“ARAP 3.6 A person meets the eligibility requirements if condition 1 and 2 and one or both of conditions 3 and 4 applies: (a) Condition 1 is that at any time on or after1 October 2001 , the person: ... (iii) worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department.”
“20. ... the ratio of the High Court’s decision is a given, an axiom, for the purpose of the lower body’s reconsideration. If it were not so the efficacy of the judicial review jurisdiction would be undermined and so therefore would the rule of law.”
“55…rationality is the standard by which the common law measures the conduct of a public decision-maker where there has been no infringement of a legal right, no misdirection of law and no procedural unfairness. It encompasses both the process of reasoning by which a decision is reached (sometimes referred to as “process rationality”) and the outcome (“outcome rationality”) ...”
“83. Where there are divergent decisions in materially the same situations, the Court is required to ‘consider with the greatest care how such a result can be justified as a matter of law’: R v Department of Health, ex p Misra[1996] 1 FLR 128 at 133 ...”
“108. In the case of Judge W, and his fellow judges at the Anti-Terrorism Court in Kabul, the Defendants appear to have been satisfied that they met the criteria in Category 4 in the ARAP policy because of their role in presiding over the Anti-Terrorism Court, which benefited the UK Government. The judges had a working relationship with UK officials in Kabul, in particular, the Counter-Terrorism Unit which arranged for their sponsorship under ARAP. The UK Government provided the Anti-Terrorism Court with logistical and operational support, and organised training and meetings for the judges. Their roles were public and high profile and they were at risk from the Taliban.”
“101. ... Like all judges in Afghanistan, he was employed by the Supreme Court. He did not work directly or indirectly for the UK Government or military. He and his fellow judges were invited to the British Embassy and elsewhere to attend events and training seminars, and they met British officials on those occasions. The UK Government also provided logistical and operational support for the Anti-terrorism Court in Kabul. 102. When the Taliban came to power, Judge W felt very vulnerable and feared for his life. He and his fellow judges in the Anti-Terrorism Court telephoned the Counter-Terrorism team at the British Embassy, who they knew, and asked them for help. They were invited to complete the ARAP application form, and all of them were called forward for evacuation. They were told by the Counter-Terrorism team at the British Embassy that their work had helped the UK mission in Afghanistan. ...”
“113. ... by the FCDO Head of Counter-Terrorism Afghanistan Task Force which would be the unit responsible for sponsoring Counter-Terrorism judges under Category 4 of ARAP, and so would be able to identify them. AZ had not been involved in cases of special UK interest. AZ had not received training or other support from the UK Government....”
“115. ... There were distinguishing features between AZ and the judges of the Anti-Terrorist Court in Kabul, which explained and justified the decision to grant leave to them under the ARAP policy, but to refuse it to AZ.”
“37. As at4 February 2022 13 members of the Afghan judiciary had been relocated to the UK under ARAP. The lives of all 13 were regarded as being at risk. They were sponsored by either the FCDO or MoD. 38. At least 12 of the 13 worked directly alongside HMG and made a material contribution to the UK’s national security objectives in Afghanistan. 39. 11 of this group had been approved under ARAP in summer 2021, due to their role in the Primary or Appeal level of the Anti-Terrorism Court in Kabul between 2020 and 2021. The UK Government provided logistical and operational support for this court: S and AZ [101]. 40. The Part 18 response indicated that the UK’s support to counter-terrorism courts was limited to Kabul and decisions on eligibility made based on the applicants’ work there, with those courts the UK supported. Their cases had been primarily assessed by FCDO, with input from other HMG units. Further, these judges were considered to have “worked alongside”
“111. ... that evidence of partnership, or perhaps the “worked alongside” criterion more generally, was made out by factors such as (i) the extent to which a judge was publicly known to have co-operated with the UK; (ii) whether the judge had been involved in highly sensitive cases of particular UK interest; (iii) whether HMG representatives had attended their hearings; and (iv) whether they had been involved in colloquia of the sort described at [40] above. These were not discrete requirements, but the sort of factors that enabled the “worked alongside” criterion to be satisfied.”
“116. ... this is perhaps no more than a further aspect of the evaluative exercise of whether the “worked alongside” criterion was satisfied. This does not in itself show that the scheme was operated in an irrational way.”
