Important judgment on the correct approach to assessing eligibility under ARAP

Tuesday 20 February 2024

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Challenge to ARAP refusal

On 16 February 2024, judgment was handed down in R(MA) v Secretary of State for Foreign, Commonwealth, Development Affairs and the Secretary of State for DefenceThe Court found that the Defendants’ decision to refuse MA’s application for resettlement under the Afghan Relocation and Assistance Policy (‘ARAP’) was unlawful.

MA challenged the Defendants’ wholly irrational conclusions and misapplication of Conditions 1c and 2 of paragraph 276BB5 of the Immigration Rules that incorporate the criteria of ‘working alongside, in partnership with or closely supporting and assisting an HMG department’, and ‘making a substantive and positive contribution towards the achievement of HMG’s military objectives or national security objectives’ respectively.  

The determination of MA’s ARAP application was based on the Immigration Rules in operation at the time: Part 7, Paragraph 276BA1 – 276BS5. Although these rules have since been replaced by Appendix ARAP that commenced on 30 November 2022, the substance of the criteria remain the same and therefore the guidance in this judgment applies with equal force to ARAP 3.6 Conditions 1 and 2.

In his judgment, Mr Justice Swift identified at the outset the integral role played by HMG in reconstituting and re-establishing the Afghan state through the Bonn Agreement and the Afghan Compact that, importantly, set reform to the justice system as one of its objectives [at § 5, 28].

Summary of MA’s work and profile

As described in the judgment, MA was a highly distinguished jurist and legal scholar who had held senior judicial positions. He played a central role in drafting and ratifying the new Afghan Constitution following the US-led invasion in 1996. He was later appointed as Head of Legal Reform at the Afghan Ministry of Justice and Head of the Criminal Law Reform Working Group responsible for redrafting the Afghan Penal Code – work undertaken in furtherance of the Afghan Compact. He was sub-contracted by an organisation on behalf of the UK’s then-FCO to deliver training on the new Penal Code to judges and prosecutors as part of the “Security and Justice Programme in Afghanistan”. Separately, MA was Legal Advisor to the Anti-Corruption Monitoring and Evaluation Committee (“the MEC”) - an institution part funded by the UK and established to achieve the objectives set by the Afghan Compact.

Useful guidance in the judgment

This judgment endorses the correct approach to assessing eligibility under Condition 1c and 2, as first identified in R(LND1) v Secretary of State for the Home Department [2023] EWHC 1795 (Admin), namely that the ARAP policy requires consideration in the round of all the circumstances in which the work relied on came to be and was undertaken [at § 24]:

“…Whether work was performed in the circumstances specified in condition 1c will almost always be informed by the nature of the work itself. The matters relevant to the qualitative assessment required by condition 2 will also likely indicate whether the requirement in condition 1c is met. The proper approach to condition 1c is, to this extent, holistic.”

Swift J reiterated that a mechanistic approach to assessing Condition 1c is likely to lead the decision-maker into error [at § 25-26].

The judgment provides further helpful guidance on assessing ARAP eligibility when an applicant worked for a body or institution that received funding from HMG:

  • For the purposes of the ARAP conditions it is immaterial that funding for work undertaken in furtherance of HMG’s national security objectives (such as MA’s work on the CLRWG) was provided indirectly, via UNAMA and UNODC, rather than directly by an HMG government department [at § 30].
  • The Defendants’ conclusion that MA’s work for the Anti-Corruption MEC was not eligible under ARAP on the basis that it was “an independent body that was supported financially by a number of international donors” was identified as being either inconsistent with their approach in other cases or irrational [at § 32-34]:
  • On the independence point see, by contrast, the Defendants’ acceptance that Judge W met the equivalent of Condition 1c despite working for a court that was self-evidently independent of HMG (referred to by Lang J in R(S and AZ) v Secretary of State for the Home Department [2022] EWHC 1402 (Admin) [at 101 and 108] and by Hill J in R (JZ) v Secretary of State for the Home Department [2022] EWHC 2056 (Admin) [at 40 and 41]). Similarly, LND1’s ARAP application, based on his work as a judge, had not failed because the independence of the court where he worked took the application out-with Condition 1c (R(LND1) v Secretary of State for the Home Department [2023] EWHC 1795 (Admin) [at 15])).
  • On the source of the financial support point, it was noted that the Defendants provided no explanation as to why the existence of other donors was significant for the purposes of Condition 1c. Swift J saw no rational reason why it should be, highlighting that there is nothing in the language of Condition 1c capable of being understood as meaning that the required association could only exist when HM government was the sole provider of financial support. Financial assistance for the MEC from other states only served to underline the importance of its anti-corruption work.

Finally, the judgment underscores that the reasons in support of an ARAP refusal need to go further than merely asserting that the criteria has not been met. In MA’s case, the “ARAP Panel Notes” failed to provide “any qualitative evaluation of the evidence” provided by MA, thus rendering the decision in Wednesbury unreasonable [at § 20].

Declaratory relief granted – only one legally permissible outcome

Exceptionally but justifiably, based on the evidence of MA’s work (none of which was disputed by the Defendants), Swift J not only declared unlawful and quashed the ARAP refusal, but declared that on reconsideration there would be only one legally permissible outcome; namely that MA meets Condition 1 and 2 of ARAP.

The ARAP application was therefore remitted to the Defendants only to consider eligibility under the remaining Condition 3 or 4 [at § 38].

Closed Material Proceedings

Applications for Closed Material Proceedings are increasingly becoming a feature of ARAP judicial review challenges. Such an application was made by the Defendants in MA’s case.

A declaration was made by the court under section 6 of the Justice and Security Act 2013 (‘JSA’) that MA’s claim for judicial review was proceedings in which a closed material application may be made by the court. The Defendants also applied for an order under section 8 of the JSA and CPR 82.13 for permission to disclose sensitive material otherwise than to the court and to the Special Advocates appointed to represent MA. The closed proceedings remain on-going.

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