CBC & Anor, R (on the application of) v Secretary of State for Defence & Anor [2026] EWHC 2147 (Admin)

[2026] EWHC 2147 (Admin)

Case No AC-2025-LON-003174

Case No AC-2025-LON-003694

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11/08/2026

Before

MR JUSTICE GARNHAM

THE KING

Between

(on the application of CBC)Claimant

(on the application of GSD)Claimant

SECRETARY OF STATE FOR DEFENCEDefendant

SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH ANDDefendant

DEVELOPMENT AFFAIRSDefendant

Tim Owen KC and Emma Daykin (instructed by Deighton Pierce Glynn) for Claimants

Samantha Broadfoot KC, Benjamin Seifert and Matthew Fraser (instructed by the Government Legal Department) for Defendants

Martin Goudie KC and Gayatri Sarathy (instructed by the Special Advocates Support

Office)

Hearing Hearing dates: 1 & 2 July 2026

Approved Judgment

This judgment was handed down remotely at 10.30am on 11 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

MR JUSTICE GARNHAM

Introduction

[1]This case concerns the application of a Government policy known as the “Afghan Relocation and Assistance Policy” (or “ARAP”) to two individuals. The first Claimant, known in these proceedings as “CBC”, seeks permission to apply for judicial review and, if that is granted, substantive relief in respect of a decision dated 20 June 2025 refusing his application under the policy. The second Claimant, “GSD”, also seeks permission to apply for judicial review and substantive relief, in his case in respect of the Defendants’ decision refusing his application dated 4 September 2025.

[2]ARAP was introduced on 1 April 2021. It continued in force until July 2025. It has been amended on a number of occasions. The version with which I am concerned is that contained in an appendix to the Immigration Rules, Appendix ARAP 3.6.

[3]Both Claimants are Afghan citizens and former security guards at the British Embassy, Kabul (“BEK”). Both applications were refused on the basis that the Claimant did not, in the course of their work at BEK, make a “substantive and positive contribution towards the achievement of one or more of the UK Government’s military or national security objectives with respect to Afghanistan” and so did not satisfy Condition 2 of Category 4 of ARAP.

[4]CBC remains in Afghanistan with his wife and children, who are the 6 CBC interested parties. GSD is now in the UK with his wife and two younger children, having been relocated here pursuant to a different policy, the Afghan Citizens Resettlement Scheme (“ACRS”), in October 2023. He pursues his ARAP application because his two older children, the GSD interested parties, were over the age of 18, and were found not to meet the criteria for eligibility as adult family members. His son would automatically be eligible under ARAP if he is eligible.

[5]Both Defendants play a part in the decision-making process under ARAP, although the final decision is made by the Second Defendants, the MOD.

[6]Having heard competing submissions over a day and a half, I can indicate immediately that these claims are, at least, properly arguable and I give permission to each Claimant to apply for judicial review.

[7]The Court had formerly made a declaration under s.6 of the Justice and Security Act 2013 in this case. At the commencement of the hearing, however, I was addressed in CLOSED by the special advocates and counsel for the Defendants. I was told that as a result of developments in the case, it was agreed by all parties, and the special advocates, that those parts of the documentation previously regarded as relevant to this case which remained CLOSED are now irrelevant to any issue to be determined by the Court, and so there was no reason for this material to be unredacted. Accordingly, I made an order pursuant to s.7 of the 2013 Act revoking the declaration made under s.6.

The Procedural History

[8]CBC first made an ARAP application on 10 May 2021. That was refused on 13 July 2021. He made a further application on 3 January 2022. That was refused on 31 July 2023. CBC exercised his right to a review of that decision on 10 January 2024. Following a review, the First Defendant maintained their decision that he was ineligible in a letter dated 29 August 2024. A claim for judicial review against that review decision was settled pursuant to the terms of a consent order dated 6 January 2025 which led to a second review decision on 6 March 2025. Following a letter before action, the Defendants again agreed to reconsider the review decision, which led to the third review decision in June 2025. That is the decision under challenge in these proceedings.

[9]GSD first made an ARAP application on 1 July 2021. That was refused on 3 August 2023. He applied for a review of the decision which was rejected on 23 November 2023.

[10]GSD also submitted an expression of interest for resettlement under what was called “ACRS Pathway 3”. Having been found eligible in principle for resettlement via that policy pathway, he then made a request for the relocation of additional family members. On 15 December 2023 GSD’s application was accepted under Pathway 3. His wife and two minor children were also admitted under that policy, but his two adult children were not accepted as “additional family members”. They did not meet the exceptional dependency threshold defined in the relevant guidance.

[11]On 22 April 2024, GSD, his wife and his two minor children arrived in the UK, pursuant to the terms of ACRS. Following pre-action correspondence in December 2024 a further review of GSD’s ARAP application was made. The original decision was upheld on 4 September 2025. It is that decision which is under challenge in these proceedings.

The Grounds of Challenge and Issues That Arise

[12]The Claimants each advance the same four grounds of challenge: i) The decisions were unfair due to the “failure to publish and apply applicable ARAP policy guidance, namely the “Category Four (Cat 4) Operational Guidance – FCDO Sponsorship and Review”, which for convenience I will refer to as “the Cat 4 Operational Guidance”; ii) The decisions were unfair due to the “failure to publish ARAP policy decision”, i.e. an alleged “policy decision” to exclude security guards from ARAP eligibility; iii) The decisions misinterpreted ARAP Category 4 Condition 2, and the SSD fettered his discretion in applying Condition 2 due to the alleged “policy decision” to exclude security guards; iv) The decisions were irrational in their application of ARAP Category 4 Condition 2.

[13]The parties agree that, in consequence, four issues arise for decision. Slightly rephrased by me, they are as follows: i) Was there unfairness in the Claimants’ cases arising from the failure to publish or apply the Cat 4 Operational Guidance? ii) Was there unfairness arising from the alleged failure to publish the alleged policy position that BEK guards as a class were ineligible under ARAP? iii) Did the caseworkers misinterpret the requirements of ARAP Category 4 Condition 2? Did they apply an approach outlined in a document dated 18 January 2022 entitled “Information Note: ARAP Category 4 FCDO Sponsorship decision”, or the substance of it, to the Claimants’ cases? If so, did they fetter their discretion? iv) Was the decision making re: ARAP Category 4 Condition 2 irrational? In particular: a) Was there a failure to consider the contribution of the institution where the Claimants worked to military and national security objectives as relevant to assessment under Condition 2? b) Was there a failure to consider the threat level faced by BEK at the relevant time and the importance of the Claimants’ work in protecting it from that risk? c) Was there an unreasonable conclusion on the facts that as long-serving security guards at BEK the Claimants did not make a substantive and positive contribution to the UK’s military and national security objectives in Afghanistan? d) Did the caseworkers apply the incorrect tests of “compelling evidence”, or did they wrongly conflate “substantive” with “substantial” in applying the test? By the end of the hearing, it was plain that this ground was no longer pursued by Mr Owen and accordingly, I do not consider it further. e) In the case of CBC, did the caseworkers take into account irrelevant matters or fail to take into account relevant ones?

The Terms of ARAP

[14]Between the introduction of the scheme in December 2021 and its closure in July 2025 there were four categories under ARAP. Category 1 was for persons directly employed by the UK Government in Afghanistan who were eligible for urgent relocation because they were assessed to be at a high and imminent risk of threat to life. Category 2 was for persons directly employed by the UK Government in Afghanistan (or those who were contracted to provide linguistics services to, or for the benefit of, the UK’s Armed Forces in Afghanistan) who were eligible for routine relocation. Category 3 provided for the cohort of persons eligible for other support “who are neither assessed to be at high and imminent risk of threat to life nor eligible by default due to holding exposed, meaningful, enabling roles”. That cohortwere “eligible for all other support short of relocation as deemed suitable by the ARAP team”.

[15]I am concerned with Category 4 of ARAP. The relevant immigration rule for Category 4 is contained in Appendix ARAP 3.6. It provides 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.

[16]It is the underlined passages which are central to the issues in these cases.