“27. ... The Judge’s essential point ... was that the UK Government had, from 2015, developed what it regarded as a special relationship with a group of judges at the Kabul Anti-Terrorism Court, which it reasonably regarded as “working alongside” them within the meaning of category 4 of ARAP.”
“62. ... need to address first whether there are any institutional links between the FCDO and the committee or committees relating to reform of the penal law and the anti-narcotics law of which LND says he was a member. Essentially, the MoD will be considering if there is evidence of any institutional link, or structural support, between the FCDO and the committees concerned and, in particular whether any FCDO officials were involved in the work of that committee or committees. That will be part of the process of considering whether or not LND worked alongside in partnership with or closely supporting and assisting the work of the FCDO. Secondly, it will need to consider if there were any institutional links between the British military and the court for internal and external security in Kabul between 2008 and 2012 as part of the process of considering whether or not LND worked alongside in partnership with or closely supporting and assisting the work of the British armed forces or the MoD during that period.”
“72. ...I turn to his role between 2008 and 2012 at the Kabul court for internal and external security. For myself, I would accept the MoD’s position that the fact (if established) that it provided some UK funding for the court would not in itself be enough ..., and that some more specific relationship between him and the UK government would be required (such as was apparently later developed with a particular group of judges as noted by Hill J in R (JZ) ...); and I am not satisfied that the case of Judge W, referred to in both JZ and the case of S ..., suggests to the contrary. I am, however, narrowly persuaded that the FCDO’s suggestion that the MoD should consider whether LND’s role at the court might have involved him working alongside it, which on the evidence was not pursued, is sufficient evidence that a relevant consideration was not addressed by the decision-taker.”
“60. The court may take into consideration whether a claimant has given sufficient particulars of, and described particular circumstances in which, he or she may be regarded as having “worked alongside” a United Kingdom Government department (R (CX1) v Secretary of State for Defence[2024] EWHC 94 (Admin) DC, para 65, per Dingemans LJ). That has not happened in the present case. ... In the absence of particulars of how the claimant may be said to have worked “alongside” a Government department, the defendant was entitled to treat the claimant as having advanced no more than “mere assertions.”...” ... 62. In my judgment, [the defendant] ... is correct to say that the claimant’s status as a civil judge was not decisive but was one aspect of the review decision overall. It cannot be said that the defendant was unreasonable to consider the nature of the claimant’s work as a judge and the sort of cases with which the claimant was involved. The defendant was entitled to weigh the fact that the claimant was not a criminal judge trying terrorism cases, where Category 4 status may be easier to demonstrate. It cannot be said that the nature of the claimant’s work as a civil judge was an irrelevant consideration. Nothing in the defendant’s approach was flawed.”
“... those who worked in meaningful enabling roles for HMG, in extraordinary and unconventional contexts, and whose responsible HMG unit builds a credible case for consideration under the scheme.”
“During this crisis period the original intention of Category 4 came under considerable pressure and was in some cases stretched ...”
“... officials and Ministers were concerned that ARAP had expanded, during the emergency, well beyond its original intention and beyond the capacity of the UK to resettle. Government departments, therefore, worked together to bring ARAP back in line with its original, narrow intention, albeit still allowing access to a small group of Afghans who had not been direct HMG employees.”
“... to ensure ARAP eligibility is clearly defined and balance the obligation to those who worked for us/with us indirectly with commitments made by Ministers, the wider pressure from the public, and the limits on support and accommodation.”
“The cohort eligible for assistance on a case-by-case basis are those who: • on or after1 October 2001 were directly employed in Afghanistan by an HMG department; provided goods or services in Afghanistan under contract to an HMG department; or worked in Afghanistan alongside an HMG department, in partnership with or closely supporting that department; and • in the course of that employment or work or provision of services they contributed 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; ... Checks will be made with the HMG department or unit by whom the applicant was employed, contracted to or worked alongside, in partnership with or closely supported or assisted.”
“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.”
“72.... the emphasis placed by the defendant on what, given the state of the evidence before the court, is an unintelligible concept of partnership judges means that the defendant has erred in his approach to the wording of the policy in ARAP.”
