CHD No.2, R (on the application of) v Secretary of State for Defence [2026] EWHC 1744 (Admin)
[2026] EWHC 1744 (Admin)Case No AC-2025-LON-002920
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice Strand London WC2A 2LL
Handed down in OPEN on 10 July 2026
Before
THE HONOURABLE MR JUSTICE SAINI
Between
THE KING (on the application of CHD No.2 )ClaimantDefendantSECRETARY OF STATE FOR DEFENCETim Buley KC and Jesse Nicholls (instructed by the Special Advocates Support Office)Alan Payne KC and Richard Evans (instructed by the Government Legal Department) for DefendantHearing Hearing date: 17 April 2026This is an OPEN version of a Judgment originally handed down in CLOSED. Some parts of the original have been redacted (removed completely) for national security purposes and some parts have been reworded as gists in order to protect the identity of the Claimant. These redactions and gists are marked throughout with square brackets.Mr Justice Saini:Date 2026-07-10
[1]The relevant facts and background are set out in my OPEN judgment of 12 March 2026 concerned with the Claimant's challenge to the refusal of his relocation application under the ARAP Scheme: see [2026] EWHC 566 (Admin) at [22]-[36]. I will accordingly not repeat the basic facts and also adopt the definitions in my OPEN judgment, no other factual matters as to the Claimant's role in [the Employer], and events concerning him in Afghanistan, were raised at the CLOSED hearing.[2]In terms of case law, in CLOSED submissions, Leading Counsel each referred to a single case: CXI and others v Secretary of State for Defence [2024] EWHC 891 (Admin) ("CXI "), which is the OPEN version of an earlier CLOSED judgment relating to the (now well-known) data leak.[3]As I recorded at [8] of my OPEN judgment the Claimant's data was lost in that leak. This CLOSED judgment is concerned with the Special Advocates' challenge to the Defendant's decision of 5 June 2025 ("the Decision") refusing the Claimant relocation under the Afghanistan Response Route (Internal policy statement), Version 3.0 of 22 January 2025 ("the ARR Policy"). The ARR Policy which was implemented as a prerogative decision in response to the data leak: see CXI at [49] as to the relevant legal basis for such a policy.[4]In outline, the ARR Policy is intended to provide a relocation route for those ". . . who are at highest risk... " due to the data leak (see page 5 of the ARR Policy). It operates by identifying those at risk by asking whether they had "high-profile roles" in Afghanistan by reference to criteria set out in two Addenda. Addendum A to the ARR Policy sets out particular roles such as for example senior GIRoA personnel, [. . .]. Addendum B covers high profile [.] . This case is concerned with an additional category of potential candidates who had "a different high-profile role not listed in Addendum A or Addendum B but where it has been determined... that they held a role which puts them at equivalent risk to those in the identified roles" (ARR Policy, page 12).[5]As a matter of common ground, the Claimant did not fall within either Addendum A or B, and he fell to be considered as a candidate for relocation under this third category of persons at "equivalent risk." The Defendant decided he did not qualify as such a person, taking into account his role at [the Employer] and actions towards him since the Taliban takeover in 2021.[6]In short, the core reasoning of the Defendant (see page 8 of the Decision) in refusing relocation under this equivalent risk route was that the Claimant did not meet the threshold under the ARR Policy because neither the Claimant (nor [the Employer]) were directly involved in action to "prevent Taliban activity". The Special Advocates, Mr Buley KC and Mr Nicholls forcefully challenge this conclusion on a number of legal bases, as I summarise below.[7]In approaching the Decision and in particular the Defendant's reasons, it was not in dispute that the context before me is one where the court must closely analyse the reasons to determine whether they provide cogent justification for the action. Essentially, this is a situation where "anxious scrutiny" is required by the court given the interests at stake. See also in this regard, CXI at [53].[8]Mr Payne KC stressed however certain additional contextual matters which he argued should affect any public law scrutiny of the Decision. This included the fact that the Decision was "internally" made in some haste and in circumstances of secrecy (with reasons not for communication to the Claimant), and that it was necessarily brief and should be taken to have been informed by the factual material. Mr Payne KC also underlined that I should take into account that the Decision was not made by lawyers and should not be subject to detailed forensic analysis. He emphasised that the ARR Policy is intended to be strictly applied as matter of prerogative powers to a carefully targeted group of high profile individuals, even though those subject of the data leak went into many hundreds of thousands of persons including dependents. The ARR Policy states in terms at [2] that it is to apply to the "highest risk cohort".[9]I accept each of these general points made by Mr Payne KC. Mr Buley KC did not take issue with them but he rightly emphasised that the Defendant was nevertheless obliged to act lawfully in accordance with the policy he himself had promulgated. II. The Decision[10]By the Decision, the Defendant accepted that the Claimant met three of the four conditions under the ARR Policy (see pages 12-14 of that document). So, in summary, it was accepted by the Defendant that the Claimant satisfied Condition A (he was affected by the data leak), Condition C (that he was present in a high-risk country) and D (that he was not eligible under ARAP, or another scheme). The Defendant decided however that he did not meet Condition B(iii). Condition B(iii) requires the individual to have been found to have held a role which puts them at "equivalent risk" to the roles identified in Addendum A or Addendum B.[11]The Guidance to the ARR Policy, at paras 8-12, explains how the "high profile equivalent risk" policy is to be applied, Para 12 of the Guidance is particularly relevant and includes the following: "For any individual being considered under the high-profile equivalent highest risk policy caseworkers should consider the following:a. Within the role(s), has the individual have [SIC] taken action to prevent Taliban activity. This could include but is not limited to roles relating to: a. Counter-terrorismb. Counter-narcoticsc. Anti-corruptiond. Activities to prevent organised crime ... .