The Decisions

[17]The decisions under challenge were contained in letters to the Claimants from the MOD’s “Defence Afghanistan Relocation and Resettlement” (“DARR”) department. In CBC’s case that letter was dated 20 June 2025 and read as follows: Thank you for requesting a review of your application for relocation to the United Kingdom under the …ARAP Scheme. Review decisions are made in accordance with the policy in place at the time of the original eligibility decision. We have reviewed the decision that you were not eligible for the ARAP which was made on (31 July 2023) and have considered the additional information you have provided.

[18]The letter then set out that the MOD did not consider him eligible under Category 1 or Category 2. That is not in dispute. Category 3 was not material for present purposes. The letter then set out the reasoning for the decision for Category 4. That provided as follows: 4. From the information you have provided you are not eligible under Category 4 of the ARAP scheme because you do not meet the eligibility requirements which require both Conditions 1 and 2, and one or both of Conditions 3 and 4 to apply:a. Condition 1 is that you were directly employed in Afghanistan by the UK government, or provided goods or services under contract to the UK government, or worked in Afghanistan alongside a UK government department, in partnership with or closely supporting it; You have not demonstrated or evidenced that you were directly employed in Afghanistan on or after October 2001 by a UK Government Department. You have demonstrated that you provided services in Afghanistan under contract to a UK Government Department via your role as a G4S Secure Solutions (Afghanistan) contractor – Guard at British Embassy Kabul (BEK) from 2014 ... Cross Government checks were made in relationship to your role with the British Embassy in Kabul which also confirmed you meet Condition 1. The decision maker is therefore satisfied that you meet Condition 1.

b. Condition 2 is that in the course of the employment or work or the provision of services under Condition 1, you made a substantive and positive contribution towards the achievement of either the UK Government’s military objectives with respect to Afghanistan (i), and/or, the UK Government’s national security objectives with respect to Afghanistan. The decision maker is not satisfied that you made a substantive and positive contribution to the UK Government’s military objectives with respect to Afghanistan. You were fulfilling a G4S contract to provide security, not military service, to the British Embassy in Kabul (BEK). Suggestions that the security service you provided made a substantive and positive contribution to the UK Government’s military objectives, because the activity undertaken by other personnel at BEK was directly related to the UK’s military objectives and you provided security to them, are too indirect and diffuse. Whilst it is accepted that BEK required security services to operate it is not accepted that your personal service constituted a substantial and positive contribution to the UK Government’s military objectives in Afghanistan. The decision maker is satisfied that you do not meet Category 4 Condition 2 (i). In relation to your employment as a Security Guard on a British Embassy Contract a check was made with a Government Department. The check confirmed that you did not make a substantive and positive contribution to the UK’s national security objectives (which includes counter-terrorism, counter-narcotics and anti-corruption objectives) with respect to Afghanistan. The decision maker is satisfied that you do not meet Category 4 Condition 2 (i) and (ii). Category 4 Condition 3 and 4 cannot be met where there is no evidence that Condition 2 has been satisfied. Therefore, the decision maker is not satisfied that you meet the conditions for Category 4. 5. We have therefore assessed you do not meet the necessary criteria for Categories 1, 2 and 4 of the ARAP scheme and have upheld the not eligible decision made on the date mentioned above. 6. As a result of the Review Team upholding the original decision, this concludes your one right of review.

[19]In the case of GSD, the decision was contained in a letter dated 4 September 2025. It indicated that DARR had reviewed the decision dated 2 August 2023 that he was not eligible for ARAP and had considered the additional information he had provided. It confirmed that he was not eligible under Category 1 or 2 of ARAP and then turned to Category 4. From the information you have provided you are not eligible under Category 4 because you do not meet the eligibility requirements which require both Conditions 1 and 2 and one or both of Conditions 3 and 4 to apply:a. Condition 1 is that you were directly employed in Afghanistan by the UK government, or provided goods or services under contract to the UK government, or worked in Afghanistan alongside a UK government department, in partnership with or closely supporting it; Your employment with G4S (2004-2020) and GardaWorld (2020-2021) does not demonstrate direct employment with a UK department. A cross-government check concluded that through your work as a contracted security guard at British Embassy Kabul (BEK) with G4S and Garda World you provided goods or services to a UK Government department. The same cross-government check also confirmed that through your employment you worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department. We are satisfied that you meet 1 (b) and 1 (c) meaning Category 4 Condition 1 has been met.

b. Condition 2 is that in the course of the employment or work or the provision of services under Condition 1, you made a substantive and positive contribution towards the achievement of either the UK Government’s military objectives with respect to Afghanistan, and/or the UK Government’s national security objectives with respect to Afghanistan. You have claimed that in the course of your employment or work or provision of services you have made a substantive or positive contribution to the UK Government’s national security or military objectives with respect to Afghanistan, specifically in your role as a guard working at the British Embassy Kabul. In terms of your contribution towards the UK’s military objectives with respect to Afghanistan, whilst the assertions of guarding crucial places around the main BEK building including British Army staff houses were noted, the decision maker was not satisfied that there was compelling evidence to support or demonstrate that you made a substantive and positive contribution towards the achievement of the UK’s military objectives with respect to Afghanistan in your specific role. As a result, condition 2 (1) has not been met. A cross-government check with another government department was sought in respect of Condition 2 (2), the government department acknowledged that your view of the size and importance of BEK and the role it played in delivering UK’s objectives including military and national security objectives. However, Condition 2 specifically focuses on an applicant and their role. The description provided of the role assigned and specifically carried out by you did not establish your work made a significant contribution towards the achievement of the UK Government’s national security objectives with respect to Afghanistan. It was concluded that the evidence provided did not demonstrate how your role specifically made a substantial contribution to national security objectives. As a result, it was concluded that the applicant did not meet Condition 2 (2). As a result of Condition 2 not being met, the other conditions of Category 4 have not been assessed as to be eligible for Category 4 both Conditions 1 and 2 have to be met. We have therefore assessed you do not meet the necessary criteria for Categories 1, 2 and 4 of the ARAP scheme and have upheld the not eligible decision made on the date mentioned above.

The Claimants’ Evidence

[20]Both Claimants have provided detailed statements in support of their claims.

[21]CBC says he worked with the Afghan National Army from 2003 to 2007. From 2008 until 15 August 2021, he worked for the UK company G4S. He began working as a security guard at BEK from 2008. He was promoted in 2010. He remained in that post until 2014. He worked at various locations in the Embassy but was primarily based on the front gate checkpoint, carrying out vehicle security checks, personal checks, and checking visitor information. He was unarmed but wore body armour. He was, he said, the first line of defence for the Embassy at a key focal point for attacks.

[22]CBC worked 6 days a week rotating between 3 shift patterns each week. He said that hundreds of people passed though the Embassy gates each day including diplomats, ISAF military personnel, NGO workers and Embassy staff. The British Ambassador would come through the gate on most days. He said he received training, every three months, in subjects such as handling bombing situations and high security alerts. That training was conducted by British and Afghan trainers at the G4S camp.

[23]There were frequent security threats directed at the British Embassy and a number of attacks on the Embassy and/or on other Embassies in the vicinity. CBC remembers an attack in September 2011 which was directed towards the BEK from a high building some 500 or 700 metres away. The regularity and severity of the threats to which the BEK and surrounding organisations were exposed during the years that he guarded at the BEK front gate are, he says, well known to the Defendants and some were reported in the press. Those attacks are summarised in helpful witness statements from Mr Daniel Carey and the former Ambassador Sir Nicholas Kay.

[24]After nearly 6 years at BEK, CBC was asked by G4S to transfer to a different contract on which he worked from 2014 until August 2021. His contract with GPS was terminated by G4S when the Taliban took over the Afghan government in August 2021.

[25]Immediately after the fall of the Afghan government, CBC stayed at home for a few days before he felt it safe to go outside. Friends and neighbours began accusing him of being a British spy. Around 2023 the Taliban came to his home twice within the space of 30 or 40 days. The first visit was part of a general house-to-house search. The second raid was, CBC says, targeted at him. Four Taliban came to his home and asked for him directly. He had seen them coming from the window of his apartment and so had left before he was found. He understands that someone had reported to the Taliban that his address was occupied by someone who had worked for the UK Government. CBC’s children informed the Taliban that their father was just a taxi driver.

[26]CBC attempted to move his family to a new location but found it difficult to rent alternative property because he said his neighbours had named him as a Western spy. He limited going out in public and remained at home as much as possible. Some six months later he was able to find accommodation to rent in a different area.

