AFA & Ors, R (on the application of) v Secretary of State for Home Department & Anor [2025] EWHC 2143 (Admin)

[2025] EWHC 2143 (Admin)Case No AC-2023-LON-001449
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 th August 2025
Before
MR JUSTICE GARNHAM
Between
R ON THE APPLICATION OFClaimantAFA & OTHERSClaimant(1) SECRETARY OF STATE FOR HOME DEPARTMENTDefendants(2) SECRETARY OF STATE FOR DEFENCEDefendant
R de Mello and Edward Nicholson (instructed by Luke & Bridger Law) for ClaimantsAlan Payne KC and Sian Reeves (instructed by Government Legal Department) for DefendantsHearing Hearing dates: 10 th July 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 13 th August 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE GARNHAM

INTRODUCTION

[1]These proceedings concern an application by the Clamant and his family under the Afghan Relocations and Assistance Policy (“ARAP”), the criteria for which are set out in an Appendix to the Immigration Rules which replicates the policy.[2]The First Claimant (hereafter, “the Claimant”), known in these proceedings as AFA, challenges, on his own behalf and that of his wife and children (who are the other Claimants), two decisions made by the Second Defendant, the Secretary of State for Defence (“the SSD”). The first was dated 6 November 2023, the second dated 19 December 2023. Each was made on the basis of an assessment by the Secretary of State for Foreign, Commonwealth and Development Affairs (“the SSFCDA”). The first decision was to the effect that the Claimant was not eligible under category 4 of ARAP (“the eligibility decision”). The second decision (“the review decision”) confirmed the first after reconsideration by the SSFCDA. Since the review decision supersedes the eligibility decision, the latter is now academic, and the focus of this judgment is on the challenge to the review decision.[3]This case has a somewhat complex procedural history but there is a single ground of challenge, namely that the SSD’s decision that the Claimant was not eligible under ARAP category 4 is wrong in law or is Wednesbury unreasonable. The parties had produced an agreed list of issues where that ground is identified as Issue 1. Issue 2 concerns the question of relief to which I will return if I find for the Claimant on Issue 1.[4]It was agreed that Issue 1 may involve consideration of the following questions: i) whether the SSD failed to conduct such inquiries as were required in law by reason of the Tameside duty of enquiry, ii) whether the SSD erred in his consideration of condition 2 by failing properly to assess whether the Claimant’s work as a driver made a “substantive and positive contribution toward the achievement of … UK’s national security objectives”, iii) whether the SSD made a material error of law in their assessment of the objectives of the two programmes on which the First Claimant worked, and iv) whether the SSD’s decisions are Wednesbury unreasonable due to a failure to take into account material factors.

