“In addition to [considering the evidence submitted by JZ], I have applied my own knowledge developed through heading the Counter Terrorism Team at the British Embassy in Kabul (BE Kabul) since January 2021 to its closure in August 2021. I consulted with my team who worked with me there and who on my behalf undertook enquiries with Afghan judges relocated to the UK under Operation PITTING. These confirm that [JZ] was a judge, who most recently sat in the Traffic Courts in Kabul. My knowledge of the application of military and civilian law in justice operations at Bagram Air Base is limited. I note that in June 2010, the Justice Centre in Parwan became an Afghan controlled and operated court that benefitted from mentoring and training by coalition forces. Prior to June 2010 (during the applicant’s employment) cases were prosecuted under the US Law of Armed Conflict and it was a US military establishment.”
“individuals who (1) had worked in a role that made a material contribution to HMG’s mission in Afghanistan, and (2) without whose work the UK’s operations would have been adversely affected, and (3) who were now at risk because of their work given the changing situation in Afghanistan.”
“2. On the evidence provided to me, I have concluded that the applicant was indeed a judge within Afghanistan and sat as a judge at the Justice Centre in Parwan (referred to in the evidence bundle as Bagram Air Force Base) and at Pol-e-Charki prison. I note the threats the applicant claims are against him. I am personally aware of threats made against other members of the Afghan Justice System that considered issues of Afghanistan’s national security. 3. I note that the US Marshals Service provided support and training whilst [JZ] worked at the Justice Centre in Parwan demonstrating the high threat he faced in 2008-11. [JZ’s] own statement (para 15, page 11 of the evidence bundle) references that some of those he convicted would have been released by now. In addition, I am aware that many other prisoners have now been released either as a consequence of the US Taliban peace deal (referred to in the statement) or the thousands of detainees let out of prison by the Taliban following the collapse of the Afghan Government. 4. The translated threat document (pages 25 to 27 of the evidence bundle) does make reference to [JZ] having “imprisoned many of our members/personnel”, whilst this might well be a consequence of his time at the Justice Centre in Parwan, there is no mention of his involvement with international forces or foreign governments. 5. In light of these considerations, whilst I accept that [JZ] is at risk, I am not satisfied that the threat to [JZ] is heightened as a consequence of engagement with the United Kingdom. My decision not to sponsor this application are further based on the following factors: 6. I have no evidence to lead me to believe that [JZ] was an employee of Her Majesty’s Government, nor does it refer to work alongside or in cooperation with HMG units. The Justice Centre in Parwan was not a UK or HMG led intervention and from June 2010 was indeed an Afghan institution – albeit one that benefitted from extensive donor support. 7. Based on the evidence reviewed, it does not appear to me that [JZ] made a material contribution to HMG’s mission in Afghanistan. The UK’s capacity building effort around justice and the rule of law over the last nine years was focussed in Kabul – that was also the focus of HMG’s counter terrorism mission in Afghanistan. As [JZ] does not claim to have worked in the anti-terrorism courts within Kabul he did not make a material contribution to HMG’s mission there. Based on my limited knowledge of military operations in Afghanistan and the limited detail about [JZ’s] involvement with HMG provided in the evidence bundle, I cannot come to an alternative view. 8. In view of the above, it is not apparent that the UK’s operations would have been adversely affected without [JZ’s] work. As stated in paragraph 7, the UK’s counter-terrorism mission was focussed in Kabul. As [JZ] did not work there, his contribution to the UK’s counter terrorism mission was minimal. Mr English’s letter of support highlights [JZ’s] role in hearing cases to determine if detainees should continue to be detained under Afghan law and how this facilitated the exit of ISAF. However, from my position in determining whether the FCDO Counter-Terrorism team within the Afghanistan Task Force should sponsor [JZ] the case does not provide clear evidence on how [JZ’s] work supported UK counter-terrorism operations”
“As is made clear in the ARAP Decision at [paras] 5-6, the decision-maker was not satisfied that your client had worked alongside HMG and was not satisfied that any risk he now faces has increased as a consequence of engagement with the UK. Properly understood, the ARAP Decision makes no finding that the risk to your client is insufficiently grave as you suggest… …the ARAP Decision-maker was not satisfied that your client had worked alongside HMG and was not satisfied that any risk he now faces had increased as a consequence of engagement with the UK. You suggest that this was a misapplication of the policy, and that all that is required is that “this risk be on account of ‘their work’. There is no limit as to who the work was for”
“There is an established principle of public law that “all persons in a similar position should be treated similarly”, see Stanley Burnton J. in R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales[2004] EWHC 144 at [74], quoting Lord Donaldson MR in R(Cheung) v Hertfordshire County Council, The Times4 April 1998 . Any discretionary public law power “must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it”, see Sedley J. in R v MAFF, ex parte Hamble Fisheries[1995] 2 All ER 714 at 722a-b. One reason for that rule is that it provides consistency in decision making, and some certainty about the application of rules.”
“[24] Whatever the position in European law or under other constitutions or jurisdictions, the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law. Consistency, as Lord Bingham said in the passage relied on by the appellant (para 19 above), is a “generally desirable” objective, but not an absolute rule. [26] …in domestic administrative law issues of consistency may arise, but generally as aspects of rationality, under Lord Diplock’s familiar tripartite categorisation… [31] Fairness, like equal treatment, can readily be seen as a fundamental principle of democratic society; but not necessarily one directly translatable into a justiciable rule of law. Addition of the word “conspicuous” does not obviously improve the precision of the concept. Legal rights and remedies are not usually defined by reference to the visibility of the misconduct…. [41] …procedural unfairness is well-established and well-understood. Substantive unfairness on the other hand - or, in Lord Dyson’s words at para 53, “whether there has been unfairness on the part of the authority having regard to all the circumstances” - is not a distinct legal criterion. Nor is it made so by the addition of terms such as “conspicuous” or “abuse of power”