[27]CBC currently lives with his family, the interested parties, in a rented apartment. He is unable to find work due to the high likelihood that he would be required to attend the Ministry of the Interior for identity checks and those checks would reveal his previous employment with BEK. He still avoids going outside as much as possible. He is reliant on borrowing money from acquaintances or buying food on credit.

[28]GSD says in his statement that he worked as a guard at the BEK for more than 17 years, in the period from 2004 to 2021. He was employed by two private companies who were contracted by BEK to provide their security. He was a security guard working on rotation at various posts around the BEK compound, including at the front gate which was a particular target of terrorist attacks. He was armed on occasions in the performance of his duties. Over his years of service, the BEK was frequently subject to security threats and attacks with rockets and bombs. He was the first line of defence for the Embassy at a key focal point for attacks. He was responsible for ensuring that those entering the facility would not harm those inside and was required to monitor the exterior for suspicious behaviour.

[29]GSD made an application to ARAP on 1 July 2021. At the time of the application one of his children was under 18 years of age and the other was 19. The application was rejected and renewed as discussed above.

[30]In the meantime, the ACRS scheme was launched, and GSD applied and was accepted under that scheme. He was accepted on 23 October 2023 on the basis of his work with GardaWorld. His wife and two younger children were accepted for relocation to the UK with him, but his older children were found ineligible.

[31]On 22 August 2024, GSD, his wife and two younger children were relocated to the UK. His older children remained in Afghanistan. They are financially dependent on him because the security risks were too high for his son to find work and his daughter was not allowed to work because she was a woman. They moved to new locations to try and avoid detection, but otherwise rarely go out.

[32]If GSD’s ARAP application were to succeed his son would automatically be entitled to relocation to the UK as an immediate family member because he was under 18 at the date of the application. His daughter would be able to apply as an additional family member as a lone woman. It is said that the impact on GSD’s mental health of leaving his children in Afghanistan has been substantial. He has been diagnosed as suffering from major depressive disorder, anxiety and PTSD, exacerbated by fears for the safety of his children.

The Evidence as to the British Embassy, Kabul

[33]There is no dispute that BEK was one of the UK’s largest embassies and was the base for UK representation in Afghanistan between 2001 to 2021. It is agreed, entirely unsurprisingly, that it played a significant role in achieving the UK’s objectives in Afghanistan, including military and national security objectives.

The Defendants’ Evidence

[34]The Defendants rely on two witness statements from Mr James Montagu, Deputy Director in the DARR at the MOD, and one from Mr Dan Samedi-Smith, Deputy Director responsible for Afghan Resettlement Programme casework within the DARR at the MOD.

[35]In his first statement, Mr Montagu explained that ARAP was originally designed in late 2020 and early 2021 to bring to safety in the UK only those who had worked for the UK Armed Forces and UK Government Departments, as direct employees, reflecting the debt of gratitude owed to these members of locally-engaged staff and in the face of changing circumstances in Afghanistan following the withdrawal of US and allied forces.

[36]He said that: during spring and early summer 2021, the situation in Afghanistan deteriorated rapidly, with the Taliban overthrowing the Western-backed Afghan Government in August 2021. At the same time, Ministers and officials recognised that many more Afghans were seeking safety outside Afghanistan than could meet the ARAP criteria. While the majority of those evacuated were either British nationals or ARAP-eligible individuals, spare seats on the evacuation flights were offered to a few cohorts of other Afghans. As they did not meet the ARAP criteria, they received Leave Outside the Rules to enter the UK, and later became ACRS Pathway 1…During the period of the emergency evacuation, Ministers also made commitments to resettle three specific groups: British Council contractors, some British Embassy security guards and alumni of the Chevening scholarship scheme. They too were not expected to meet the ARAP criteria.

[37]In the aftermath of the withdrawal from Afghanistan, he said, 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. Options for the future ARAP criteria were developed and the final agreed criteria were those in use today, which were formally enacted in the Immigration Rules in December 2021. These new criteria included the narrow requirement that to be eligible under Category 4, individuals must, “inter alia”, have made a positive and substantive contribution to the achievement of the UK’s military or national security objectives in Afghanistan.

[38]He said that in parallel, the ACRS was under development in order to accommodate a wider range of Afghans who did not or were not intended to meet the existing or proposed ARAP criteria. The two schemes, ARAP and ACRS, were complementary, with ACRS Pathway 3 developed alongside the revised criteria for ARAP in the autumn of 2021. The ACRS was distinct from, and did not duplicate ARAP – rather, the ACRS was targeted at a different group of people who were not expected to meet ARAP criteria. To have duplicated eligibility would have used up precious, capped places on the ACRS.

[39]He said that ARAP was announced on 29 December 2020. It was launched on 1 April 2021 jointly by the SSD and Secretary of State for the Home Department. ARAP was a discretionary scheme established under prerogative powers. Those eligible and suitable for relocation to the UK under ARAP were able to relocate with eligible and suitable family members. The policy “has been altered over time to adjust to the changing situation”. The ARAP scheme closed to new applications on 1 July 2025, but all pre-existing applications are being assessed.

[40]He explained that as part of the ARAP decision-making process, the MOD refers some applications to other Government departments and specific parts of the MOD for input into ARAP decision making. This process is known as “enrichment”.

[41]He said it was necessary to set out the evolution of ARAP and in particular Category 4 in order to understand the intention relating to the scope of that category. In short, the cohort of people ARAP Category 4 was intended to relocate was very small, as reflected in the name (Special Cases) and the process (each decision individually approved by Ministers in MOD with SSFCDA providing enrichment when necessary).

[42]In paragraph 11 of his statement, he said this: As is clear from the development of policy detailed below, British Embassy Kabul (BEK) guards were expressly considered and were not intended to fall into Category 4.

[43]He returned to the intention behind the category 4 at paragraphs 72 – 74 of his first statement:72. The chronology above demonstrates that ARAP developed in incremental steps over the years, albeit the original concept and rationale remained the same. At its inception and its core, it was a policy intended for individuals who were locally employed by HMG, with very limited exceptions for those working under contracts with or alongside HMG rather than directly employed, i.e. under Category 4 those persons who could demonstrate firstly that they had a close working relationship with a UK Government Department (such that they held a contractual relationship with that Department or worked alongside them, in partnership with or closely supporting and assisting them (Category 4 Conditions 1(b) and 1(c) respectively)), and then that they made a substantive and positive contribution to the UK’s military or national security objectives with respect to Afghanistan. In parallel, ACRS Pathway 3 was developed with its own focused criteria requiring specific personal experience as either a British Council or GardaWorld contractor or a Chevening alumnus. The two schemes were deliberately designed to be complementary and not duplicative and only exceptionally would an individual qualify under both schemes ... The design of both schemes recognised the imperative of keeping a firm control over the numbers of persons who could be viably resettled in the UK.

73. As is apparent from the chronology and design processes described above, ARAP and ACRS developed in parallel from summer 2021 onwards. As was recognised in the FCDO’s Note of 5 October 2021, “ARAP and the ACRS need to complement each other”. Former Embassy security guards were expressly considered and discussed within HMG, with FCDO initially seeking to ensure the Category 4 criteria could accommodate them. However, as set out above this approach was not ultimately adopted and FCDO were satisfied that recent former Embassy Guards (GardaWorld contractors) were able to relocate via ACRS.

74. It was always the case that many more people would want to resettle in the UK than could either meet the ARAP criteria or be accommodated within the capped ACRS, and difficult choices therefore had to be made. BEK guards were not intended to meet the ARAP criteria, specifically ARAP Category 4 Condition 2 criteria. A decision was taken that the guards specifically contracted via GardaWorld to work at BEK at the point of, or just before, the fall of Kabul in 2021 were to be included within ACRS Pathway 3. Guards who had worked in previous periods and under other contracts were not included within the ACRS.

[44]Mr Montagu exhibits to his first statement two documents of particular interest. First is an “Information Note: ARAP Category 4 FCDO Sponsorship Decisions” (hereafter the “FCDO Sponsorship Information Note”). That document is dated 18 January 2022 and was sent from the Afghanistan Task Force to “PS/Lord Ahmad”. Lord Ahmad was at the time a Minister of State in the FCDO with responsibilities in respect of Afghanistan. The Information Note provides an “overview of ARAP”. It said that “FCDO officials have begun considering ARAP Category 4 cases for departmental sponsorship under the new criteria adopted last month.”