PROCEDURAL ISSUES

[5]The procedural history is set out in an agreed chronology. Immediately before the hearing before me on the 7th July 2025 there were three outstanding procedural issues, namely whether the Claimant should be granted permission to rely upon the second witness statement of Martin Bridger of Luke & Bridger Law, his solicitors, dated 18 December 2024, whether the Claimant should be permitted to advance what were called the “new arguments”, and whether the Defendant should be permitted to rely upon the second witness statement of Christine Ferguson dated 2 March 2025.[6]At the commencement of the hearing, the parties agreed that I should allow the Claimant to rely on the second witness statement of Mr Bridger and the Second Defendant to rely upon the second witness statement of Ms Ferguson and I did so. I have considered both those statements and the attachments referred to.[7]The remaining issue arose because at a hearing on the 4th December 2024 Linden J made the following order. … “4. By 4pm on 18 December 2024 the Claimant shall serve an amended statement of facts and grounds which formalises, by way of incorporating, the argument set out in the Claimant’s skeleton argument dated 14th November 2024. 5. Any application by the Claimant for permission to rely upon further evidence and or to further amend their statement of facts or grounds so as to rely upon additional grounds or arguments (ie beyond those set out in the skeleton argument dated 14th November 2024 and covered by the direction made in paragraph 4 above) is made by 4pm on 18th December 2024. …”[8]On 18 December 2024, in purported compliance with that order, the Claimant served an amended statement of facts and grounds. That amended document included some arguments that were articulated in the skeleton argument (and which, accordingly, are addressed below). But, in breach of Linden J’s order, the document also contained arguments or grounds of challenge not set out in the skeleton argument of the 14th November 2024. Accordingly, he had no permission to advance those arguments. Furthermore, no application has been made since for permission to advance those arguments.[9]On a number of occasions during the hearing before me, I invited submission from Mr Ramby De Mello, counsel for the Claimants, as to the basis upon which he could be permitted to advance these new arguments. He did not accept that invitation and no such submissions were advanced.[10]As is well established, a degree of procedural rigor is necessary in public law proceedings. In R (Talpada) v SSHD [2018] EWCA Civ 841, Singh LJ said at paragraphs 67 – 69:67. I turn finally to the question of procedural rigour in public law litigation. In my view, it cannot be emphasised enough that public law litigation must be conducted with an appropriate degree of procedural rigour. I recognise that public law litigation cannot necessarily be regarded in the same way as ordinary civil litigation between private parties. This is because it is not only the private interests of the parties which are involved. There is clearly an important public interest which must not be overlooked or undermined. In particular procedure must not become the master of substance where, for example, an abuse of power needs to be corrected by the court. However, both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation.68. In the context of an appeal such as this it is important that the grounds of appeal should be clearly and succinctly set out. It is also important that only those grounds of appeal for which permission has been granted by this Court are then pursued at an appeal. The Courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of “evolving” during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.69. These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation.[11]I respectfully agree, and in those circumstances, I decline to consider any new arguments that arose since the skeleton argument considered by Linden J.[12]I would add that, in fact, it does not seem to me that those new arguments or grounds of challenge advanced by the Claimant in the amended statement of facts and grounds take the matter any further forward. The heart of this case lies in the analysis of the FCDO decision maker on 12 December 2023 which was confirmed by Ms Ferguson on the 18th December 2023, adopted by the Second Defendant and which led to the decision letter the following day. That is the focus of this judgment.

