LND1 & Ors, R (on the application of) v The Secretary of State for the Home Department & Anor

Eligibility under ARAP 3.6 requires each specified condition to be satisfied separately. Condition 1(iii) requires work alongside a UK government department, either in partnership with it or closely supporting and assisting it. A contribution to UK military or national security objectives under condition 2 cannot itself establish that relationship.

The assessment of condition 1(iii) ordinarily requires consideration of the whole picture, including the applicant’s work, the institutions involved and their links with UK departments. Material aspects of an application must be investigated and considered. If a public authority’s decision is unlawful, the court should ordinarily quash it and remit the matter rather than determine an evaluative question entrusted to that authority. Procedural fairness also requires reasons addressing an applicant’s principal points; a bare pro-forma refusal is insufficient.

An Afghan former Supreme Court judge applied under the Afghan Relocations and Assistance Policy. He relied on work relating to counter-narcotics, the drafting of penal and anti-narcotics legislation, and service at Kabul’s court for internal and external security. The Ministry of Defence decided that he had not worked alongside, in partnership with, or closely supported and assisted a UK government department.

Swift J allowed his judicial review claim in [2023] EWHC 1795. He treated conditions 1 and 2 of ARAP 3.6 as part of a single exercise and declared that the applicant satisfied both conditions. The Secretaries of State appealed. The respondent’s cross-appeal concerning responsibility for eligibility decisions was withdrawn.

The central issues were the proper construction of conditions 1 and 2, whether the eligibility decision had considered all material aspects of the application, whether the court could determine eligibility itself, and whether procedural fairness required individualised reasons.

1. Appeal allowed in part. Conditions 1 and 2 of ARAP 3.6 impose separate requirements. Condition 1 concerns the proximity between the applicant’s work and a UK government department. Condition 1(iii) requires work alongside such a department, either in partnership with it or closely supporting and assisting it. Condition 2 separately asks whether that work made a substantive and positive contribution to UK military or national security objectives. The High Court therefore erred by conflating the conditions and treating condition 2 as the more important requirement.

2. When condition 1(iii) is assessed, it will usually be necessary to consider the whole picture. Relevant matters are likely to include the substance of the applicant’s work, the nature of the institutions in which it was performed, and the connections between those institutions and UK government departments. The contribution made by an institution to UK objectives principally concerns condition 2 and does not itself satisfy condition 1(iii).

3. The Ministry of Defence had lawfully assessed the applicant’s involvement with the Counter Narcotics Justice Centre. However, it had not adequately considered whether his legislative drafting work involved institutional links with the Foreign, Commonwealth and Development Office, or whether his judicial work between 2008 and 2012 involved links with the British armed forces. The eligibility decision was therefore unlawful for failure to consider material matters and, possibly, to make relevant inquiries.

4. Judicial review is supervisory. Responsibility for an evaluative decision remains with the public authority entrusted with the function. Where such a decision is unlawful, the ordinary remedy is to quash it and remit the matter for reconsideration. The High Court erred by deciding that the applicant necessarily satisfied conditions 1 and 2.

5. Procedural fairness required reasons which adequately addressed the principal matters relied upon by the applicant. Reasons could be brief, but a pro-forma statement that an eligibility condition was unmet would have been inadequate if it had stood alone. The volume of applications and possible translation burdens did not outweigh that requirement.

The court unanimously varied the High Court’s order, quashed the decision of 9 December 2022 and remitted the application to the Secretary of State for Defence for reconsideration.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 278, the court allowed the appeal in part, corrected the interpretation of ARAP 3.6, varied the order below, quashed the eligibility decision and remitted the application for reconsideration.
• High Court, Administrative Court: Swift J, in [2023] EWHC 1795, allowed the judicial review claim and held that the applicant satisfied conditions 1 and 2 of ARAP 3.6. The Court of Appeal set aside that determination of eligibility while upholding the conclusion that the administrative decision was unlawful on a different basis.