[45]Paragraph 7 of the note records: [O]n 14 December (2021) the Home Office changed the immigration rules to clarify and tighten eligibility criteria for Category 4 of ARAP. Category 4 is now only for Afghans who worked in partnership with HMG to support military or national security objectives and who because of their work face significant risk to life….

[46]Paragraph 13 provides that: Officials continue to receive requests for resettlement from groups who provide services to the Embassy including …those contracted by overseas supply services… and G4S guards who protected the Embassy before GardaWorld. These individuals are not eligible for resettlement under ARAP, nor will they be included in those groups sponsored for resettlement under ACRS in year 1…. We believe this is defensible: we owe no obligation, we are not aware of these groups being at heightened risk, and we cannot resettle all who would like to come to the UK” (my emphasis).

[47]The second document is the Cat 4 Operational Guidance (formally entitled “Afghanistan Relocation and Assistance Policy (ARAP) Category Four (Cat 4) Operational Guidance – FCDO Sponsorship and Review”). It is dated 20 June 2023. That document provides operational guidance for how ARAP applications are to be considered by FCDO officials. Under the heading “Considering the application”, the note provides as follows: The decision on sponsorship should be based on the evidence as to whether the individual meets the eligibility criteria set out in the Immigration Rules. Each application must be decided on its own merits, and on a case-by-case basis. The following questions and examples are intended to help caseworkers reach a reasoned assessment as to whether the eligibility criteria set out in the Immigration Rules have been met or not. 1. Has evidence been provided that the individual:a. Was directly employed by FCDO; or

b. Provided goods or services in Afghanistan under contract to FCDO (or former FCO/DFID) or

c. Worked in Afghanistan alongside, in partnership with, or closely supporting and assisting FCDO (or former FCO/DFID). 2. If yes, has evidence been provided that, working in the role described in a) above, the individual made a substantive and positive contribution to HMG’s military or national security objectives (including counter-terrorism, counter narcotics and anti-corruption) with respect to Afghanistan? For example, had the individual worked in or with an HMG partner unit directly supporting/contributing to HMG Counter Terrorism or other national security objectives? These individuals may have been directly employed by the Government of Afghanistan, but most will have received additional pay or other remuneration from HMG for their contribution to UK objectives. Additional pay/remuneration will not be determinative either way. … Condition 1 - The Immigration Rules state that applicants “on or after 1 October 2001 were directly employed in Afghanistan by a UK Government department; provided goods or services in Afghanistan under contract to a UK Government department; or worked in Afghanistan alongside a UK Government department, in partnership with or closely supporting and assisting that department”. - The key test is whether there is a direct involvement with or work alongside FCDO (or former FCO/DFID) activity in Afghanistan. For example, this might be through employment at the Embassy, as a contractor on an FCDO (or former FCO/DFID) funded contract or through regular and close association with the FCDO in Afghanistan, directly enabling delivery of UK objectives. Someone whose role aligned with UK interests and objectives e.g. on rule of law but where there was no direct support or assistance provided to FCDO, is unlikely to meet Condition 1. 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 and 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. An example would be a judge or prosecutor, employed by the government of Afghanistan and who had a close working relationship with the FCDO by reason of their contribution to UK rule of law objectives, but who was concerned with normal criminal matters rather than national security objectives. By way of example, if a specialist judge heard only or primarily national security cases, that might indicate this part of the criteria is fulfilled. - 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 and 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. An example would be FCDO funded humanitarian or human rights programmes, such as the Gender Based Violence Response Service programme. - Applicants who worked with HMG in sensitive operational roles on national security issues, for example judges, prosecutors, or investigators working on counter-terrorism, counter-narcotics or corruption cases, are likely to meet Condition 2. Individuals working on FCDO-funded development, governance, or human rights projects are unlikely to meet this condition.

[48]I was also referred to a document disclosed by the Defendants’ DARR department entitled “Eligibility Standard Operating Procedures”. This provides (at page 55) as follows: G4S ... were directly employed by the …FCDO… to provide services to the British Embassy Kabul (BEK). These roles can include security guards, … among others. Principals who provide evidence of working for … on the contract with British Embassy in Kabul (BEK) must be referred to CAT4 Team for onward referral to FCDO, regardless of what role they held.

[49]In his statement, Mr Samedi-Smith says that he had been asked about the FCDO’s Cat 4 Operational Guidance dated 20 June 2023. He said he had been informed: by my peer, Christine Ferguson, Head of Afghan Resettlement Dept in the FCDO, that having spoken to the FCDO caseworker who produced the FCDO enrichment note that they confirmed they had read the FCDO guidance, but did not use it to produce their enrichment as there is nothing in the guidance that makes it specific to a security guard. It is Christine’s view, that I agree with, that the case worker therefore worked in line with the published policy and Rules.

[50]I return later to consider the parties competing submissions, but it is convenient to note here that in paragraph 139 of their skeleton argument, the Claimants suggest that the following matters remain unclear on the Defendants’ evidence a) Whether the disclosed policy intention to exclude BEK guards from ARAP eligibility was communicated to other officials outside the distribution lists of the Ministerial Submissions 18 January 2022 Information Note. b) Whether the disclosed policy intention to exclude BEK guards from ARAP eligibility was conveyed to DARR officials and/or ARAP caseworkers, to the Defendants’ knowledge. c) How this policy intention is consistent with the Defendants’ pre-action denials that there were “no guidance documents, policy documents or decisions to “exclude” G4S-contracted BEK security personnel from either ARAP or ACRS” d) Whether both caseworkers in GSD and CBC were aware of the Category 4 FCDO Guidance. e) The full reasons why it was not applied in GSD and CBC. f) If those reasons were because they did not think the policy applied to BEK security guards, whether this weighed as a factor against meeting the Category 4 ARAP criteria. g) FCDO/G4S contract. Relevant because FCDO Cat 4 Guidance, under Condition 2, says ‘HMG programme/project documentation (such as business case or tender documents) may be relevant in showing UK’s nat sec objectives.’ h) ‘FCDO Refined Criteria’ – linked to in Category 4 Process Desktop Guide

[51]In his second statement, Mr Montagu addresses each of these matters. He says:a. There was no policy to exclude BEK Security Guards from ARAP Category 4. The ARAP policy, inevitably for a resettlement scheme, was not intended to resettle everyone. Therefore, many people were found ineligible, not because of any specific exclusionary policy targeting them, but because they did not meet the criteria. Officials working on the drafting of ARAP Category 4 in Autumn 2021 felt that BEK Security Guards would be unlikely to meet the updated ARAP Category 4 criteria. However, every application from a BEK Security Guard has received an ARAP eligibility assessment on the facts and merits of that application. The officials of either Defendant dealing with individual ARAP applications were not informed of any policy (or guidance) to “exclude” BEK Security Guards. The Ministerial Submissions and the 18 January 2022 Information Note exhibited to my first Witness Statement were not distributed to ARAP caseworkers.

b. See (a).

c. As explained in the Defendants’ Skeleton Argument, the “policy intention” explained in my first Witness Statement does not amount to a policy, decision, or piece of guidance, to the effect that BEK security guards are “excluded” from ARAP eligibility.

d. As explained in the Witness Statement of Dan Samedi Smith, the MOD caseworkers in GSD were aware of the Category 4 FCDO Guidance. Neither the FCDO nor the MOD caseworkers in CBC were aware of the Category 4 FCDO Guidance.

e. The reasons why it was not applied in GSD and CBC are set out in response to ground (1) of the Claimants’ claim in the Defendants’ Skeleton Argument.

f. The relevance or otherwise of the Guidance was not weighed as a factor against meeting the Category 4 ARAP criteria. The case notes set out the factors which were considered by the caseworkers.

g. I refer to para. 78 of my First Witness Statement. The Claimants argue that the FCDO/G4S contract is relevant because the FCDO Cat 4 Guidance, under condition 2, states “HMG programme/project documentation (such as business case or tender documents) may be relevant to showing UK’s nat sec objectives”. As explained in the Defendants’ Skeleton Argument, this guidance does not apply to the Claimants’ work as security guards, because it was not work for an FCDO-funded project or programme. In any event, it is not in dispute that BEK as an institution contributed to national security objectives.

h. FCDO Refined Criteria” – these are set out in Category 4 Process Desktop Guide, page 20.