“77. ... strong inference must be that he was acting in that capacity during that time period and ... hearing cases within the court’s jurisdictional remit ... and [more generally] institutionally connected with [the ATC] and, so, with the FCDO’s developing partnership with the ATC.”
“79. ... it was necessary in the present case to consider the nature and extent of links between the ATC and the FCDO (and its predecessors) both before that point (when the claimant received training in 2013 under the apparent auspices of the FCDO’s Rule of Law Officer and no less than two weeks’ training in 2014 from the British Embassy/Adam Smith International; as well as his work trying and sentencing Taliban terrorists); and between 2015 and April 2016, when the claimant left the ATC.” 51. Allowing that: “81. ... the nature of the relationship between an institution in Afghanistan and a department of HMG might be of such a nature as to amount to a partnership and thus be sufficient to show that an individual working for the institution in such a partnership, satisfied the first requirement or “condition” or ARAP Category 4. But the individual would still fail in their application if their own contribution within the institution for which they worked did not make the required substantive and positive contribution.”
“91. It may be that an evidential case can hereafter be made by the defendant that: (a) there was never an institutional relationship between the FCDO and the ATC, of such a kind that a judge of the ATC would thereby be in partnership etc with the FCDO by reason of their work as such a judge; and (b) that the only judges who can objectively be said to have been in partnership were a properly identifiable cohort of “partnership judges.”
“... Cross Government checks have not uncovered any evidence of a working relationship between you and the UK Government. In reaching this conclusion the Decision Maker has considered, among other things, your alleged links with individuals, the institutional links relied on by you, and any training undertaken and alleged payments received. In your response to the Request for Further Information, the Decision Maker notes that you did not claim to have personally worked alongside a UK Government department in any capacity, let alone in partnership with or closely supporting and assisting them. Cross Government checks sought to investigate the individuals named by you in your application and it is confirmed that one individual’s name appeared as a signatory on an HMG issued training certificate but this does not demonstrate your working alongside them. The other individual confirmed to not know or have worked with you, and checks confirmed that they were not employed by the FCDO in a relevant role at the time you worked at the Kabul Anti Terrorism Courts. The Decision Maker is satisfied that any training you received does not constitute working alongside a UK Government department. This includes the training evidenced by the UK Government issued certificates, and your claim of having received security training by British officials, of which no evidence was supplied. The witness statement as provided by your fellow judge supports your claims of working as a judge at the Anti-Terrorism Court (ATC), Kabul. However, the relationships between FCDO officials and the ATC differed significantly pre- and post-2019. Therefore, I am satisfied that the account made by this judge does not evidence a working relationship between you and the UK Government.”
“The requirement is to assess whether the applicant himself (i.e. the “person” referenced in ARAP 3.6) had had the relationship with the FCDO described by this condition. ... for a person to have worked alongside the FCDO, ... it is likely they would have personally worked with FCDO officials and there would have been regular personal contact to establish a working partnership or close support and assistance to the FCDO. Therefore, it would be unlikely for [the condition] ... to be met if only the Afghan institution an applicant worked in had operated alongside the FCDO as an institution, without the applicant also having personally worked alongside the FCDO”
“I have taken account of any institutional relationships between the FCDO and the institutions the applicant worked for or at, and have assessed whether, in the framework of any such relationships, the applicant himself worked in Afghanistan alongside the FCDO ...”
“5. ... HMG began providing assistance to [the ATC] after the introduction of Annex 1 to the Criminal Procedural Code in 2015. HMG developed substantial links with partner judges through the Counter Terrorism Team in particular. It is correct to describe the relevant work of that Court in Kabul, and HMG’s assistance accordingly, as being in relation to counter-terrorism.”
“32. In May 2019, a new CJA started work at [the embassy] and was in post until July 2021. He was a UK barrister and had served as a High Court Judge overseas before being seconded to this role. His remit was to engage with the ATPD and ATC judges to ensure the end-to-end process was compliant with international law. There was no extant relationship with any judges when he arrived in post, and he built one with certain judges over the next two years. 33. The CJA regularly engaged with some judges in the Primary ATC, visiting the Primary Court offices (only very occasionally the Court itself), and the Head of the Appeals Tribunal. At the stipulation of the ATC judges, themselves, to ensure fair trials the CJA did not discuss individual cases. ... The CJA established colloquia with ATC judges to discuss the parameters of justice, the evidential value of different types of evidence, correct processes and principles, hypothetical cases, interpretation of the law and the interface between Sharia and constitutional law. This cohort of judges who worked very closely with the CJA are the “partnership judges”.”
