Afghan judge was wrongly refused ARAP application for relocation to the UK

The Claimant LND1 worked as a judge in Afghanistan up to the Taliban’s reconquest of the whole of the country in August 2021. From 2009 to 2012 he worked in the Primary?Court for Crimes Against Internal and External Security in Kabul (known as “the Terrorism Court”)?as the Court’s chairman.?During this stage of his career LND1 sentenced hundreds of?Taliban combatants.?From 2013?to?2016 LND1 worked at?the Afghanistan Supreme Court and was responsible for establishing the rules and procedures of the Anti-Corruption and Justice Centre.

When the Taliban succeeded in taking over all of Afghanistan LND1 went into hiding with his family and applied for relocation to the United Kingdom under the UK government’s Afghan Relocations and Assistance Policy (ARAP).?The policy forms part of the UK’s immigration rules although it is peculiar in that eligibility for relocation is decided not by the Home Office (or Entry Clearance Officers) but by the Secretary of State for Defence.??

In this two-stage process if the Ministry of Defence (MOD) concludes an applicant is eligible the Home Office then decides whether to issue a visa to enable the applicant to come to the UK with their family members.?The process of decision making has developed in this way because the MOD was actively engaged in Afghanistan along with all NATO forces since 2001. Its role was more prominent than that of other government departments.

As a judge LND1 never had anything to do with the MOD, but in considering his application the MOD sought information from the Foreign,?Commonwealth and Development Office (FCDO) and also the National Crime Agency (NCA), who had also had a presence in Afghanistan before August 2021.??Because these latter government departments said that they could find no records showing that?LND1 had worked for them or with them at the time when they were actively providing support in Afghanistan the MOD found LND1 was not eligible for relocation.

The criteria for eligibility in the ARAP immigration rules, in particular the first two “Conditions” set out in ARAP 3.6,?are scrutinised?in Mr Justice Swift’s judgment in R (LND1) v Secretary of State for the Home Department and Secretary of State for Defence and Foreign,?Commonwealth and Development Office [2023] EWHC 1795 (Admin) granting LND1’s application for judicial review which was handed down this morning.??

The approach of the MOD in deciding whether the LND1 had worked “alongside” the FCDO or the NCA focussed on Condition 1, regarding?a close relationship between him and the relevant department as necessary.?This was incorrect because what mattered in terms of the criteria in the rules was not whether the applicant had worked somewhere in Afghanistan at the time the relevant government department had been providing support or if anyone in that department remembered them, but the kind of work the applicant had been doing.??

This was the significance of Condition 2, whereby the applicant must have:

“made a substantive and positive contribution towards the achievement of one or more of the following:

(i) the UK Government’s military objectives with respect to Afghanistan; or

(ii) the UK Government’s national security objectives with respect to Afghanistan (and for these purposes, the UK Government’s national security objectives include counter-terrorism, counter-narcotics and anti-corruption objectives).”

When these criteria were properly applied the only possible conclusion was LND1’s work had furthered the UK government’s national security objectives in Afghanistan, and?the MOD had indicated that it accepted LND1’s account of his career as true.??His claim therefore succeeded.

Now that LND1 has met the first two conditions for his eligibility for ARAP the MOD must now decide whether he is in danger.?If they do, it will be for the Home Office to decide whether or not to grant him and his family visas to come to the UK.??

LND1 was represented by Ramby de Mello and Edward Nicholson?