[12]It is not suggested by the Special Advocates that the ARR Policy or the Guidance are themselves unlawful in any respect. III. The grounds and competing submissions[13]There were four well-focussed and concise grounds of challenge advanced by the Special Advocates.[14]The first complaint was that there was a misdirection because the ARR Policy at Condition B(iii) requires an applicant to be at "equivalent risk" to an Addendum A person and not, as specified in the Guidance, whether the person was "directly involved in 'action to prevent Taliban activity'". Mr Buley KC accepted this is a relevant factor but he said it was not determinative. He persuasively argued that the Defendant used the factor (was there action to prevent Taliban activity?) as in effect a determinative negative factor. He said it was wrongly used to replace the actual test in the ARR Policy which is simply consideration of whether the individual is at "equivalent highest risk".[15]The second complaint was that where the Defendant had found established a case of prima facie risk because the Defendant accepted the Claimant worked for an organisation which was a "direct enemy of the Taliban" and was himself "the subject of adverse activity at the hands of the Taliban", some countervailing factor was required to defeat the entitlement to relocation under the ARR Policy. Mr Buley KC argued that the fact (not accepted) that the Claimant was not "directly involved in 'action to prevent Taliban activity"' was incapable of being a countervailing factor (he submitted that it was just an absent additional positive factor).[16]The third complaint was that the Defendant failed to recognise the evidence (which had been accepted by him) that the Claimant had performed a role [.. .]. This was submitted to also be a material misdirection given bullet 2 of Addendum A which asks whether an applicant's role is one [. . .[17]The fourth and final complaint was that it was irrational to conclude that the Claimant and [the Employer] were not involved in action to prevent Taliban activity. Mr Buley KC argued that even applying what he submitted was an incorrect legal test (see his first ground of complaint), this conclusion was based on a misunderstanding of the accepted evidence.[18]In response, to the four grounds of complaint Mr Payne KC and Mr Evans persuasively submitted that the Defendant took into account all relevant factors, applied the correct legal test and came to an ultimate conclusion on "equivalent risk" which was rational. Mr Payne KC in his oral submissions underlined the fact that the ARR Policy was intended to be strictly applied to a limited cohort of people based on risk arising from the data leak, as opposed to creating a wide route of entry. IV. Analysis and conclusions[19]On the first ground, I do not consider there was any misdirection in law. The ARR Policy requires that in the determination of whether the Conditions (i)-(iii) are satisfied, the decision-maker shall apply the Guidance (it uses the language in accordance with the Guidance). So, the ARR Policy sends the decision-maker to the Guidance in deciding the equivalent risk question. The Guidance requires (amongst other matters) consideration of whether in their role the relevant individual took action to "prevent Taliban activity". It was open to the Defendant to adopt that as a basis for identifying, or defining, roles considered to be high profile roles at equivalent risk. So, it is not a misdirection to ask that question as a determinant. To do this is to simply apply the Defendants own lawfully adopted Guidance. There was no legal obligation to go back to the Policy itself and separately ask the question again as to whether the Claimant was at equivalent high risk, when the Claimant did not meet the lawful test under the Guidance. That approach would render the Guidance meaningless.[20]I also reject the second complaint. The fact that [the Employer] was regarded as a direct enemy of the Taliban and that the Claimant had been the subject of adverse activity at the hands of the Taliban is not the same as the Claimant having himself undertaken positive action to prevent Taliban activity. There is no flaw of logic or irrationality in that conclusion.[21]The third complaint is also not accepted. Equivalent risk requires an assessment of whether the threat to a person as a result of his role is similar to a person who held an Addendum A or B role. Mr Payne KC was right to submit it does not require an assessment of whether the roles are equivalent. He was also right to point out that the role in Addendum A requires substantially more than [. . . ]. There was therefore no requirement to recognise that the Claimant had performed a role [[22]I also reject the fourth ground of complaint, irrationality. I summarised the nature of the Claimant's role in my OPEN judgment as well as the relevance of the rule of law to the national security objective of the UK in Afghanistan: see my OPEN judgment at [26]-[33] as to the evidence of the Claimant's role at [the Employer], and [34]-[37] in relation to [the Employer] 's function and activities.[23]In my judgment, the Defendant was rationally entitled to conclude that the Claimant's work as a Logistics Manager (as supplemented by the more extensive and important public facing tasks which he undertook) in a training and professional organisation promoting the rule of law, were not sufficient.[24][The Employer's] role was general promotion of the rule of law, and the Claimant performed an important non-legal delivery role in supporting that organisation. However, it was rational for the Defendant to decide on the evidence that the Claimant did not himself take action to prevent Taliban activity. I accept that the Taliban was opposed to the promotion of the rule of law, equality and democratic processes, but the Defendant decided to implement a policy of wider protection only to those who were involved in direct action to prevent Taliban activity (and thereby were high profile equivalent risk actors), as opposed to those who promoted general civil society objectives.[25]The CLOSED grounds are for these reasons dismissed.