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

In a discretionary and expedited public-law scheme, specialist decision-makers may give concise reasons and are entitled to evaluative respect. That does not remove procedural fairness or the need for coherent reasoning. Reasons must safely justify the result and must not reveal material misunderstanding, misapplication of the governing policy, or failure to engage with significant evidence.

Where an eligibility policy has been broadened, a decision-maker must apply the policy as it stood at the relevant time. It must not impose a superseded direct-employment requirement or treat illustrative examples as exhaustive. A judicial review decision should be remitted where those errors may have affected the outcome and the court cannot be highly confident that the result would have been substantially the same.

The claimant, an Afghan national, sought judicial review of a Defence Afghan Relocation and Resettlement Panel decision reaffirming his ineligibility for relocation under the Afghan Relocations and Assistance Policy. He had provided technical and communications services at British military camps and, according to his evidence, at British Embassy premises. The Panel rejected eligibility under Categories 1, 2 and 4, relying in part on the absence of direct employment and the nature and sufficiency of the evidence.

The challenge alleged irrationality, failure to consider relevant evidence, misapplication of the policy and breach of the Tameside duty of sufficient enquiry. The central issues were whether the Panel had applied the correct policy criteria, whether its reasons disclosed material errors, and whether relief should be refused because the outcome would probably have been unchanged.

1. Claim succeeded in part and the decision was remitted for reconsideration. The Panel was expert and its task evaluative. The court therefore afforded respect to its judgement and recognised that the duty to give reasons was attenuated by the scheme’s urgency, volume and discretionary character.
2. That attenuation did not displace procedural fairness or the requirement for coherent reasoning. The question of procedural fairness was objective. The reasons had to enable the result to be safely justified on the material before the Panel.
3. The Panel had misapplied the policy. At the relevant time Category 1 did not require direct employment. The same criterion was not applicable to Category 2. The examples of eligible roles under Category 2 were expressly non-exhaustive. The Panel’s reasoning nevertheless treated direct employment as disqualifying and the examples as definitive.
4. The disclosed reasons also revealed material errors in the treatment of the evidence. The Panel reduced the claimant’s work to a Wi-Fi-tower project, treated supporting evidence as merely character evidence, failed properly to recognise British involvement and the value and duration of his work, and stated that there was no evidence concerning aspects of risk when such evidence existed. The apparent failure to consider his work connected with the British Embassy was a further material procedural error.
5. The Tameside duty did not materially determine the case. In this context it was attenuated. The principal failures were misunderstanding and overlooking evidence, rather than failure to make further enquiries.
6. Relief was not refused under section 31 of the Senior Courts Act as amended by section 84 of the Criminal Justice and Courts Act 2015. Given the policy errors and evidential misunderstandings, the court could not be highly confident that the outcome would not have been substantially different. The Defendant was required to reconsider the claim under the properly construed policy and the material then available.