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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> BYK, R (On the Application Of) v Secretary of State for Defence [2025] EWHC 235 (Admin) (10 February 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/235.html Cite as: [2025] EWHC 235 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE KING ON THE APPLICATION OF BYK |
Claimant |
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- and – |
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SECRETARY OF STATE FOR DEFENCE |
Defendant |
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SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVELOPMENT AFFAIRS |
Interested Party |
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Lord Murray (instructed by Government Legal Department) for the Defendant and Interested Party
Hearing date: 18 December 2024
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Crown Copyright ©
MRS JUSTICE FARBEY:
Introduction
i. The defendant's decision of 22 August 2023 that he is ineligible for support under the Afghan Relocations and Assistance Policy ("ARAP"). I shall call this the "ineligibility decision";
and
ii. The defendant's decision of 8 April 2024 which adhered to the ineligibility decision after a review. I shall call this the "review decision."
i. Ground 1: The defendant was unreasonable to have concluded that the claimant's claim to have worked alongside a United Kingdom Government department was inadequately evidenced. The ARAP application was detailed and demonstrated that the claimant's work as a judge had brought him into contact with allies of the Taliban.
ii. Ground 2: The defendant was unreasonable to have concluded that the claimant could not qualify under Category 4 of ARAP because he was not a criminal judge dealing with terrorism cases.
iii. Ground 3: The defendant's decision to refrain from referring the case to the Foreign, Commonwealth and Development Office ("FCDO") was unreasonable. The failure to refer the case to the FCDO was contrary to the ARAP Standard Operating Procedures and so rendered the review decision procedurally flawed.
The ARAP scheme
Background
"16. Following the terrorist attacks against the United States of America on 11 September 2001, the United States led a military intervention against Al Qaeda groups and the Taliban Government in Afghanistan. The United Kingdom took part in the initial intervention. The military operation was subsequently supported by NATO and by a joint international force, known as the International Security Assistance Force or ISAF. The United Kingdom played a political, diplomatic and military role. Those activities continued between 2001 and 28 August 2021.
17. In May 2021, the Taliban launched a military offensive against the Afghan Armed forces. By 15 August 2021, the Taliban had seized control of Kabul. British and American forces retreated to Kabul airport from where they operated an emergency airlift for all NATO's civilian and military personnel, other foreign nationals and certain Afghans thought to be at risk from the Taliban. Operation Pitting was the name given to the United Kingdom's operation to evacuate British nationals and others at risk. The final British flight left Kabul on 28 August 2021. The final American flight left on 30 August 2021. Taliban fighters entered the airport. A Taliban Government has been in control of Afghanistan since that date."
Categories 1-3
Category 4
"The cohort eligible for assistance on a case-by-case basis are those who:
- on or after 1 October 2001 were directly employed in Afghanistan by a UK Government department; provided goods or services in Afghanistan under contract to a UK Government department; or worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department; and
- in the course of that employment or work or provision of services they made a substantive and positive contribution to the UK's military objectives or national security objectives (which includes counter-terrorism, counter-narcotics and anti-corruption objectives) with respect to Afghanistan; and
- because of that employment or work or provision of services, the person is or was at an elevated risk of targeted attacks and is or was at a high risk of death or serious injury; or
- hold information the disclosure of which would give rise to or aggravate a specific threat to the UK Government or its interests.
Checks will be made with the UK Government department by whom the applicant was employed contracted to or worked alongside, in partnership with or closely supported or assisted" (emphasis added).
Procedure in Category 4 cases
"5.10.5 Judges and Prosecutors – FCDO Referral
The vast majority of judges and prosecutors are likely not eligible; however, all judges and prosecutors are referred to [the Category 4 team] for consideration and referral to FCDO and/or NCA. Judges and Prosecutors may be at great risk of intimidation and threats, due to the nature of their work. This does not make them eligible for ARAP, unless they worked alongside British and Allied forces to ensure the stability of the country and ultimately ensure the success of the UK mission in Afghanistan. This may have included trying individuals that were members of the Taliban and other terrorist groups, who were released from prison when the allied forces withdrew, and Taliban took power" (emphasis added).