The Relevant Caselaw

[52]I was referred by both parties to the leading Court of Appeal case in this area and to a string of first instance decisions which provide assistance as to the proper approach to challenges to decisions in ARAP cases. Most of this is uncontroversial.

[53]The Court of Appeal in R (LND1) v SSHD

[2024] EWCA Civ 278

at para. 39 held that the interpretation of the provisions in ARAP depends upon the language of the relevant rule, read in context, and having regard to the purpose underlying the rules. The provisions are to be interpreted sensibly according to the natural and ordinary meaning of the words used.

[54]At para. 46 Lewis LJ said this: I do not consider that the fourth factor identified by the judge, namely, the contribution made by the institutions where the individual worked to the United kingdom's military and national security objectives, is likely to be relevant to whether condition 1 (iii) is satisfied. That matter is likely to be principally relevant to an assessment of whether condition 2, not condition 1 (iii) was met.

[55]The Court confirmed (at para. 60) that while the interpretation of the relevant provisions is a matter for the Court, the application of the eligibility criteria in individual cases is a matter for evaluation and decision-making by the responsible public body. Provided that the provisions are interpreted correctly, and the application of those provisions is free from public law error, the evaluative judgment of the Defendants is to be respected.

[56]In R (BAL) v SSD

[2022] EWHC 2757 (Admin)

at [85], Steyn J held that: it is not for the Court to stand in the shoes of the decision-maker and substitute its own view. A decision may be held to be ‘irrational’ where the decision is outside the range of reasonable decisions open to the decision-maker. Or a decision may fail the test of rationality because the reasoning process is flawed so as to rob the decision of logic.

[57]The Defendants are to be given latitude in applying their judgement to the application of condition 2 of ARAP Category 4, albeit that the conclusion reached must not be demonstrably wrong: see R (MA) v SSFCDA & SSD

[2024] EWHC 332 (Admin)

per Swift J at [19].

[58]In R (BYK) v SSD

[2025] EWHC 235 (Admin)

, Farbey J said at [13]: Responsibility for the assessment of eligibility for relocation lies with officials within the Ministry of Defence. These officials are "best placed, liaising where necessary with other Government agencies operating in Afghanistan, to…assess [a person's] eligibility for relocation" …. In relation to Category 4 cases, the defendant may refer the case to other Government departments and agencies in order that they may confirm whether or not an individual has worked alongside a Government department.

[59]In R (ACG) v SSD

[2025] EWHC 2472 (Admin)

, Sir Peter Lane, in the context of a legal challenge to an ARAP decision, noted at [59] that a rationality challenge “creates a high hurdle for the Claimant to surmount”, and that applying “anxious scrutiny” due to the fundamental human rights in play “does not change the public law principles in play, so as to lead the Court into an inappropriate merits-based assessment”.

[60]In R (KP) v SSFCDA

[2025] EWHC 370 (Admin)

, which was not an ARAP case but a claim by a Sri Lankan national challenging the UK Government’s refusal to arrange for his relocation to the UK from Diego Garcia (an island in the British Indian Ocean Territory), the Claimant had been afforded international protection on account of his Tamil ethnicity. He challenged that refusal on grounds of irrationality. Chamberlain J dismissed the claim. At [55]-[63], he summarised the state of the law on “process” and “outcome” rationality, and the standard of review. At [75]-[78], he set out “three relevant propositions” that could be drawn from the authorities about “how to assess the rationality of decisions of this kind in respect of a person with a plausible claim to engage the UK Government’s responsibility”. In particular, he identified the third proposition at [78]: Third, however, the importance of the Claimant’s interests is not the only factor relevant to the Court’s approach to a complaint of outcome irrationality. The nature and importance of the public interests on the other side of the balance may also be important. In some fields, institutional considerations may require the Court to recognise that it is less well-placed than a democratically accountable decision-maker to evaluate the impact that a particular decision may have on a particular public interest, or the weight to be accorded to that impact. Equally, constitutional considerations may dictate that the Court should pay particular respect to the views of a democratically accountable decision-maker about how to balance the public and private interests. In such cases, even where a decision will have grave consequences for the individual, the Court may have to afford the decision-maker a wide margin when considering whether the outcome is irrational: [R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs

[2020] EWCA Civ 1010

[2021] 1 WLR 472

, [155]].

[61]In R (AFA) v SSHD

[2025] EWHC 2143 (Admin)

, I considered an application for judicial review by a Claimant who had made an application under ARAP on the basis that he had worked as a driver for a number of companies who provided security and risk management services in Afghanistan, work which involved driving armoured and other vehicles at the direction of his employers. His employers worked on two projects funded by the UK Government, and accordingly he was found to have satisfied Condition 1 of Category 4. However, his claim to have satisfied Condition 2 was rejected and he brought a claim for judicial review.

[62]I dismissed the claim, recording at [37] that, in considering the Claimant’s work on the projects, the Defendants concluded that the role he carried out was a “logistical and support function” and that “he did not himself deliver any programme objectives”. The Defendants had also found that the projects in question did not contribute to the UK’s “national security objectives” (see [39]). At [42], I said this: 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.

[63]In relation to the Defendants’ assessment of the Claimant’s role, I said: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.

[64]In R (MKA) v SSD

[2023] EWHC 1164 (Admin)

, Foster J observed at [50] that: The relevant features of the ARAP are not equivalent to hearing evidence, resulting in a judicial or quasi-judicial decision, it is a discretion-based scheme, and it is necessarily reasonably expedited. Judgements of fact and degree must be made and it may not be possible to give detailed reasons or any developed explanation about why as a matter of judgement a person falls to one side of a policy line rather than another.

[65]In R (STS) v SSD

[2026] EWHC 363 (Admin)

, Sheldon J cited MKA and agreed at [35] that, when reviewing the reasons for ARAP decisions, “whilst applying anxious scrutiny, the process is reasonably expedited, and the reasoning can be quite brief”. Accordingly, the reasons provided cannot be examined as if they were the product of judicial drafting to which an overly forensic analysis should be applied. Rather the Court should focus on the essential analysis and core findings made by the decision-maker and test this against public law principles, rather than apply a fine toothcomb to some of the wording used. The Court should also allow a degree of deference to the decision-maker, given that they have expertise in the area, drawing from the range of cases that come before them”: [37].

[66]Sheldon J in that case found that, although the reasons were brief, they were rational and lawful, and that the relevant individual had a “facilitating” role “quite removed from the relevant national security objective”: see [40] & [45].

[67]Sheldon J added at [42] that, in determining whether a “substantive and positive contribution” has been made by an individual consideration has to be given to what the individual did and what effect the individual’s services had in furthering the … objectives … That requires an evaluation on which different decision-makers, acting reasonably, may disagree.

[68]Of more immediate relevance to these challenges is the decision of Saini J in CHD

[2026] EWHC 566

, another claim for judicial review of the secretary of state’s refusal of an application under ARAP. The Claimant and his dependants were at serious risk of being killed by the Taliban as a result of his work as a logistics officer for an organisation operating in Afghanistan between 2008 and 2021. He was currently in hiding. His work involved advancing the justice system and rule of law in Afghanistan. The Foreign and Commonwealth Development Office had described the organisation as a core, national justice institution. The Claimant’s application under ARAP was rejected on the basis that he did not meet Condition 2 of Category 4 of the ARAP policy because his work did not make a substantive and positive contribution to the UK’s national security objectives in Afghanistan.

[69]Following service of the Claimant’s skeleton argument, the Secretary of State disclosed a copy of “Category Four (Cat 4) Operational Guidance – FCDO Sponsorship and Review” the document referred to at para. 55 above, which had been created to assist caseworkers in dealing with ARAP applications. That guidance had not before then been published.

[70]A few days after the conclusion of the hearing, the Secretary of State agreed to withdraw his decision, stating that whether advancing an effective justice system and the rule of law was a UK National Security Objective for the purposes of ARAP Category 4 was being reviewed. Although the Court had a discretion on whether to give judgment in those circumstances, it decided to do so given that the secretary of state’s decision was capable of affecting other ARAP cases.

