MA, R (on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs & Anor

Judicial review of decisions under the Afghan Relocation and Assistance Policy requires the court to distinguish legal questions from evaluative judgments. Contractual questions under conditions 1a and 1b are matters of law for the court. Conditions 1c and 2b require a holistic and evidence-based evaluation, with appropriate judicial restraint.

Condition 1c cannot be applied mechanically by focusing only on direct funding, formal employment, or personal contact with government officials. The decision-maker must consider the nature of the work, the institutions involved, the connection with the United Kingdom and the contribution to relevant objectives. A conclusion under condition 2b that ignores material evidence or rests on a clear misunderstanding is unlawful and Wednesbury unreasonable.

The claimant, a distinguished Afghan jurist, challenged decisions refusing his application for assistance under the Afghan Relocation and Assistance Policy. The decisions accepted that his work delivering training under the Security and Justice Programme Afghanistan satisfied condition 1b, but concluded that it did not make a substantive and positive contribution to United Kingdom national security objectives.

The decisions also rejected reliance on his work drafting the Afghan constitution and penal code, chairing the Criminal Law Reform Working Group, and advising the Anti-Corruption Monitoring and Evaluation Committee. The central issues were the proper interpretation and application of conditions 1c and 2b of paragraph 276BB5 of the Immigration Rules.

1. Nature of judicial review. Conditions 1a and 1b refer to established contractual concepts. Whether a contract existed, and its terms, are questions of law which the court may determine for itself. Conditions 1c and 2b involve evaluative judgments not expressed by reference to discrete legal concepts. The court must therefore give appropriate weight to the decision-maker’s assessment, while still ensuring that relevant matters were considered and irrelevant matters disregarded.
2. Condition 2b. The review decision misunderstood the evidence by treating the claimant’s training work as limited to 11 days. The evidence, considered in the round, showed regular training of judges and prosecutors between February 2018 and October 2019. The new penal code was central to the anti-corruption objective, and the claimant’s leading role in formulating it enhanced the significance of his training. The conclusion that his work made no substantive and positive contribution was demonstrably wrong and Wednesbury unreasonable.
3. Condition 1c. The condition requires a holistic assessment of the circumstances in which the work was undertaken. The court applied the approach stated in R(LND1) v Secretary of State for the Home Department [2023] EWHC 1795 (Admin). The claimant’s work on the penal code involved sustained collaboration with United Kingdom civil servants, indirect United Kingdom funding through United Nations organisations, and work aligned with United Kingdom strategic objectives. His work for the MEC was also within condition 1c. The MEC’s independence and receipt of funding from other donors were relevant considerations but were not determinative.
4. The work on the Constitutional Review Commission, considered in isolation, could lawfully have been treated as pursuing a shared agenda. That did not affect the outcome because the other work independently satisfied conditions 1c and 2.
5. The refusal decisions were quashed. The court substituted conclusions that the training work satisfied condition 2, and that the claimant’s work on the penal code and for the MEC satisfied conditions 1c and 2. The application was remitted to the Secretary of State to determine whether condition 3 or condition 4 was met.