THE ARAP SCHEME

[13]ARAP was introduced in the Immigration Rules from 1 April 2021. The material provisions, which cover Category 4 of ARAP, are as follows:
“ARAP 3.6. A person meets the eligibility requirement if conditions 1 and 2 and one or both of conditions 3 and 4 applies: (a) Condition 1 is that at any time on or after 1 October 2001, the person: (i) was directly employed in Afghanistan by a UK Government department; or (ii) provided goods or services in Afghanistan under contract to a UK Government department (whether as, or on behalf of, a party to the contract); or (iii)worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department. (b) Condition 2 is that the person, in the course of the employment or work or the provision of those services under Condition 1, made a substantive and positive contribution towards the achievement of one or more of the following: (i) the UK Government’s military objectives with respect to Afghanistan; or (ii) the UK Government’s national security objectives with respect to Afghanistan (and for these purposes, the UK Government’s national security objectives include counter-terrorism, counter-narcotics and anti-corruption objectives). (c) Condition 3 is that because of the person’s employment or work or those services under Condition 1, the person: (i) is or was at an elevated risk of targeted attacks; and (ii) is or was at high risk of death or serious injury. (d) Condition 4 is that the person holds information, the disclosure of which would give rise to or aggravate a specific threat to a UK Government department or its interests.” (a) Condition 1 is that at any time on or after 1 October 2001, the person: (i) was directly employed in Afghanistan by a UK Government department; or (ii) provided goods or services in Afghanistan under contract to a UK Government department (whether as, or on behalf of, a party to the contract); or (iii)worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department. (b) Condition 2 is that the person, in the course of the employment or work or the provision of those services under Condition 1, made a substantive and positive contribution towards the achievement of one or more of the following: (i) the UK Government’s military objectives with respect to Afghanistan; or (ii) the UK Government’s national security objectives with respect to Afghanistan (and for these purposes, the UK Government’s national security objectives include counter-terrorism, counter-narcotics and anti-corruption objectives). (c) Condition 3 is that because of the person’s employment or work or those services under Condition 1, the person: (i) is or was at an elevated risk of targeted attacks; and (ii) is or was at high risk of death or serious injury. (d) Condition 4 is that the person holds information, the disclosure of which would give rise to or aggravate a specific threat to a UK Government department or its interests.”
[14]The Defendants have published “Operational Guidance” for decision makers making decisions about ARAP. That includes the following guidance about condition 2: Condition 2 - The applicant must have 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”. - Where there is evidence of work for, with or alongside FCDO (or former FCO/DFID) that meets Condition 1 but the applicant’s role did not have a clear and specific national security objective (which includes counter-terrorism, counter narcotics or anti-corruption) with respect to Afghanistan, and/or that role was not directly linked to their relationship with the FCDO under Condition 1, then that role is unlikely to give rise to eligibility… Where there is evidence of work for an FCDO (or former FCO/DFID) funded programme that meets the criteria of Condition 1 (b), but, for example, HMG programme/project documentation (such as business case or tender documents) does not identify one or more of the UK’s national security objectives (which includes counter-terrorism, counter narcotics or anti-corruption), with respect to Afghanistan, as a strategic reason for developing the programme, and does not explicitly name and include those objectives in programme objectives and outputs, then work for that programme/project is unlikely to meet the definition of having made a substantive and positive contribution to those objectives….[15]The leading authority on the operation of the ARAP is the decision of the Court of Appeal in R (LND1) v Secretary of State for the Home Department [2024] 1 WLR 4433. There, Lewis LJ explained at paragraph 10 that; The present requirements governing Afghan citizens seeking to relocate to the United Kingdom were made by changes to the Immigration Rules which now include the relevant provisions in the Appendix. The heading to the Appendix confirms that applications under this route are to enable Afghan citizens and their dependent family members to relocate to the United Kingdom (or to settle in the United Kingdom if they are already here) in circumstances where the MoD has decided that they meet the requirements for relocation as an “eligible Afghan citizen”. The heading also explains that here is a two-stage application process. An application must first be made, by the applicant, to the MoD, which will decide if the applicant is an eligible Afghan citizen. If the person is eligible for relocation to the UK, the second stage is that the MoD will make an application for entry clearance (if they are outside the UK) or settlement (if they are in the UK) on behalf of the applicant.[16]At paragraph 14 Lewis LJ held that the structure and language of ARAP 3.6, read in the context of the Appendix as a whole, indicates that there are certain conditions that an individual seeking to relocate to the United Kingdom must satisfy. Condition 1 concerns the relationship, or proximity, between the work of the individual Afghan national concerned and a United Kingdom government department. Condition 2 is concerned with the contribution that that work makes to the United Kingdom’s military or national security objectives.[17]He held at paragraph 42 that it would be wrong to elide the separate requirements of condition 1 and condition 2. He said that the judge below was wrong to approach the application of condition 1(iii) as part of a single exercise considering condition 2 and the nature and extent of the contribution made by the individual to the United Kingdom’s military and national security objectives, and to treat the latter as the more important. Rather, the requirement in condition 1(iii) that the individual worked alongside, in partnership with or closely supporting and assisting, a United Kingdom government department is a separate requirement from condition 2.[18]In the present case, the Second Defendant accepts that the Claimant is an Afghan citizen, aged over 18, who has applied to the MoD under ARAP. It is accepted that condition 1 was met in that after 1 October 2001 the Claimant provided goods or services in Afghanistan under contract to HMG. But the Defendant rejected the suggestion that condition 2 was met. That being so, the SSD did not go on (and says he did not need to go on) to consider if conditions 3 or 4 were met.[19]It follows that the central issue in the present case concerns the SSD’s decision that the Claimant did not meet condition 2. In essence the Claimant contends that the Defendant ought to have concluded that in the course of his work “he made a substantive and positive contribution towards the achievement of the UK’s national security objectives with respect to Afghanistan.”