[71]The Claimant had submitted that the decision was unlawful including because(i) it was a material error for the secretary of state to conclude that advancing a functioning justice system and rule of law in Afghanistan did not form part of the UK’s national security objectives in Afghanistan at the relevant time; and

(ii) the guidance should have been published, given that it raised issues on which a person affected by it could make informed or meaningful representations.

[72]The decision was withdrawn before judgment was given but Saini J exercised his discretion to give judgment nevertheless. He held that the promotion of a functioning legal system and the rule of law were national security objectives at the time material to the Claimant’s application (paras. 54-55, 58-61) and the decision to the contrary would have been quashed had it not been withdrawn.

[73]Saini J also concluded that the guidance raised issues about which a person affected by it could make informed or meaningful representations: it provided the “target” an applicant must aim for in much clearer and specific terms than the broad descriptions in the ARAP Policy.

The Competing Contentions

[74]I had detailed and helpful skeletons from all parties and heard detailed oral submissions. It is not necessary to summarise those submissions.

[75]In short summary, on behalf of the Claimants, Mr Tim Owen KC submits that BEK was a central facility for delivery of the UK’s military and national security objectives in Afghanistan. The Claimants worked on security duties, including front-gate protection, screening persons and vehicles, responding to security incidents, and protecting embassy personnel during periods of significant Taliban threat. Referring to the witness statements of Daniel Carey and Sir Nicholas Kay he said it was apparent that BEK was a high-value terrorist target and the role of Afghan guards was essential to the proper functioning of all the Embassy’s facilities.

[76]Relying on CHD

[2026] EWHC 566 (Admin)

, he argued that the unpublished Cat 4 Operational Guidance should have been published and applied. He submits that it contained material guidance relevant to the application of Condition 2 and that failure to publish it deprived the Claimants of the opportunity to make informed representations.

[77]The Claimants contend that recent disclosure reveals a previously undisclosed policy intent that BEK guards were not to qualify under Category 4. They argue that that policy was unpublished, inconsistent with earlier pre-action assurances, not reflected in the Immigration Rules or Operational Guidance, and therefore unlawful.

[78]The Claimants submit the Defendants wrongly focused on the individual role and failed properly to consider the contribution of BEK itself to UK objectives. Reliance is placed on LND1

[2024] EWCA Civ 278

, where the contribution of the institution is said to be relevant to Condition 2. They also argue that the Defendants unlawfully conflated Conditions 1 and 2 and applied a restrictive policy intention.

[79]The Claimants argue that it was irrational to conclude that long-serving guards protecting BEK from terrorist attack did not make a substantive and positive contribution to UK military or national security objectives. They contend the decisions failed to identify the relevant national security objectives, failed to assess BEK’s importance to those objectives, and irrationally characterised protection of BEK as merely localised or indirect.

[80]The Claimants rely on Tameside principles, arguing that the Defendants failed to gather and consider relevant material concerning the UK’s objectives in Afghanistan, BEK’s role in achieving those objectives, the threat environment, and the significance of embassy security functions.

[81]For CBC in particular, complaint is made that the decision-maker placed improper weight on matters such as employment by G4S, lack of military status, not coordinating with military forces, later transfer to another contract, and the source of commendations. The Claimants say these matters were irrelevant or were used to diminish evidence of substantive contribution.

[82]On behalf of the Defendants, Ms Broadfoot KC submits that the decisions turned upon the assessment of whether the Claimants individually made a substantive and positive contribution to UK military or national security objectives. She argues that the Claimants seek to replace lawful evaluative judgments with their own disagreement.

[83]As to Ground 1 she seeks to distinguish between complaints of non-application and non-publication of the the Cat 4 Operational Guidance. She points to the witness evidence from James Montagu and Daniel Smith who say that the guidance was not used by the caseworkers. She argues that the Cat 4 Operational Guidance was not a material consideration, still less one so obviously material that failure to consider it would be irrational. The guidance was focused on FCDO-funded projects and programmes and examples given, judges, prosecutors and development projects, do not resemble BEK security guards. She says that CHD is factually distinguishable because that case involved an FCDO-funded programme and a dispute about whether that programme advanced national security objectives. The Defendants maintain that BEK security guards did not fall within the categories discussed by the guidance.

[84]On publication, the Defendants argue that because the Cat 4 Operational Guidance was never used, no unfairness arose from its non-disclosure. They further submit that the Claimants did not identify, ahead of the hearing, any additional representations they would have made had they seen it. They invoke section 31(2A) Senior Courts Act 1981, contending any outcome would inevitably have been the same. As regards the representations made at the hearing which it was suggested would have been made, they say that adds nothing of substance to the Claimants’ cases because the Cat 4 Operational Guidance did not concern cases such as those of BEK guards.

[85]As to Ground 2, Ms Broadfoot submits that no unpublished exclusion policy existed. She refers to the Eligibility Standard Operating Procedures which require applications by G4S guards at BEK to be referred to the Category 4 Team and the FCDO, which she says is inconsistent with any blanket exclusion. She distinguishes between a historical policy “intention” during development of ARAP and an operative policy rule. Mr Montagu’s evidence concerning policy evolution is said merely to explain the legislative background. The Defendants contend no caseworker was instructed that BEK guards were automatically ineligible and that the detailed assessments undertaken in these cases demonstrate individualized decision-making.

[86]Ms Broadfoot characterizes Ground 3 as a reformulation of Ground 2. She submits there was neither fettering nor secret interpretation. Ministerial submissions and the FCDO Sponsorship Information Note were not provided to caseworkers. Those officials were directed to apply the published criteria and relevant guidance. The Defendants also reject CBC’s contention that Conditions 1 and 2 were conflated. They argue that LND1 requires separate consideration of the two conditions, but that Condition 2 necessarily involves examining the work identified under Condition 1 because contribution must be assessed in the course of that work.

[87]As to Ground 4, the Defendants accept that BEK contributed to UK military and national security objectives and submit that this was uncontroversial. However, relying heavily on AFA, they submit that Condition 2 focuses upon the contribution of the individual applicant rather than the institution. They argue that LND1 merely recognises institutional contribution as a relevant consideration; it does not convert everyone working at BEK into an eligible person. The case notes are said to have rationally concentrated upon the Claimants’ personal roles.

[88]As to the suggested failure by theDefendants to consider the threat to BEK or the Claimants’ security functions, Ms Broadfoot emphasises that neither was disputed. The Defendants’ position is that acceptance of a serious threat does not compel the conclusion that a guard made a substantive contribution to national security objectives. The case notes are said to demonstrate consideration of the Claimants’ roles, evidence and representations. The Defendants reject the proposition that every fact considered had to be expressly discussed in the reasons.

[89]As to the suggestion that the Defendants reached unreasonable conclusions on the facts, the Defendants submit that the challenge reduces to disagreement with the outcome. The Court’s task, they argue, is to determine whether the conclusion was reasonably open to the decision-maker. They resist the Claimants’ description of the decisions as absurd and caution against hypercritical analysis of language used in the reasons.

[90]As to the complaints specific to CBC’s case, the Defendants submit that the caseworker was entitled to consider CBC’s employment by G4S, his lack of military status, the absence of “substantial” military coordination, separation from ISAF forces, lack of military training and the source of his commendations. None is said to have been treated as determinative. Rather, they formed part of an overall evaluative assessment of contribution. The Defendants deny that evidence was discounted or that irrelevant considerations were applied.

Discussion

[91]Against that detailed consideration of the factual and legal background, it is possible to set out my conclusions on the issues raised in fairly short order, at least as regards issues 2-4. It is convenient to deal with issue 1 last.

Issue 2

[92]Issue 2 raises the question whether there was unfairness arising from the alleged failure to publish the alleged policy position that BEK guards as a class were ineligible under ARAP. The answer to that question is straight-forward: there is no evidence that there was any policy that BEK guards as a class were ineligible under ARAP.

[93]It is not entirely unsurprising that the Claimants should pose this question given that the evidence makes clear that it was the intention of the second Defendant to adopt such a policy. That emerges from the extracts from the first statement of Mr Montagu which are set out at para. 39-40 above and from para. 13 of theFCDO Sponsorship Information Note set out at para. 43 above. But the evidence also demonstrates, conclusively in my judgment, that that intent was never put into practice. First, there is the evidence of Mr Montagu in his second statement that “there was no policy to exclude BEK Security Guards from ARAP Category 4”. I have no reason to doubt the honesty or accuracy of that statement. Second, the DARR department document entitled “Eligibility Standard Operating Procedures” makes it clear that security guards employed by G4S to provide services to BEK must be referred onto FCDO for consideration of their claim. The existence of such an instruction would be entirely inconsistent with an extant policy disentitling security guards as a class from making an application. Third, there is no indication in any of the relevant case notes that the caseworkers proceeded on the basis of any “exclusion” of BEK guards from Category 4 eligibility.

