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

Under the Immigration Rules, assessment of ARAP Category 4 Condition 2 must address the employer’s services, their contribution to relevant UK objectives and the applicant’s own contribution. Institutional importance alone cannot establish eligibility. The applicant must personally make a substantive and positive contribution. The executive may adopt broad criteria, and its evaluative judgment attracts supervisory restraint, but it must give adequate reasons. Internal guidance which materially clarifies the evidential target must be made available to applicants. Failure to do so may make decisions unlawful even if decision-makers did not use the guidance. Permission was granted, the non-publication ground succeeded, and both refusals were quashed and remitted.

Two Afghan former security guards at the British Embassy, Kabul, challenged refusals of their applications under ARAP Category 4. The refusals accepted that each claimant satisfied Condition 1 but concluded that neither had made the required substantive and positive contribution under Condition 2.

The claimants alleged unfairness through non-publication and non-application of Category 4 guidance, an undisclosed exclusion policy, fettering or misinterpretation of Condition 2, and irrational decision-making. One claimant remained in Afghanistan; the other had entered the United Kingdom under the Afghan Citizens Resettlement Scheme while pursuing ARAP to assist his adult children.

Disposition. Permission to apply for judicial review was granted to both claimants. Ground 1 was allowed and grounds 2, 3 and 4 were dismissed. The refusals were quashed and remitted for reconsideration, with any further submissions to be made within 28 days.

1. Condition 2. The court applied the approach in R (LND1) v SSHD [2024] EWCA Civ 278. The decision-maker had to consider the nature of the services provided by the employer, the contribution those services made to the relevant objectives, and the individual applicant’s contribution. The institution’s importance could not by itself establish eligibility. The focus remained on whether the applicant personally made a substantive and positive contribution.
2. Alleged exclusion and fettering. There was no operative policy excluding British Embassy guards as a class. Historical policy intentions had not been implemented. The referral procedures and case notes showed individual consideration. The FCDO Sponsorship Information Note had not been provided to the caseworkers, who had been directed to apply the published criteria and relevant guidance.
3. Rationality. The court’s role was supervisory and it could not substitute its own evaluation for that of the decision-makers. The reasons had to be assessed as a whole, without over-scrutinising isolated passages. The decision-makers were entitled to consider the claimants’ private employment, lack of military status, absence of military coordination and the nature of their training. Grounds 4 therefore failed.
4. Publication and fairness. The Cat 4 Operational Guidance gave applicants a clearer evidential target than the broad policy wording. Following CHD [2026] EWHC 566 (Admin) and Lumba v SSHD [2011] UKSC 12, the court held that the guidance should have been made available. Its non-disclosure denied the claimants a transparent opportunity to formulate their cases, whether or not the decision-makers had used it.
5. Relief. Under section 31(2A) of the Senior Courts Act 1981, relief could be withheld only if it was highly likely that the outcome would not have been substantially different. That threshold was not met because access to the guidance could have enabled materially stronger submissions.