THE FACTUAL BACKGROUND

[20]The First Claimant is an Afghan national born on 26 September 1973. Prior to the Taliban’s reoccupation of Afghanistan, he worked as a driver for a number of companies who provided security and risk management services in Afghanistan, namely Pax Mondial, LPD Afghanistan, GardaWorld and Coffey International Ltd. His work involved driving armoured and other vehicles at the direction of his employers. In particular, his work with GardaWorld included “driving foreign consultants from allied countries to specific locations”. His employers worked on two projects funded by the UK Government, “Strategic Support to the (Afghan) Ministry of Interior” (“SSMI”) and “Strategic Support for Countering Violent Extremism” (“SSCVE”). His role is further described in the exhibits to Mr Bridger’s statements.[21]Following the return of the Taliban to power in Afghanistan in August 2021, the Claimant made the first of five applications seeking relocation to the UK under ARAP. The basis of those applications was that, as he put it in his witness statement, “the work I previously conducted, offering support and assistance to allied forces and countries has put me in imminent and continued risk along with my family at the hands of the Taliban.”[22]On the 8 March 2023 the SSD referred the Claimant’s ARAP application to the Foreign, Commonwealth and Development Office (the “FCDO”) for consideration under category 4 of ARAP.[23]On 16 July 2023 Ms Sue Bennett of the FCDO completed a form entitled “FCDO Decision Makers Assessment ARAP Category 4 application”. She noted that the Claimant had worked for GardaWorld on a Department for International Development (“DFID”) funded programme in Afghanistan (the SSMI) but concluded that the Claimant did not meet condition 2 of Category 4 of ARAP and “therefore does not qualify for sponsorship by the FCDO”.[24]On 24 September 2023 the FCDO Assessment was communicated to the SSD and on 28 September the SSD served a decision that the Claimant was not eligible under ARAP. The SSD subsequently realised that that decision had erroneously referred to the incorrect criterion as the basis for the refusal and on 6 November 2023 the SSD provided a further decision letter correcting the earlier error. That decision letter stated that the Claimant did not meet the eligibility criteria under Category 4, specifically that he did not meet condition 2 of Category 4.[25]On 12 November 2023 the Claimant submitted a request for a review of the 28 September 2023 ARAP eligibility decision. On the 20th November 2023 he submitted a request for a review of the 6th November decision.[26]On 5 December 2023 the Second Defendant wrote to the Claimant seeking further information as to why he believed he qualified under ARAP and asking him to provide any additional documentary evidence. The Claimant responded on 8 December 2023, providing additional information to the effect that he had also worked on the SSCVE project.[27]On 12 December 2023 the FCDO undertook a review of its earlier assessment. This concluded that “AFA is not eligible for ARAP category 4 as he does not meet condition 2.” That decision was confirmed by Christine Ferguson of the FCDO in the final section of that document: on 18 December 2023 she agreed with the assessment that the Claimant did not meet condition 2 and was therefore not eligible under ARAP.[28]On 19th December 2023 the SSD served a decision to the effect that the Claimant did not meet condition 2 of category 4 and therefore did not meet the eligibility criteria.[29]The Claimant had originally issued a claim for judicial review on 11 May 2023. On 22 December 2023 he applied to vacate the hearing listed in those proceedings and for permission to amend his grounds so as to challenge the SSD’s decisions of 6 November and 19 December 2023. That application was granted by Swift J on 1 May 2024 and it is with that challenge that I am now concerned.

THE DECISION UNDER CHALLENGE

[30]The relevant FCDO decision making process is described in an assessment dated 12 December 2023. That document was compiled by an unnamed officer from the Resettlement Department, to whom I shall refer as “RD”. It concludes with a “sponsorship recommendation” from the head of the resettlement Department, Ms Christine Ferguson, who signed off her recommendation on 18 December 2023. Ms Ferguson has provided two witness statements in support of the Second Defendant’s case.[31]In the body of the Assessment document, RD recorded that, in considering the application against the criteria set out in the ARAP scheme, she had regard to documents from the Claimant’s employers in Afghanistan. She noted that between August 2017 and March 2019 the Claimant worked as an armoured vehicle driver and security officer for a DFID-funded programme known as SSMI, a programme being implemented by Coffey International Ltd.[32]RD noted that because the Claimant was not directly employed by HMG and did not provide linguistic services to UK armed forces in Afghanistan he did not qualify under ARAP categories 1 and 2. She then considered ARAP category 4. She noted that he was not directly employed by HMG so did not meet condition 1(a). However, his role as a GardaWorld contracted armoured driver and security officer did meet condition 1(b) because, in this role, he provided services in Afghanistan under contract to a UK Government department. He did not meet condition 1(c) in category 4, but because she had found he met condition 1(b), she was able to assess him against condition 2.[33]RD noted that the Claimant worked as an employee of Coffey International on the SSMI programme that had launched in 2011. She noted that the material he had supplied supported the conclusion that he was employed as a contracted armoured vehicle driver until 2019. She noted that the SSMI programme aimed to improve the accountability of the Afghan Ministry of Interior and its ability to achieve self-management. Its goals included improving public trust in the Afghan national police, contributing to the UK’s objective of improving security and stability in Afghanistan, providing long term support to the MoI on institutional reform and improving the sustainability of UK investments.[34]She said that the primary objective of the programme was to improve good governance and security in the country so as to support Afghanistan’s own institutional and economic development and the security of its inhabitants. She said “it was not designed to specifically address UK national security objectives. Any benefits to UK as a result of improvements in Afghan internal governance and security would have been secondary or indirect”.

