CX1 & Ors, R (on the application of) v Secretary of State for Defence & Anor

For category 4 of the Afghan Relocations and Assistance Policy, an applicant must first establish one of the condition 1 relationships with a UK Government department before condition 2 falls to be considered. Working “alongside” a department requires some proximity, assessed on the particular facts; the substance of the work may be relevant, but general evidence that journalism advanced public or national interests is insufficient. Condition 2 asks whether the applicant made a substantive and positive contribution towards identified UK military or national security objectives. It does not require those objectives to have been the goal of the work. Applying the wrong test makes the decision unlawful, and relief may be granted where the court cannot say it is highly likely that the outcome would not have been substantially different.

The claimants were Afghan journalists who had worked for the BBC, BBC World Service, BBC Media Action and other organisations while UK forces were deployed in Afghanistan. They challenged decisions of 6 March 2023 finding them ineligible for category 4 of ARAP, as implemented by paragraph 276BB5 of the Immigration Rules.

CX1 and CX6 were accepted to satisfy condition 1(b), but were rejected under condition 2 because their work had not pursued UK national security objectives as its goal. CX4 and CX7 were rejected under condition 1. The claimants argued that the defendants had construed conditions 1(c) and 2 too narrowly and had failed to identify the relevant objectives.

1. Disposition. CX2 was granted permission to withdraw. The claims of CX4 and CX7 were dismissed. The decisions concerning CX1 and CX6 were quashed and their applications were remitted for redetermination in accordance with ARAP.
2. Policy interpretation. The court applied the objective approach to policy construction stated in Mahad v Entry Clearance Officer [2009] UKSC 16, R(O) v Secretary of State for the Home Department [2016] UKSC 19 and R(KA) v Secretary of State for the Home Department [2022] EWHC 2473 (Admin): the words, context, purpose and policy as a whole must be considered.
3. Conditions 1 and 2. Although factual matters may overlap, the structure of paragraph 276BB5 of the Immigration Rules requires condition 1(a), 1(b) or 1(c) to be satisfied before condition 2 needs consideration. The court therefore explained and qualified the approach in R (LND) v (1) Secretary of State for the Home Department (2) Secretary of State for Defence [2023] EWHC 1795 (Admin).
4. Condition 1(c). The claimant must show work alongside a UK Government department in some capacity, in partnership with, or closely supporting and assisting, that department. Some proximity may be expected, but the issue is fact-sensitive. Particular evidence of the relevant department, work and timing is required. General assertions about journalism, democracy, counter-narcotics or the BBC World Service are insufficient.
5. Condition 2 and relief. Condition 2 requires a substantive and positive contribution towards the achievement of relevant UK military or national security objectives; those objectives need not have been the goal of the work. The defendants had applied the wrong test to CX1 and CX6. The absence of a rationality challenge did not prevent that finding. Under section 31(2A) of the Senior Courts Act 1981, the court could not say that the outcome would highly likely have been substantially the same, so quashing and remittal were appropriate.

First-instance judicial review. The judgment records that the claimants’ earlier proceedings were decided by Lane J in CX1 and others v MOD and another [2023] EWHC 284 (Admin), which quashed earlier ARAP decisions. The present court quashed the later decisions for CX1 and CX6 and remitted their applications; it dismissed the claims of CX4 and CX7.