LND1 & Ors v Secretary of State for the Home Department & Anor

Eligibility under the ARAP scheme must be assessed by applying the ordinary meaning of the words in ARAP 3.6. Conditions 1 and 2 are interdependent. For applicants relying on the third limb of Condition 1, the decision-maker must consider the applicant’s work, the institutions involved, the relationship with United Kingdom government departments and the contribution to United Kingdom military or national security objectives in the round.

The assessment cannot be reduced to whether a United Kingdom department provided specific support at the relevant time, knew the applicant personally or paid the applicant. Where eligibility depends on an assessment of personal circumstances against non-mechanical criteria, fairness ordinarily requires brief reasons explaining why the evidence did not satisfy the criteria.

The claimants sought judicial review of the refusal of the first claimant’s application under the Afghan Relocations Assistance Policy. The Secretary of State for Defence concluded that he did not satisfy ARAP 3.6, Condition 1, because he had not worked alongside, in partnership with, or closely supported or assisted a United Kingdom government department.

The claimants alleged that the decision was irrational, imposed an excessive evidential burden, failed to give adequate reasons and should have been made by the Home Secretary. The central issues were the proper construction and application of ARAP 3.6 and the allocation of decision-making responsibility under the Immigration Rules.

1. Ground 1 succeeded. The Secretary of State for Defence had considered Condition 1 in isolation from Condition 2. That was unlawful because Conditions 1 and 2 are interdependent. Condition 2 identifies the substantive contribution required, while Condition 1 operates as a filter concerning the connection through which that contribution was made.
2. The words in ARAP 3.6(a)(iii) are ordinary words and should be applied according to their ordinary meaning in context. Additional glosses such as a real and substantial connection, close relationship or high degree of connection were unhelpful.
3. The decision-maker had focused on peripheral matters, including whether the Foreign, Commonwealth and Development Office regarded itself as being in partnership with the Kabul Terrorism Court at the relevant time, whether the applicant was known to particular officials and whether he appeared on a payment schedule. The decision-maker should instead have considered the substance of the work, the institutions in which it was performed, the institutional relationships and the contribution to United Kingdom objectives in Afghanistan.
4. On the accepted evidence, the first claimant’s extended work in leading judicial and legal institutions meant that he met Conditions 1 and 2. A further remittal on those conditions was unnecessary. The Secretary of State for Defence remained required to decide whether Condition 3 or Condition 4 was met and, if so, any issue under ARAP 3.7.
5. The complaint concerning an excessive evidential burden added nothing separate to Ground 1. The reasons challenge also failed on the facts because the pro-forma letter was supplemented by the 9 December email. However, the judge stated obiter that, had the pro-forma letter been the only reason, brief reasons explaining why the evidence failed to satisfy the criteria would have been required.
6. The Home Secretary was entitled to frame Immigration Rules under section 3(2) of the Immigration Act 1971 under which eligibility was assessed by another Secretary of State. The Carltona principle did not prevent that arrangement, and reliance on information from other departments did not alter the identity of the decision-maker.

The claim succeeded on Ground 1 and failed on all other grounds.