(a) ”

[35]RD said she then went on “to consider the applicant’s role in the programme” and noted that he was “an armoured vehicle driver, transporting Coffey employees working on the SSMI programme.” She concluded that “while he was contracted to work on this programme, the role he carried out was a logistical and support function. He did not himself deliver any programme objectives.”[36]She noted that the Claimant had also worked on the SSCVE project. She said he provided mobility and security services to Afghan and foreign employees on that project. She said that the SSCVE project aimed to support inter-ministerial and key stakeholder coordination in the development of an Afghan government strategy for countering violent extremism. She said that the “project outputs were designed to help develop the ONSC’s knowledge in crucial areas required for development of a CVE strategy and policies that would have a measurable impact on the ground in Afghanistan”. She concluded that the primary objective of the programme was to tackle Afghanistan’s own security concerns and capacity to act against violent extremism. She said that the benefits to the UK national security objectives with respect to Afghanistan “would have been indirect and secondary”.[37]In considering the applicant’s role in these programmes, RD said that while the Claimant was contracted to work on this programme, the role he carried out was a logistical and support function. He did not himself deliver any programme objectives. She concluded, in respect of his work on both programmes, that the Claimant “did not make a substantive and positive contribution to the UK Government’s national security objectives with respect to Afghanistan”.[38]RD concluded that the Claimant “is not eligible for ARAP category 4 as his application does not meet condition 2”. In the decision under challenge, Ms Ferguson agreed.

