YMB & Ors, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs

Judicial review of an ARAP decision is concerned with legality, rationality and fairness, not with re-taking the underlying relocation decision. A challenge cannot succeed by asserting that the evidence met the relevant threshold or by inviting the court to substitute its own assessment.

For an additional family member, the applicable threat test required a high and immediate risk which was specific to that individual and related to the principal applicant’s work. The decision-maker was entitled to reject documents as unauthenticated where the evidence supported that conclusion. Where the applicant had already been told that the threat evidence was not verified and had an opportunity to provide material, fairness did not require a further opportunity to make representations.

YMB, an Afghan national evacuated to the United Kingdom under Operation Pilling, sought relocation for family members remaining in Afghanistan under the additional family members provisions of the Afghan Relocation and Assistance Policy. The Secretary of State refused the application, maintained that decision on review, and reached the same conclusion after an exceptional review.

The claimants challenged all three decisions on grounds of irrationality, failure to consider relevant matters and procedural unfairness. They argued that the Secretary of State had applied the wrong risk threshold, failed properly to assess evidence concerning threats arising from YMB’s work, and unfairly relied on closed material and rejected documents without further representations. The central issue was whether any of those grounds was arguable.

1. The renewed application was refused. The claimants’ grounds for judicial review were not arguable.
2. The court assumed, without deciding, that the June 2021 ARAP guidance was the relevant policy. Under that guidance, an additional family member had to face a high and immediate risk which was specific to that individual and related to the principal family member’s work.
3. The initial decision was not irrational. At that stage YMB had provided no proper evidence of a threat to the family members arising from his work. His later evidence concerning XYZ could not make the earlier decision irrational because it had not been before the decision-maker. In any event, the initial decision and first review decision had become academic after the exceptional review.
4. The court’s role was supervisory. The first review challenge did not identify a public law error. The Secretary of State was entitled to doubt the authenticity of fresh documents and was not required to accept the claimants’ assertion that the risk threshold had been met.
5. The exceptional review panel considered the evidence, including YMB’s work history, the alleged threat to C3, the position of C2 and the documentary material. It was entitled to conclude that the family members were not at elevated risk of targeted attacks, specific threats or intimidation putting them at high risk of death or serious injury because of YMB’s employment. The distinction between a targeted and a specific attack was not shown to be material, particularly as the panel had considered specific threats.
6. The fairness challenge failed. The use of closed material was authorised by Parliament under sections 6 and 8 of the Justice and Security Act 2013, and the procedure had been followed under the court’s supervision. The panel was also entitled to reject the threat letter without inviting further representations. Earlier decisions had already made clear that the threat evidence was not verified, giving the claimants notice and an opportunity to provide supporting material.
7. The parties were directed to seek agreement on a draft order, failing which the matter would be listed for a short hearing.

The claim was initially issued in the Upper Tribunal and was transferred to the Administrative Court by order dated 30 March 2023. Permission was refused on the papers by Lang J on 16 November 2023. The claimants renewed their application, which was refused by the High Court in this judgment.