High Court quashes ARAP decision for Afghan anti-terrorism judge

The High Court has quashed the Ministry of Defence's refusal of relocation under the Afghan Relocation and Assistance Policy (ARAP) for a former Afghan judge who served in Kabul's Anti-Terrorism Court between 2011 and 2016.

Background

The claimant presided over approximately 360 cases involving Taliban members, including sentencing Mohammed Khan to death for a 2010 suicide bombing at a Kabul supermarket frequented by British personnel. He received training from UK officials, attended seminars organised by HMG, and worked alongside judges who were subsequently relocated to the UK under ARAP.

The defendant refused the application on 14 February 2025, concluding the claimant had not "worked alongside" a UK government department "in partnership with or closely supporting" it, as required by ARAP Category 4. This decision was informed by a Foreign Office assessment stating it was "unlikely" anyone not personally known to the FCDO Counter-Terrorism Team could satisfy these criteria.

The judgement

Sir Peter Lane allowed the claim on four grounds, finding the decision-making process fundamentally flawed.

The court held the defendant erred in focusing on whether the claimant was a "specific partnership judge" rather than considering institutional links between the FCDO and the Anti-Terrorism Court. From September 2015, HMG developed an institutional partnership with the court, providing logistical support, training, and equipment. The claimant served until April 2016, overlapping this partnership by approximately seven months.

The judgement criticised the defendant's "partnership judge" concept as unintelligible, lacking any coherent explanation of selection criteria. Evidence suggested judges may not have known they were considered "partners", and that attendance at hearings observed by UK officials appeared to depend on chance assignments by administrative directors.

The court found the defendant failed to consider evidence cumulatively or holistically. The caseworker dismissed claims as "mere assertions" despite detailed evidence, including witness testimony from another judge (NAR) who served alongside the claimant and was himself relocated under ARAP. The decision left unclear what evidence, if any, was accepted—what Julian Knowles J described in R (MP1) v Secretary of State for Defence as an unfair "halfway house approach".

Treatment of NAR's corroborative evidence was found irrational. The caseworker stated NAR's witness statement was "uncorroborated and does not support [the claimant's] claim"—failing to recognise that NAR's statement itself constituted corroboration.

The court also held the defendant irrationally required evidence that British (rather than coalition) forces arrested defendants, then failed to investigate this matter despite the claimant having no access to such records whilst in hiding from the Taliban.

Post-decision evidence from the FCDO was approached with "considerable circumspection", reflecting the inherent risk of ex post facto rationalisation.

The decision was quashed for reconsideration, with the court noting that whilst institutional links alone may not always suffice, the defendant must properly evaluate their significance alongside other evidence in a genuinely holistic assessment.