[94]Accordingly, issue 2 is resolved in the Defendants’ favour and Ground 2 must be dismissed.

Issue 3

[95]The third issue is this: Did the caseworkers misinterpret the requirements of ARAP Category 4 Condition 2? If they applied the FCDO Sponsorship Information Note, or the substance of it, to the Claimants’ cases, did they fetter their discretion?

[96]If there had been evidence that the FCDO Sponsorship Information Note was provided to caseworkers, or that they were informed of its contents, then there may well have been merit in this ground. But there is no evidence that they were provided with it. In fact, there is nothing in any of the material I have seen to suggest that the FCDO Sponsorship Information Note was provided to caseworkers. To the contrary, caseworkers were expressly directed to apply the published criteria and relevant guidance. I reject that ground.

Issue 4

[97]Issue 4 is a rationality challenge. First, Mr Owen argues that there was a failure to consider the contribution of the institution where the Claimants worked to military and national security objectives as relevant to the assessment under Condition 2.

[98]Mr Owen was critical of my observations in para. 65 in AFA which he said was inconsistent with para. 46 of Lewis LJ’s judgment in LND1. I am not convinced there is any such inconsistency but, for the avoidance of doubt, I accept that in considering whether, in the course of the provision of services under Condition 2, a person made a substantive and positive contribution towards the achievement of one or more of the relevant objectives, the decision maker must have regard to the nature of services being provided by his employer, the contribution that makes to the achievement of those objectives and the nature of the individual’s contribution to the provision of those services.

[99]However, on the facts of the present case, the suggestion that the Defendants did not take into account the role of the BEK is hopeless. There were frequent references to BEK in the case notes. It is self-evident that there were people working at the BEK, including the ambassador, who were making a substantive contribution to the UK’s military and national security objectives, and it is common ground that BEK as an institution made such a contribution. That did not need to be spelt out. The case notes recognise the nature of the Claimants’ roles as security guards in defending the Embassy and its staff. But the decision makers were obliged to focus on the contribution made personally by the applicant to the achievement of the relevant objectives. As Ms Broadfoot correctly submits, the question whether the applicant made the required contribution “cannot be answered simply by assessing the contribution of the programme/institution for/at which he worked. Otherwise, every single person who worked at BEK, at any time and in any role, would be ARAP eligible under Category 4”.

[100]The case notes assess that CBC’s provision of security for BEK was not a contribution to a national security objective but to a “highly localised one”. On behalf of CBC, it is said that that amounts to the drawing of an irrational distinction between “localised and national security threats”. I reject that argument. This was simply an assessment that CBC’s role was the provision of localised security for BEK, and, as Ms Broadfoot puts it, “that CBC himself – merely by dint of working at BEK – was not making a substantive contribution to UK national security objectives.”

[101]Next, Mr Owen argues that there was a failure to consider the threat level faced by BEK at the relevant time and the importance of the Claimants’ work in protecting it from that risk. Again, there seems to me nothing in that point. It is apparent from the case notes that the Defendants knew precisely where the Claimants had been working and what tasks and what risks that involved. There was no obligation on the Defendants to identify in the decision letter, or the case notes, every matter taken into account. The issue for the Court is whether there were legally adequate reasons for the conclusion reached, a matter I have addressed in response to Ground 1.

[102]Mr Owen suggests that the conclusion that as long serving security guards at BEK the Claimants did not make a substantive and positive contribution to the UK’s military and national security objectives in Afghanistan was unreasonable. That is an expression of disagreement not a submission of legal error.

[103]Finally, Mr Owen argues that the caseworkers in CBC’s case took into account irrelevant matters or failed to take into account relevant ones. In particular he says the Defendants:• diminished the value of CBC’s security work and proactive measures taken when the BEK was under attack because he was employed by G4S and not acting in concert with the UK military;

• diminished CBC’s actions in response to terrorist attacks on the BEK because he was unarmed and did not act in a military capacity;

• had regard to the fact that CBC did not “coordinate’ with military forces during an attack on BEK;

• focused on the relationship between CBC and military forces as opposed to the substance of his contribution;

• wrongly took into account that CBC went to work on a different G4S contract rather than remaining at BEK; and

• gave insufficient weight to CBC’s training in bomb handling and high security alert situations on the basis that it was not military training or in service of a military unit and to the fact that certificates of merit and exemplary service commendations because they were issued by G4S for his work at BEK rather than the BEK itself.

[104]On this topic I accept Ms Broadfoot’s overarching submission that in advancing these points Mr Owen was seeking impermissibly to “over-scrutinise isolated parts of the reasoning, rather than fairly evaluating the rationality of the reasoning when taken as a whole”. I agree that the acid test is whether when the decision letter and case notes are read as a whole the reasons for refusing CBC’s ARAP application were rational.

[105]On the individual points Mr Owen raises, in my judgment the Defendants were perfectly entitled to take into account, when considering whether CBC had made a substantive contribution to achieving UK military objectives, the fact that he was employed by a private security company, and was not acting in concert with the UK military, that he did not act in a military capacity and was unarmed; that he did not coordinate with military forces during attacks, that he operated separately from ISAF forces and the fact that he did not have military training. All those matters were relevant to whether he contributed to the UK’s military objectives.

[106]When it was said that the Claimant was not an “indispensable member of the BEK security team” the Defendants were not purporting to apply a different test from that found in the policy; they were simply commenting on the nature of his role. The Defendants were entitled to note that the Claimant’s certificates were issued by G4S rather than BEK/the Defendants. This did not amount to trying to reverse or undermine the conclusion that Condition 1 was satisfied. This material was assessed and taken into account.

[107]In those circumstances Ground 4 is dismissed.

Issue 1

[108]The critical issue seems to me to be the first one, namely, was there unfairness in the Claimants’ cases arising from the failure to publish or apply the Cat 4 Operational Guidance.

[109]Saini J said in CHD that the ARAP Policy, particularly in relation to Condition 2, stated very broad criteria. That is undoubtedly true. What in my judgment emerges from the run of first instance decisions on ARAP cases was the breadth of the criteria and the apparent lack of any guidance to decision makers as to how those criteria are to be applied.

[110]The case workers’ notes in the present cases are good illustrations of the difficulty.

[111]In CBC’s case, the FCDO decision maker’s assessment dated 13 February 2025 accepted that CBC provided goods and services to the FCDO/HMG and that he worked alongside a UK Government department, in partnership with or closely supporting and assisting that department. Therefore, Condition 1 (b) and (c) of Category 4 was accepted. The FCDO assessment then considered Condition 2, addressing the national security objectives. The FCDO assessment acknowledged that CBC’s responsibilities were the provision of security services as a guard and that his duties included being a guard at the front gate of BEK and various other locations around the Embassy. The conclusion reached was that “His work contributed to the smooth and secure running of BEK. However this in itself does not constitute a substantive contribution towards the achievement of the UK’s national security objectives. Neither the applicant nor his representatives have provided evidence that he himself made a substantive contribution towards the achievement of the UK’s national security objectives”. Accordingly, the FCDO assessment was that CBC did not meet Condition 2.

[112]The assessment provides no explanation of why, in the caseworker’s opinion, the work described did notconstitute a substantive contribution towards the achievement of the UK’s national security objectives. In reality the decision is just an assertion that the test was not met.

[113]Rather more detailed reasoning is provided in the MOD assessment of CBC’s contribution to military objectives. The DARR assessment accepted that CBC undertook “routine security work” at the BEK as well as being proactive in security measures when the Embassy came under attack. The assessment continued: it is evident that the applicant did not operate in a military capacity, the applicant was unarmed and notes that; “Everyone, including us, were required to got to the safe rooms. Only Nepalese armed guards who were stationed on the watch towers remained at their posts.” The applicant does not indicate how or if he coordinated with military forces during the attack.