“5. ... in the light of the submissions made by the Claimant and the points raised in the [ACG judgment], it was decided to carry out further investigations, including seeking interviews with individuals who had worked at [the British embassy in Kabul] in periods contemporaneous with the Claimant’s tenure at the ATC. Several of these individuals have now left the FCDO which made access to them more difficult and which is why they were not consulted originally. ... though largely consistent with the original information provided, these new investigations provided more detail on the nature and extent of the relationship between the FCDO and the ATC as well as clarification of specific dates and other details.”
“... to mitigate the direct terrorist threat to the UK and our interests in AFG and ... contribute to a safer and more stable Afghanistan.”
“. The development of an effective and fair end-to-end Afghan process for investigating, detaining and trying suspected terrorists. . Increased professionalization and effectiveness of the National Directorate of Security (NDS). . Improved inter-operability between those involved in the Afghan criminal justice process. . The sustainable transition of our training programmes to an effective and efficient NDS Academy and Anti-Terrorism Prosecution Department (ATPD) Training and Education Department.”
“There remains a direct threat to the UK from Afghanistan and our interests in AFG from terrorism. The enduring aim of the UK effort in Afghanistan is to keep the threat from terrorism at a level which does not require the redeployment of combat troops. A key component in achieving this is supporting the Afghan Government to increase their capability to arrest, detain, investigate and try suspected terrorists. Afghanistan is recognised as a country where there is both a threat to our security, and weakness in the law enforcement, human rights and criminal justice architecture. The more recent US Department of State report on human rights practices in Afghanistan notes that “the law provides for an independent judiciary, but the judiciary continued to be underfunded, understaffed, inadequately trained, ineffective, and subject to threats, bias, political influence, and pervasive corruption” ... CT capacity building efforts have been underway in Afghanistan for several years, with a mature detentions programme in place since 2006, and the JHRP being operational since 2013. The JHRP consists of capacity building and [specific operational practices to ensure human rights compliance] ... Capacity building work will occur mainly with the NDS, the ATPD and Judiciary. By mentoring and building up the capacity of these justice actors, the JHRP seeks to improve the quality of counter-terrorism cases within Afghanistan and encourages each section to act in a way that is compliant with international human rights legislation. ...”
“Activities under this strand are focused solely on training for the prosecutors. There is no activity within the period focused on the judiciary. Nor is there any support to ensure that courts are well managed and any potential HR issues addressed.”
“Met with cadre of judges and heads of court quarterly and six monthly. ASI trained them. We did [not] provide mentoring. Did not have a relationship with any judges outside the top roles in the Supreme Court. Keen to maintain judicial independence. Limited access to courts due to security. FCO officials never went in to collect reports. ASI did attend court to check on prosecution. Interpretation would have been an issue. The CT teams focus at the time was on building bridges between the different Afghan departments dealing with investigation, prosecution and courts. There was no focus on individual judges. Training continued through 2015/16. Significant judges would have attended training in Ankara in 2015. That was the pinnacle of engagement. Not a large number of cases we were interested in ... We would not have contacted individual judges about these cases. ... CPC [Criminal Procedure Code] introduction in Sept 2015 – did not cause greater FCO engagement with courts but did damage relations between NDS and ATPD prosecution depts. .... No step change in terms of relations with court. CJA role up to when it was cut in 2014 was to work with prosecution, not judges. They had neither relations with judges or any strong relation with seniors in the Supreme Court. ...” 72.2 Email 2 (albeit from the earlier date of10 October 2025 ) provides input from the head of the CT team in 2021, confirming: “2. ... the relationship [with the ATC] changed when the team recruited a Criminal Justice Advisor and moved away from broad capacity building (provided by ... ASI). A detailed negotiation with the Chief Justice was undertaken AFTER the CPC Annex was published to agree a process by which the Chief Justice would agree that “UK interest cases” could be heard at Kabul ATC instead of Baghram ... 3. What form did assistance to the court take? Did it change over time ...? ... it included broad training on judicial skills as well as some court infrastructure improvements. Following the appointment of the Criminal Justice Advisor (2018) there was greater focus on UK interest cases and ensuring the judges presiding over those cases understood the facts of the case and maintained oversight of the case at all times pushing for compliance with legislation. Some mentoring sessions were held with the judges in those courts. 4. Did we have separate relationships with specific judges? If so, why? Yes. The Head of the Primary and Appeal courts to better understand the challenges they and their teams faced. 5. How were the judges with whom we had relationships selected? And when? ... The UK worked with all judges at the ATC but only had a special relationship with those handling UK interest cases. 6. Were there judges who worked in the court with whom we had no relationship? Yes, based on time and caseloads. ... 8. Did FCO/[embassy] officials or contractors visit the court and/or judges? If so, how regularly and for what purpose? Yes. Frequency of visits and their duration varied and were dependent on the security situation and scheduling. On average likely once every eight weeks. 9. If we have no record of a judge who worked at the court between 2015 and 2016, is it possible that we had a relationship with them? ... prior to the appointment of the CJA it’s highly unlikely that the UK would have had a relationship with that judge.”