Facts
Claimant's ARAP application
"I would like to say that we worked under the leadership of the Supreme Court. And in Kabul the Supreme Court [held] initial meetings with donor countries such as the United Kingdom, the World Bank and others on the issue of justice and the rule of law in Afghanistan.
And then the judges headed by the Supreme Court were responsible for enforcing it. The leadership of the Supreme Court has met with representatives of the British government in this regard… According to the information, we did not participate directly in the decision-making meetings on strategy formulation.
…[T]he only people who are most intimidated and harassed by the Taliban are the judges because the Taliban who are now in power are being held captive by these judges, so they will never forget this situation.
…
I have been experiencing threats posed by armed insurgents and other criminal groups because of my employment with the Afghanistan government under the Supreme Court. My role was to bring legitimacy and to apply government law in different divisions, such as commercial court, military court and civil court."
The eligibility decision
The review
"We submit that our client's case has not been properly considered in accordance with the policy. It is our submission that our client potentially fits into Category 4 ARAP and our client has provided sufficient documentary evidence of our client's work as a judge to substantiate his claim. We endeavour to submit further representations with our client's documentary evidence.
We submit that it is also very difficult to engage with the refusal decision letter as there are no specific reasons for the refusal. We therefore invite you to ask [text incomplete in the original]."
"The Applicant does not provide any evidence of working in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department.
Any claim that the Applicant's work as a Supreme Court Judge was carried out alongside and/or in partnership with and/or closely supporting and assisting a UK government department does not go beyond mere assertions which do not expressly detail the nature of any such support, provide details of any relevant cases dealt with or any individuals/officials with whom he worked in partnership with or was closely supporting and assisting…
It is further considered that the Applicant, being a Supreme Court Judge in the Civil Division as so described by himself, did not specifically deal with any terrorist cases as his role was to engage in civil cases …" (emphasis added).
"In consideration of those agencies that might have potentially offered support to the Applicant, there was no merit for a referral to be made to the FCDO and as the NCA had previously declined to support the Applicant, no further action was taken in this respect. It was noted that the Applicant did not specify any explicit link to any UK agency by name and therefore the case was not referred."
Evidence post-dating the decisions under challenge
Attendance at workshop on fair trial standards
Claimant's witness statement
Legal framework
Focus of the claim
Meaning of Condition 1
"163 … by being willing to work as an Afghan judge (a role many others would not do) he personally and directly contributed to the furtherance of the rule of law in Afghanistan, which was a key aspect of HMG's mission there; the FCO and DFID (merged in 2020) was particularly concerned to ensure the fulfilment of that goal, and worked in Afghanistan to achieve it; the Claimant therefore 'supported' the FCO in achieving its aim by working as a judge; and as the FCO and he were working towards achieving the same goal, he worked 'alongside' them. Furthermore, officials from different departments from HMG headed the HPRT [i.e. the UK-led Helmand Provincial Reconstruction Team]" (emphasis added).
"168 … the [ARAP] Panel did not explain why working as a judge to uphold the rule of law in furtherance of the FCO's goals, which had officials on the ground in Afghanistan working on it as part of the HPRT and otherwise, was not sufficient to count as working 'alongside' and in 'support' of one of HMG's departments. There is scant reference to the rule of law having been one of HMG's key goals, nor any recognition of the role that an assiduous judge like the Claimant played in upholding the rule of law in terrorist cases and other serious criminal cases which engaged with HMG's mission. By doing the job they do, judges fulfilling the role which the Claimant fulfilled, upheld and developed the rule of law in furtherance of HMG's mission" (emphasis added).
Standard of review
The position of Afghan judges
Ground 1
Ground 2
Ground 3
Conclusion