[114]The assessment concluded that the suggestion that because CBC was providing security to other personnel at BEK involved in activity directly related to the UK’s military objectives he met the criteria was “too indirect and diffuse”, language repeated in the decision letter of 20 June 2025. The DARR assessor discounted CBC’s regular training because it was not military training or in the service of a military unit. The assessor further discounted CBC’s evidence of exemplary service and commendations because they were issued by G4S rather than BEK “indicating that BEK itself has not provided a document to suggest a substantive and positive contribution”.

[115]In my judgment, that was more than mere assertion and did constitute a reasoned explanation.

[116]A similar picture emerges from the caseworkers notes in GCD’s case. There, the FCDO assessment acknowledged the representations of GSD’s representatives about the size and importance of the BEK and the role it played in delivering UK objectives, including military and national security objectives. It continued: However, Condition 2 requires “…that the person, in the course of that employment or work or provision of those services, made a substantive and positive contribution towards the achievement of…” I considered the applicant’s role to see whether he personally met these criteria through his work.

[117]The assessment continued as follows: From the information provided by the applicant and his legal representatives, it appears that the applicant’s responsibilities were the provision of security services, which he performed in his roles as a guard. His duties also included being a guard at the main gate of BEK and possibly at various other locations around the Embassy. His work supported the smooth and secure running of BEK. However, this in itself does not constitute a substantive contribution to the delivery of national security objectives. Neither he nor his representatives have provided evidence to establish that he, in his role as a security guard at BEK, was himself making a substantive contribution to the delivery of UK national security objectives in Afghanistan. Therefore, in assessing against condition 2, I concluded that the applicant did not meet condition 2b.

[118]Again, there is no explanation of why the applicant’s work does not constitute a substantive contribution to the delivery of UK national security. Instead, there is just assertion that the criteria are not met.

[119]As with CBC, the MOD assessment is rather clearer. In relation to the consideration of substantive contribution to military objectives the DARR assessment noted the representations about the importance of the BEK to UK objectives but focused on the personal contribution made by GCD to the UK’s military objectives. That seems to me entirely appropriate. On Condition 2 (i) it was said: Looking at the evidence presented the decision maker is satisfied that the applicant did not make a substantive and positive contribution towards the achievement of the UK Government’s military objectives with respect to Afghanistan. In conclusion, the applicant has not metCondition 2 (i).

[120]It is for the executive to determine its policies and there was no challenge here to the lawfulness of the policy itself. It is open to the executive to establish and apply very broad criteria in deciding whether a claim is to be allowed. Such broad criteria may make it difficult for caseworkers in a department of state to apply the policy, but that is a matter for the executive and not, at least in the absence of a challenge to the policy itself, for the Court. Such broad criteria may mean that the reasons that can be provided are limited.

[121]However, as explained in LND1 by Lewis LJ at [65]-[67], it is necessary for the Defendant to give adequate reasons for an ARAP decision, so that the applicant can understand why his case did not satisfy the criteria, and whether he can judicially review the decision. Adequate reasons are required in part due to the nature and significance of the eligibility decision: an eligible person is at risk because of their work for or alongside the UK in Afghanistan and “...they and their families suffer risks to their personal safety, including risk to life, as a result”.

[122]Where such broad criteria are laid down, and where the explanations as to why they are not met are as bland as they were in respect of the national security objectives in these two cases, the possibility that there is some undisclosed guidance to caseworkers is likely to arise. Here the existence of such internal guidance emerged in the “CHD” case.

[123]At [84] in his judgment in CHD Saini J said this: Mr Straw KC argued that the Guidance raises issues about which a person affected by it could make informed or meaningful representations. That is clear, he argued, by the heavy reliance Mr Payne KC placed on it in his Skeleton Argument to justify the decision under challenge. I agree that there was substantial reliance which indicates that the FCDO Assessor considered the Guidance to be significant. Had it been necessary to decide this issue, I would have been minded to accept Mr Straw KC's arguments. While the Guidance may not be inconsistent with the ARAP Policy, it seems obvious that it raises issues about which a person affected by it could make informed or meaningful representations: it provides the "target" an applicant must aim for in much clearer and specific terms that the broad descriptions in the ARAP Policy. For example, the Guidance indicates an applicant must demonstrate that the HMG project documentation should identify one of the UK’s national security objectives. Unless they have this Guidance, an applicant cannot know they have to meet that particular requirement or make representations about it. This Guidance, like that in TPLI, appears to me to provide a level of detail which rule of law standards generally say demand publication, for the reasons given by Lord Dyson at [34] in Lumba at [34]. The ARAP Policy, particularly in relation to Condition 2, state very broad criteria and the executive must be open about how internally it will go about making decisions and identifying relevant criteria. The Defendant was right to effectively concede Ground 2.

[124]With respect, I agree with those observations.

[125]Ms Broadfoot argued that CHD could be distinguished because there the Claimant worked for an organisation that received funding from the FCDO (or its predecessors) and the question whether the work of that organisation contributed to the UK’s national security objectives was in dispute. That is not the case here, she argues. As Mr Samedi-Smith explains, this guidance was read by the FCDO caseworker who made the decision in one of the two cases but not used to produce their observations because there was nothing in it specific to security guards. Mr Montagu confirmed in his second statement that the MOD caseworkers in GSD’s case were aware of the Cat 4 Operational Guidance but did not apply it and that neither the FCDO nor the MOD caseworkers in CBC were aware of it.

[126]But in my judgment, none of that avails the Defendants. The criteria here are very broad. It is difficult for an applicant, and for that matter for the Court, to understand what is required to meet the criteria. The guidance undoubtedly raises “issues” about which a person affected by the guidance could make informed or meaningful representations. As Saini J said, it provides the target at which an applicant must aim, and it identifies that target in much clearer and more specific terms than the ARAP policy itself. The examples given in the Guidance, whilst not directly relevant to these Claimants’ cases, would be helpful to an applicant in illustrating the sort of evidence that is required to meet the tests.

[127]In the passage in Lumba v SSHD [2011]UKSC 12to which Saini J referred, Lord Dyson said this:34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements.

35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay

[1985] AC 318

, 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it.

[128]In my judgment, the fact that there was internal guidance, which on its face applied to Category 4 cases generally, and to which at least some of the case workers deciding Category 4 cases had access, but which was not made available to the Claimants, suggests a lack of transparency which is inconsistent with the proper exercise of executive power. In my view, the Cat 4 Operational Guidance should have been made available to all applicants under Category 4. But what matters here is that it should have been made available to these Claimants.

[129]The Guidance may or may not have been available to, or taken into account by, the decision makers in these cases. It may or may not have influenced them in their decision making. But had it been available to the Claimants and their advisers, it would have enabled them to construct their application and supporting submissions so as properly to address the considerations that were central to the decision making in question. A proper, lawful, decision-making process would have been transparent about what was relevant to the application and what an applicant had to establish in order to succeed. By failing to make known this Guidance, the Secretaries of State did not provide that transparency.

[130]Ms Broadfoot says there is nothing that either Claimant could say about the Guidance which would advance their case. She says that an on-the-hoof attempt by the Claimants’ advisers in the course of the hearing to draft what they might have said had they known of the Cat 4 Operational Guidance takes the matter no further forward. But that submission goes, not to this ground of challenge, but to the separate question whether leave should be refused under section 31(2A) of the Senior Courts Act 1981.

[131]As to that, the Court must refuse to grant relief on an application for judicial review, if it appears to the Court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

[132]In my judgment, it cannot be said that the application is highly likely to have failed in any event even if the Claimant and his advisers had known of this Guidance. With the benefit of the Guidance, and the sharper focus it provides as to what is necessary to meet the criteria, the Claimants’ advisers may have been able to put forward a much more convincing case. It is no answer to that to point to the fact that the hurried submissions from the Claimants’ solicitors might not have proved sufficient. I decline to refuse leave under s.31.

Conclusions

[133]Permission to apply for judicial review is granted to both Claimants.

[134]Ground 2, 3 and 4 are dismissed. Ground 1 is allowed. The decision refusing the ARAP application in the case of both Claimants is quashed and the matter is remitted to the Defendants for reconsideration in the light of this judgment and in the light of any further submissions the Claimants choose to make. Such submissions must be made within 28 days of the date on which this judgment is handed down.

[135]I will hear counsel on the terms of the order now required.