“... represented the FCDO supporting and assisting the Afghan government to increase its capacity to deal with terrorist crimes more efficiently, rather than the reverse, as required ...”
“ii. Provision of computers and databases in/or around 2015/2016 Despite searches of FCDO systems, no evidence was found that the FCDO funded or provide improvements to office facilities or equipment I the period the application was working at the ATC. When consulted ... an ex-[embassy] CT team official confirmed that the FCDO did not provide computers and/or databases for the ATC between 2011 and 2016 ... The Deputy Head of the CT Team, 2017-2019, confirmed that the FCDO funded the provision of computers in the ATC offices during the time they worked in their role ... but not during the period the applicant worked at the ATC. Searches of FCDO systems revealed that in the 2018/19 financial year the FCDO funded video-conference facilities in the ATC and some NDS detention centres to assist in hearings ... In the 2019/2020 financial year the FCDO funded installation of two secure doors at the ATC and CCTV in the reception area and detainee waiting room. These last works were completed in September 2019. ... iii. Assistance with an ATC office move in the form of equipment and furnishings in early-mid 2016 ... Despite extensive searches, no evidence was found that indicates the FCDO assisted the ATC with “moving offices” during the period the applicant was in his ATC role. ... When consulted for this assessment, an ex-[embassy] CT official (CT prosecution lead 2015 to 2016 and Head of the CT team 2016 to 2017) confirmed that the FCDO did not assist the court with an office move during this period (2015-2017) and that the ATC did not move office or court in that same period either. When consulted, the Deputy Head of the CT team from 2017 to 2019 confirmed that in August 2018 the ATC primary court moved into the same location as the ATC appeals court. ... Although distinct from “moving offices”, an ex-[embassy] CT team member confirmed that in 2015 the FCDO provided funding for a local contractor to carry out work to assist in establishing a courtroom within a new building constructed by the USA on the NDS 40 compound (an NDS facility in Kabul) ... This work was completed in June 2015. ... I considered this constituted FCDO minor logistical support to the ATC and not a working relationship between the FCDO and the ATC involving a partnership with or close support and assistance to the FCDO ...”
“8. Regarding the case reports, I confirm that I always gave these orally when a director asked me to join a meeting with a British official asking about one of my cases. It is possible that the Directors gave them written reports, however that would have been in my absence and given on a director level, so I was not privy to that. I estimate that I gave such reports 15 or 16 times. I also confirm ... that I never went to the Embassy to give a case report. I know that some other judges did during my time at the Anti-Terrorism Court. 9. Regarding officials attending court, I remember this happening on two occasions. I understand that the arrangements for the officials to attend were also made through the directors.”
“Even where the FCDO was interested in a case, they did not work alongside trial judges and always maintained judicial independence. ... the interest was in assisting the Afghan authorities to establish an effective end-to-end prosecution system for dealing with terrorism cases that was compliant with international standards and where all Afghan government departments worked effectively together. By working on investigation and prosecution pathways and not with judges the FCDO’s approach expressly maintained judicial independence and did not favour one judgement over another (guilty/not guilty). Further, interviews with ex-officials confirmed that this independence was an expectation of the Afghan judges in the ATC.