DISCUSSION

[39]It follows from the analysis set out in the FCDO decision maker’s assessment, which was adopted by the Second Defendant in the decision letter of 19 December, that the decision under challenge can properly be broken down into two inter-related elements. First, it was decided that the programmes for which the Claimant worked did not contribute to the UK’s “national security objectives”. Second, it was decided that even if it did, the Claimant’s role in that programme was not such as would enable the SSD to conclude that he made a substantive and positive contribution to achieving that objective.[40]The parties’ competing cases were set out in their respective skeleton arguments. In his oral submissions on behalf of the Claimant, Mr de Mello argued that the SSD was wrong to conclude that the two programmes, SSMI and SSCVE, had no bearing on the UK’s national security objectives; wrong to conclude that the Claimant did not make a significant contribution to those objectives; and accordingly misapplied the ARAP.[41]For the Defendants, Mr Alan Payne KC argued that SSMI and SSCVE were designed to improve internal stability and security and advance good governance within Afghanistan but those were not amongst the UK Government’s national security objectives as expressed in ARAP. He says that, in any event, the Claimant’s contribution to advancing those objectives was not substantive, in that they were not significant, direct or positive.[42]The primary assessor and decision-maker under ARAP in this case are the SSFCDA and the SSD. The Court’s function is supervisory. Accordingly, it is necessary to consider whether each of the relevant conclusions was properly open to the Second Defendant as it applied the ARAP appendix to the facts of the Claimant’s case.[43]As Lewis LJ said in LND1, the principles governing the interpretation of provisions of the Immigration Rules, such as the Appendix, are well-established. “The interpretation of the relevant provisions depends upon the language of the relevant rule, read in context, and having regard to the purpose underlying the rules.” Lewiss LJ referred to the judgment of Lord Brown in Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 38 at paragraph 10:
“Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy.”
[44]It is useful at this point to recall the wording of category 4 condition 2. The condition is that the person concerned, “in the course of the employment or work or the provision of those services under Condition 1, made a substantive and positive contribution towards the achievement of one or more of the following:(i) the UK Government’s military objectives with respect to Afghanistan; or(ii) the UK Government’s national security objectives with respect to Afghanistan (and for these purposes, the UK Government’s national security objectives include counter-terrorism, counter-narcotics and anti-corruption objectives).”[45]There is no definition, in the Rules, in the ARAP policy itself, in the Operational Guidance or in any other guidance to which I was referred, of what is meant by “the UK Government’snational security objectives”. Those objectives are not identified beyond the wording of the condition. The court’s task is to give those words their natural and ordinary meaning.[46]The Defendants evidence does not greatly assist. The witness statement of Nicolas Gurr of the Ministry of Defence deals with military objectives in Afghanistan. There is no serious suggestion on behalf of the Claimant that he was contributing towards those objectives. Ms Ferguson addresses the UK’s security concerns. She says (at paragraphs 10-11 of her first witness statement dated 3 December 2024)10. The FCDO’s UK National security objectives with respect to Afghanistan focused on addressing risks to the security of the UK, predominantly countering terrorism. For the purposes of FCDO ARAP assessments, UK national security objectives plainly relate to individuals who supported counterterrorism, counter narcotics (before 2011…) and anti-corruption work in Afghanistan. An example of individuals whose actions have been considered to have contributed to the UK national security objectives for the purposes of category 4 includes some of the judges who worked in the counter terrorism courts...11. Many of the applicants who are found to meet condition 1 for FCDO will have been supporting the broader UK mission in Afghanistan .. such as promoting rights of women and girls, rule of law, good governance or media freedom close brackets, and their work may well have contributed to promoting internal security and stability in the country. But they will not have been making, in the course of their work, a substantive contribution to UK national security objectives. They will, therefore, not meet condition 2b for the FCDO and so will ultimately not be sponsored by the FCDO for eligibility under category 4”[47]This evidence confirms that counter-terrorism, counter-narcotics and anti-corruption were the primary national security concern of the UK Government in Afghanistan. But Ms Ferguson does not suggest that the Government’s “national security objectives” were limited to those three issues and it would be surprising if she did. The policy itself refers to “the UKs national security objectives (which include counter terrorism, counter narcotics or anti-corruption) with respect to Afghanistan”. The fact that national security objectives include those three particular matters plainly implies that there are other matters which fall within the expression “national security objectives”.[48]Later in her witness statement, Ms Ferguson considers the purposes of the projects on which the Claimant worked, namely the SSMI and the SSCVE programmes. She says that those who worked on those projects may have contributed to “to promoting internal security and stability” in Afghanistan, but they will not have been making a substantive contribution to the UK’s national security objectives. However, other than her assertions, there is no evidence that the objectives of those programmes fall outside the Government’s national security objectives.