MP1, R (on the application of) v Secretary of State for Defence

The meaning of the Afghan Relocations and Assistance Policy is an objective question for the court. The policy must be read naturally, as a whole, and in context. Under Category 4, conditions 1 and 2 are interdependent where an applicant relies on working alongside a UK government department. The assessment is functional and must consider the substance of the applicant’s work, the institutions involved, their connection with UK departments and the contribution made to UK military or national security objectives. A decision-maker must properly consider material expert evidence, give coherent reasons and apply anxious scrutiny where refusal may expose the applicant to serious harm.

MP1, an Afghan lawyer and former judge, challenged the Ministry of Defence’s decision upholding the refusal of his application for relocation under the Afghan Relocations and Assistance Policy. His application relied on Category 4, concerning work alongside, in partnership with, or closely supporting a UK government department, together with a substantive and positive contribution to UK military or national security objectives.

The Second Review Panel concluded that he had not established the required connection with a UK government department. It did not materially engage with his evidence, including an expert report concerning the role of the Afghan judiciary in the UK’s mission. The central issues were whether the Panel had considered the evidence and given adequate reasons, and whether it had misconstrued Category 4.

1. The claim succeeded. The Second Review Panel’s decision was quashed. The court held that the Claimant satisfied conditions 1 and 2 of Category 4 of ARAP. The Defendant was required to consider whether condition 3 or condition 4 was met.
2. The interpretation of ARAP was for the court. The policy had to be construed objectively, according to the ordinary meaning of its words, read as a whole and in context. It was wrong to ask merely whether the Panel’s interpretation was reasonable: [2024] EWHC 410 (Admin) [121]-[131].
3. Following R (CX1) v Secretary of State for Defence [2023] EWHC 284 (Admin) and R (LND1) v Secretary of State for the Home Department [2023] EWHC 1795, the phrase “worked alongside” required a functional assessment. Significant activities closely aligned with the democracy-building or rule-of-law activities of a UK department could satisfy condition 1. Conditions 1 and 2 had to be considered together, particularly where the applicant was neither employed by nor contracted to a UK department. The relevant question was whether the substance of the applicant’s work made the necessary substantive and positive contribution and was sufficiently connected with UK governmental objectives.
4. The Panel failed to engage with the expert evidence of Mr Foxley, which was detailed, referenced and directly concerned the Claimant’s case. Its reasons did not explain why the Claimant’s judicial work in terrorism, narcotics and corruption cases did not support the UK’s national security objectives. The Panel instead imposed the unexpressed and more restrictive requirements of a “substantive link” or “direct link”.
5. The Panel also adopted an unfair evidential approach. It neither rejected the Claimant’s account nor accepted and assessed it. If it required further detail about particular cases, it should have put that concern to him and sought clarification. Post-decision evidence could not contradict or substantially supplement the contemporaneous reasons.
6. In the circumstances, the reasons were legally inadequate and the decision was irrational. The Claimant’s work as a defence lawyer and senior judge, particularly in terrorism, counter-narcotics and corruption cases, plainly made a substantive and positive contribution towards UK national security objectives and involved significant activities closely aligned with UK rule-of-law and democracy-building objectives. Conditions 1 and 2 were therefore satisfied.

First-instance judicial review in the Administrative Court. The decision of the Second Review Panel was quashed. The Claimant was held to satisfy conditions 1 and 2 of Category 4, with conditions 3 and 4 left for the Defendant to determine.