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

ARAP Category 4 terms such as working alongside and in partnership with a UK Government department must receive their ordinary, objective meaning. Eligibility requires a holistic assessment of the applicant’s work, the institution in which it was performed, and the institutional or other connections with the relevant UK department. Institutional links may be relevant even where the applicant had no personal relationship with UK officials. The decision-maker must engage meaningfully with the evidence as a whole and distinguish the condition requiring work alongside a UK department from the separate condition requiring a substantive and positive contribution to UK objectives. A decision based on an unexplained category of personal partnership judges, inadequate engagement with corroborative evidence, or post-decision reasoning which fills defects in the original reasons is unlawful.

The claimant, a former Afghan judge who served in Kabul’s Anti-Terrorism Court from 2011 to April 2016, challenged the defendant’s refusal of his ARAP Category 4 application. He relied on his judicial work in terrorism cases, training and support provided under British auspices, contact with British officials, and evidence from a fellow judge who had been relocated to the UK.

The defendant concluded that the claimant had not worked alongside, in partnership with, or closely supported and assisted a UK Government department. The claimant alleged errors in interpreting the policy, failure to consider his evidence cumulatively, irrational treatment of the supporting witness, and failure to make reasonable inquiries. The central issue was whether the refusal lawfully applied the ARAP requirements to the evidence.

The claim succeeded and the second review decision was quashed. A fresh decision was required.

1. Meaning of the policy. The phrases working alongside, in partnership with, and closely supporting and assisting a UK Government department had to be given their ordinary, objective meaning. The defendant could not define them by reference to a particular factual model or by requiring a personal relationship with an individual official.
2. Institutional links and holistic assessment. The decision-maker had to consider the substance of the claimant’s work, the nature of the institution in which he worked, and the nature of any connections between that institution and the relevant UK department. The existence of an institutional relationship could be relevant even if not every judge had personal contact with British officials. The defendant had failed rationally to explain the selection of alleged partnership judges or to give material weight to the institutional relationship between the Anti-Terrorism Court and the FCDO.
3. Separate ARAP conditions. Whether an applicant worked alongside or in partnership with a UK department was distinct from whether the applicant made a substantive and positive contribution to UK military or national security objectives. The defendant had not proceeded to address the latter question.
4. Evidence and reasons. The defendant had failed to engage meaningfully with the claimant’s evidence as a whole. It irrationally treated detailed evidence as mere assertion, wrongly discounted training and possible payments, and failed to recognise that NAR’s evidence was itself corroborative. The decision also adopted an impermissible half-way approach by leaving unclear what parts of the claimant’s account were accepted.
5. Post-decision evidence and inquiries. Evidence generated after the decision required caution and could not cure inadequate contemporaneous reasons. If the defendant considered the identity of the arresting coalition force material, it had to make reasonable inquiries rather than take the absence of that information against the claimant.
6. Standard of review. Although anxious scrutiny was required given the fundamental rights engaged, it did not convert judicial review into a merits assessment. The ARAP provisions in the Immigration Rules did not justify a different standard of review on the basis that the underlying power was prerogative.

First-instance judicial review. The judgment does not state any appeal from this decision.