[49]This lack of clear definition has been the subject of comment by the courts in other ARAP cases. In paragraph 83 of his judgment in the Divisional Court case of R v CX1and othersv the Secretary of State for Defence and the Secretary of State for FCDA [2024] EWHC 94 (Admin), Dingemans LJ said that the court had been told that “[t]here was no express guidance for the caseworkers on the meaning of the UK's military and national security objectives with respect to Afghanistan.” In paragraph 86 he suggested that “clear objectives might also assist caseworkers to determine fairly the relevant applications”.[50]The evidence on this important issue remains opaque. Certainly it can be said, as Mr De Mello submitted, that in other contexts, the expression “national security”, including national security objectives, has been given a meaning by both the Government and the courts much wider than counter-terrorism, counter-narcotics and anti-corruption.[51]What is probably the leading textbook on national security law “National Security, Intelligence and the Law” edited by Ward and Blundell (2nd ed) discusses the meaning of national security at some length in chapter 1. It notes Governmental publications including “Integrated Review” in 2021 and “Integrated Review Refreshed” in 2023 which provide wide definitions of national security. The latter, for example, notes that UK interests require an open and stable international order.[52]Mr de Mello drew my attention to a number of other Governmental publications. He pointed out that, in the 2010 Strategic Defence and Security Review, it was noted that that review was “the first time that a UK government has taken decision on its defence, security, intelligence, resilience, development and foreign affairs capabilities in the round”. On page 11, national security tasks and planning guidelines were said to include the need to “tackle and root out the causes of instability. To deliver this we require… civilian and military stabilisation capabilities that can be deployed early to help countries avoid crisis to deal with conflict” and “targeted programmes in the UK, and in the countries posing the greatest threat to the UK, to stop people becoming terrorists”. In the chapter dealing with defence it was said that UK armed forces were “helping to deliver a stable Afghanistan able to maintain its own security and to prevent Afghan territory again being used by Al Qaeda or other terrorists as a base from which to plot and launch attacks on the UK and our allies”.[53]In the chapter on “wider security” at page 44 it was said that “recent experience has shown that instability and conflict overseas can pose risks to the UK including by creating environments in which terrorist or organised crime groups can recruit for, plan or direct their global operations… a key principle of our adaptable approach is to tackle threats at source”.[54]It was said that the Government “learned important lessons about what works best in these environments: we must address the root causes of conflict and fragility; support an inclusive system which builds … society and strengthen the government’s ability to deliver security, justice and economic opportunity… we are putting this into practice in Afghanistan”.[55]Mr de Mello also referred to the Government’s Counter Extremism Strategy published in October 2015 which talks in Chapter 2 (at page17) about the need to counter extremist ideology to build a partnership with all those opposed to extremism and says that the Government will “develop a clear plan of international work to reinforce our efforts to defeat extremism at home.”[56]In the Building Stability Overseas Strategy published by DFID, the FCDO and the Ministry of Defence, it was said, at paragraph 4.5, that “from Sierra Leone to Iraq and Afghanistan we are learning that we cannot build stable states without functioning security and justice systems. Effective and accountable security and better access to justice that is seen to be effective make people feel safe in their daily lives…”[57]It seems to me difficult in the face of those high level ambitions to argue that supporting the rule of law or good governance or promoting internal security and stability in Afghanistan were not UK national security objectives.[58]The case law also supports a wider interpretation of national security, a wider definition which is often advocated, in different contexts, by Government. For example, in SSHD v Rehman [2001] UKHL 47, Lord Slynn said: 16. It seems to me that, in contemporary world conditions, action against a foreign state may be capable indirectly of affecting the security of the United Kingdom. The means open to terrorists both in attacking another state and attacking international or global activity by the community of nations, whatever the objectives of the terrorist, may well be capable of reflecting on the safety and well-being of the United Kingdom or its citizens. The sophistication of means available, the speed of movement of persons and goods, the speed of modern communication, are all factors which may have to be taken into account in deciding whether there is a real possibility that the national security of the United Kingdom may immediately or subsequently be put at risk by the actions of others. To require the matters in question to be capable of resulting "directly" in a threat to national security limits too tightly the discretion of the executive in deciding how the interests of the state, including not merely military defence but democracy, the legal and constitutional systems of the state need to be protected. I accept that there must be a real possibility of an adverse affect on the United Kingdom for what is done by the individual under inquiry but I do not accept that it has to be direct or immediate. Whether there is such a real possibility is a matter which has to be weighed up by the Secretary of State and balanced against the possible injustice to that individual if a deportation order is made. 17…I would accept the Secretary of State’s submission that the reciprocal cooperation between the United Kingdom and other states in combatting international terrorism is capable of promoting the UK’s national security…”(emphasis added.)