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

Eligibility under Category 4 of the Afghan Relocations and Assistance Policy requires evidence that the applicant worked alongside a United Kingdom Government department, either in partnership with it or by closely supporting and assisting it. Working towards the same broad objective, such as the rule of law, is insufficient without evidence of the required relationship.

The separate Category 4 conditions must be assessed separately. Decision-makers may consider the whole picture of an applicant’s work, but they must not merge the requirement to have worked alongside a department with the requirement to have contributed to United Kingdom military or national security objectives. Standard Operating Procedures guide decision-makers but do not have statutory force or rigidly fetter the discretion.

The claimant, an Afghan national and former judge, sought judicial review of decisions refusing him support under the Afghan Relocations and Assistance Policy. The defendant decided that he had not shown that he worked alongside a United Kingdom Government department for the purposes of Category 4.

The claimant argued that the review decision failed to consider evidence of his judicial work, applied an impermissibly narrow approach by treating his civil-judge role as disqualifying, and unlawfully failed to refer his case to the Foreign, Commonwealth and Development Office under the relevant Standard Operating Procedures.

The central issues were the meaning of the Category 4 requirement and whether the defendant’s evaluation and referral decision were unlawful in public law terms.

1. The claim was dismissed. The defendant had reasonably concluded that the claimant had not established eligibility under Category 4.
2. Following R (LND1) v Secretary of State for the Home Department [2024] EWCA Civ 278, Condition 1 requires evidence that the applicant worked in Afghanistan alongside a United Kingdom Government department, either in partnership with it or by closely supporting and assisting it. The separate requirement to make a substantive and positive contribution to United Kingdom military or national security objectives must not be merged with Condition 1.
3. The claimant provided no evidence that he worked alongside the National Crime Agency or the Foreign, Commonwealth and Development Office. Attendance at a United Kingdom-funded workshop delivered by a foreign institution could not establish that he worked alongside a United Kingdom Government department. His general work promoting democracy and the rule of law did not, without more, satisfy Condition 1.
4. The defendant was entitled to consider that the claimant was a civil judge and had not tried terrorism cases. That fact was not decisive, but it was a relevant aspect of the overall assessment. The defendant had not ignored the claimant’s evidence concerning his judicial work or the risks arising from it.
5. The Standard Operating Procedures concerning referral of judges and prosecutors to the Foreign, Commonwealth and Development Office were guidance only. They had no statutory basis and did not rigidly fetter the defendant’s decision-making. In the absence of a reason to think that referral would produce a different result, failure to refer was neither unreasonable nor unfair.
6. The court declined to determine whether the humanitarian prerogative involved any enhanced standard of review. It nevertheless gave close scrutiny to the evidence and applied the conventional public-law approach. The disclosed Log and Casework Notes provided adequate reasons and disclosed no reviewable procedural error.

First-instance judicial review. No prior appellate decision concerning this claim is stated in the judgment.