024] EWCA Civ 278
JZ v Secretary of State for the Home Department & Ors.
[2023] EWCA Civ 178
FMA & Ors v Secretary of State for the Home Department
[2023] EWHC 1579 (Admin)