[59]When the expression “national security” is used in statute or in the Immigration Rules, its meaning is a matter of construction and therefore an issue for the court. However, the task of identifying what amounts to “a threat” to national security or what is in “the interests” of national security is an evaluative exercise and as such is, in the first place, a matter for the executive, rather than the courts. Lord Hoffmann said at [50] in Rehman What is meant by "national security" is a question of construction and therefore a question of law within the jurisdiction of the Commission (SIAC), subject to appeal. But there is no difficulty about what "national security" means. It is the security of the United Kingdom and its people. On the other hand, the question of whether something is "in the interests" of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.[60]In my judgment, identifying the UK Government’s national security “objectives” in a particular context or particular country is also an evaluative question for the executive, subject only to challenge on Wednesbury principles(see also in this context [110] in R (Begum) v SIAC [2021] UKSC 918).[61]It was accepted by Mr De Mello that what is or is not a national security objective is primarily a matter for the Government, so the court is exercising only a public law jurisdiction in reviewing a decision as to whether an activity furthers such an objective. But in my judgment, Mr de Mello is entitled to observe that in other contexts, when it suits their argument, the Government has adopted a far wider definition as to what is and is not national security than that now advanced by the SSD.[62]Furthermore, there is an argument of some force that “national security objectives” cannot rationally be said to be limited to counter-terrorism, counter-narcotics and anti-corruption. In fact, as noted above, the criterion under the scheme describes these as objectives “included” within the class of national security objectives, the clear inference being that there are others. There is in my judgment a powerful case that to “…deliver a stable Afghanistan able to maintain its own security” and “supporting an inclusive political system which builds a closer society” and “strengthening the Government’s ability to deliver security justice and economic opportunity”, all steps which the Government said in the SDSR it was putting into practice in Afghanistan, were national security objectives, at least in the absence of a definition in the policy to exclude such matters, or evidence that such matters are not so included. And it can certainly be argued that these were the sort of objectives in view for both the SSMI and the SSCVE programmes on which the Claimant’s employers were engaged.[63]However, even if it could be said that the FCDO’s approach to what falls within “national security objectives” was wrong in law that only gets the Claimant part way home. To overturn the decision under challenge, he must also establish that the Defendant erred in deciding that the Claimant did not make a substantive and positive contribution towards the achievement of the objectives which he says met the national security criteria in condition 2.[64]Mr De Mello was right to warn against lazy assumptions that the contribution of a support worker, such as a driver, cannot constitute a substantive and positive contribution to a national security objective. I agree that it is not the person’s status or job title which is decisive. But, in my judgment, given the wording of the policy, it is not the programme by which an applicant is employed that has to be shown to have made a substantive and positive contribution; it is the work of the individual applicant. It has to be shown that in the course of relevant employment, “the person”, the individual applicant, made a substantive and positive contribution to the UK Government’s national security objectives.[65]In my judgment, the Second Defendant was right to conclude that there was no such evidence. There was nothing to suggest that the Claimant personally had made any significant contribution to national security. His role, admittedly conducted under dangerous conditions, was routine and mundane. It was work that could have been carried out by anyone able to drive the relevant types of vehicle. More importantly, taken alone, it cannot be said to have had any significant effect, or any direct effect, or any positive effect on the UK’s national security. In fact, no evidence was adduced by the Claimant, or considered by the Defendant, that suggested that the work carried out by this particular applicant made any material contribution to the achievement of any identifiable national security objective.[66]Even taking the expression to include the type of objectives being pursued by the SSMI and the SSCVE programmes, I see no basis on which it can be said that the SSD’s conclusion that the Claimant’s work made no substantive and positive contribution to the UK national security objectives was irrational or unreasonable. On the contrary, in my judgment, it was inevitable.[67]That leaves one of the questions set out at paragraph 4 above unaddressed, namely the Tameside argument.[68]Mr de Mello advanced no substantive argument orally in support of the suggestion that the Defendants were in breach of the Tameside duty of inquiry. In my judgment, there was no basis on which he could have done so. The burden to adduce evidence in support of the application to the Second Defendants lies on the applicant. He put forward the evidence he wished to rely on. The SSD followed up that application and invited the submission of further material. The decision maker then took everything provided into account.[69]Applying Tameside, it is not for the court to decide what is a reasonable line of inquiry; instead the court reviews, on Wednesbury grounds, the Secretary of State’s decision as to the inquiries he should make. There is no proper ground of challenge on that basis on the present facts.

Conclusion

[70]In those circumstances, the grounds of challenge are dismissed. In consequence, issue 2, the question of relief, does not arise.

Cited in 4 later judgments