High Court allows judicial review claim of Afghan Judge who contributed to UK mission in Afghanistan and was denied relocation to UK

In a 58-page judgment delivered on 4 March 2024, Mr Justice Julian Knowles ruled that the decision of the Defence Secretary rejecting the (anonymous) claimant’s application for relocation to the UK pursuant to the Afghan Relocations and Assistance Policy (“ARAP”), was unlawful. 

The claimant is a lawyer and former Afghan Judge who, for 13 years during the period of the UK’s mission in Afghanistan (2001-2021) worked in exposed roles which were central to the establishment of the rule of law in the country, which was a key aspect of Her Majesty's Government (HMG)’s mission. 

Across his various roles, the claimant dealt with cases including: murder; violence against women; public security; terrorism; kidnapping; drug smuggling; and corruption.  The perpetrators were often the Taliban and Daesh (formerly known as Isis) and he sentenced and imprisoned Taliban members who subsequently obtained high positions in the present Taliban following the Taliban takeover in August 2021. 

Earlier, as a defence lawyer, the claimant had also worked alongside the legal section of his local ‘Provincial Reconstruction Team’, which was British led and which was focused upon the establishment of a functioning and respected state legal system in replacement of the Taliban ‘sharia’ network.   The funding for his role as a lawyer for a voluntary organisation came from the UK. 

The claimant performed this work when many others would not and at great personal risk: he was the only permanent security Judge in his area. 

In March 2020, the claimant was the subject of a documented assassination attempt by the Taliban and just before the city of his residence was overrun by the Taliban in 2021, he was evacuated from the area by military aircraft.  The claimant and his family were then forced into hiding and have moved from place to place.  There is evidence that the Taliban are searching for them.     

The purpose of ARAP was to provide for the relocation to the UK of certain eligible Afghan nationals (and their immediate family members) in recognition of the commitment and bravery shown by them and in order to honour the service that they have provided in support of the UK’s mission in the country.   

Mr Justice Julian Knowles ruled that the decision of the MoD was flawed on the following grounds (taken together): 

• the Defendant had failed to have sufficient legal regard to the evidence before it (not least a report from a former MoD consultant);
• the Defendant had failed to provide sufficient and adequate reasoning for its decision;
• the decision that the claimant had not fulfilled the criteria under ARAP that require an applicant to have “worked in Afghanistan alongside a UK government department, in partnership with our closely supporting and assisting that department” and to have made a “positive contribution towards the achievement of the UK government’s national security objectives [including counter-terrorism, counter-narcotics and anti-corruption]” was irrational – this was one of those rare cases where the only conclusion reasonably open to the decision-maker was that these criteria were met.   

The Court gave detailed reasons for its finding that the claimant’s work, as a lawyer and a Judge, had evidently been “alongside UK government departments” and that, by fairly and assiduously judging terrorist cases, the claimant had contributed to the UK’s counter-terrorism and national security mission, and that, his wider work as a defence lawyer and then a Judge had contributed to the rule of law more broadly which formed part of the UK’s key strategic objectives.

Separately, the Court found that the legal approach of the MoD to its own policy (in particular the meaning of “working alongside”) was flawed and, in parts, amounted to semantics.  

The Secretary of State must now give urgent consideration to the question of whether the claimant meets the outstanding criteria under ARAP (not considered in the original decision), namely whether he “is or was at an elevated risk of targeted attacks”.  That question must be assessed in the light of the (apparently accepted) fact that the claimant has been the subject of numerous Taliban threats, included a documented assassination attempt (see above).

Zoe Cooley, solicitor for the claimant (Wilson Solicitors LLP), said as follows:-

“The work that our client performed in Afghanistan between 2008 and 2021, first as a lawyer and then as a Judge, was clearly central to the UK government’s mission and objectives in Afghanistan.

“At immense personal risk, our client sentenced and imprisoned Taliban members who subsequently obtained high positions in the Taliban regime.  He was a senior Judge in an area where the British mission and troops were heavily involved and issued arrest and search warrants against the Taliban which were actioned.  He was the subject of repeated threats, including a documented assassination attempt upon him in March 2020.  The family are in hiding, two of his children are sick; and they are being sought by the Taliban.

“The UK government has said it will assist Afghan judges; and it has a moral, as well as a legal, responsibility to bring our client and his family to safety. 

“We are delighted that the Court, in a strong and completely comprehensive judgment, has found for our client on all the grounds that were argued before it. 

“The case has already been delayed since 2021 and we hope that the government will now act very swiftly to meet its commitments and bring this family to the UK before it is too late.”

The judgment is available here.

The case has been covered in BBC News and the Law Society Gazette.