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

Under the ARAP policy, identifying the United Kingdom’s historical national security objectives is an objective question of past fact. The decision-maker must identify those objectives at the time the applicant provided the relevant services. The court determines that issue from the evidence, although historical evidence from the executive may assist.

This differs from reviewing the Government’s prospective or contemporary choice of national security objectives, where institutional competence may justify substantial deference. A material error about the historical objectives, or reasoning that fails to engage with evidence supporting eligibility, renders the decision unlawful. Caseworker guidance which adds materially specific criteria to a published policy must also be published where affected persons could make informed or meaningful representations about it.

The claimant, an Afghan national at serious risk from the Taliban, challenged the defendant’s refusal of his application for relocation to the United Kingdom under the Afghan Relocation and Assistance Policy. He satisfied Condition 1 of Category 4, but the defendant concluded that his work for a United Kingdom-funded justice-sector organisation did not make a substantive and positive contribution to United Kingdom national security objectives in Afghanistan.

The claimant alleged material errors of fact, inadequate reasoning and unlawful reliance on unpublished FCDO guidance. Following the hearing, the defendant withdrew the decision, undertook to reconsider the application urgently, and agreed that the guidance would be withdrawn and published. The court nevertheless exercised its discretion to give judgment because the issues affected other ARAP cases.

1. Disposition. Permission to apply for judicial review was granted on Grounds 1 and 2. The defendant’s withdrawal meant that no quashing order was required, but the claimant’s ARAP application required urgent reconsideration. The court would have quashed the decision.
2. The ARAP policy is interpreted objectively, by its natural and ordinary meaning, read as a whole and in context. Under Condition 2, the relevant national security objectives are those existing when the applicant provided the services satisfying Condition 1.
3. Identifying those historical objectives is a factual question with a single correct answer. It is distinct from reviewing the Government’s choice of national security objectives, which may involve executive assessment and a high threshold of review. The defendant’s assertion that promotion of a functioning justice system and the rule of law was not a national security objective was unsupported and contradicted by the historical evidence.
4. The error was material. The assessment treated work for the organisation as unlikely to contribute significantly to national security objectives and thereby approached the claimant’s individual role from an erroneous premise. The decision was therefore unlawful on the free-standing ground of material error of fact.
5. The reasoning also failed to show that the decision-makers considered evidence linking the organisation’s work to counter-narcotics and anti-corruption objectives, or evidence that the claimant held a senior and key role. In an ARAP decision, adequate reasons must enable the applicant to understand why the criteria were not met and must show that factors favouring the applicant were properly considered.
6. The unpublished guidance supplied materially more specific criteria than the broad published policy, including requirements concerning programme documentation and expressly identified objectives. Applying R (Lumba) v SSHD and R (TPL1) v SSD, the guidance was the kind of policy material requiring publication. Ground 2 was effectively conceded.
7. The court declined to apply the evaluative-deference reasoning relied on from R (on the application of AFA) v The Secretary of State for the Home Department, because this case concerned identification of past objectives, not review of the Government’s choice of objectives. The court’s conclusion was also supported by the approach in R (CX1) v SSD and R (MP1) v Secretary of State for Defence.

Not stated in the judgment.