Administrative Court quashes refusals to relocate prominent Afghan BBC journalists

Mr Justice Lane has quashed the Secretary of State for Defence’s refusal to relocate eight prominent Afghan BBC journalists and their families to the UK under the Afghan Relocations and Assistance Policy (“ARAP”).

The Claimants, all high-profile former BBC journalists, sought relocation under category 4 ARAP on the basis that their reporting work for the BBC supported and assisted the UK government’s military and national security objectives in Afghanistan and put them at high risk of being killed by the Taliban. All of the Claimants are in hiding for fear of their life.

To be eligible for ARAP under category 4 an applicant must have:

1. worked in Afghanistan alongside a UK government (“HMG”) department, in partnership with or closely supporting and assisting that department;

2. in the course of that work, the applicant made a substantive and positive contribution towards the achievement of the UK government’s military objectives or the UK government's national security objectives; and,

3. because of that work the applicant is or was at an elevated risk of targeted attacks, death or serious injury.

The Secretary of State for Defence (“SSD”) refused their applications in identical and unparticularised terms, providing that they did not meet the first criteria under category 4, namely that they did not “work alongside” or “closely support” HMG’s military and national security objectives. No reasons were given for this conclusion in the refusal decisions; the Claimants were simply told that they were ineligible. The Claimants brought these judicial review claims to challenge those refusals.

During the course of proceedings, the SSD stated that the Claimants were ineligible because the BBC was not a department of HMG and that independent journalists working for the BBC could never, in that capacity, meet the criteria under category 4.

Lane J held that this was a material misunderstanding of the relocations policy.

The ARAP policy was set up as a means of showing commitment and paying a debt of gratitude to those who worked for HMG and supported the UK armed forces’ mission in Afghanistan. Therefore, taking the policy as a whole and in the context of this purpose, Lane J held that the terms “working alongside” or “closely supporting” could be satisfied by independent journalists where:

1. there was a pattern of travelling and living (or being embedded) with British military units (§86);

2. they had undertaken “significant activities” which were closely aligned with the “democracy-building” activities of an HMG department (§86);

While the other requirements of category 4 must still be met, it was clear that the provision of intelligence was a way in which an individual could establish that they made a substantive and positive contribution (§87). Equally, informing the Afghan population of such things as the corruption of the Taliban could amount to having made a substantial and positive contribution towards the achievement of HMG objectives (§87). What category 4 required, was for SSD to examine the case-specific facts of an applicant (§88).

Therefore, the Defendants were wrong to conclude that the Claimants were ineligible by virtue of their work for a non-HMG department, the BBC (§92).

Lane J accepted the argument that the Taliban’s perception of the BBC as an arm of the British state was not relevant to the evaluation of what constituted “working alongside” or “closely supporting” HMG; however, this perception was relevant to the third condition and whether the work done alongside HMG put them at an elevated risk of attacks, death or serious injury (§98).

Lane J refused to reject relief on the basis that the outcome for the Claimants would not have been substantially different if the relevant conduct complained of had not occurred (s.31(2A) Senior Courts Act 1981) as there was more than fanciful prospect of a different outcome (§97).

In pre-action correspondence, the Claimants had requested disclosure of any unpublished policy relating to ARAP and how decisions ought to be made under that policy. The Defendants denied the existence of any such policy, published or unpublished, in both pre-action correspondence and in a Part 18 request response to the Claimants. However, ten days before the hearing, the Defendants disclosed that there had been a policy entitled the “Standard Operating Procedure” and accepted that this was a breach of the duty of candour. The contents of the SOP are set out in some detail in the judgment (§§38-45).

The Claimants settled an earlier judicial review to the delay in making a decision on their applications under ARAP for which the Defendants apologised and agreed to determine their applications within  prioritised timescales. Those decisions were the subject of Lane J’s judgment.

The Secretary of State will now reconsider the Claimants’ applications for relocation within 21 days.

Adam Straw KC, Catherine Meredith, and Donnchadh Greene represented the eight journalists alongside Erin Alcock and Leila Albin of Leigh Day. The case was referred through Advocate, who provided initial support to the Claimants with other pro bono partners.

The cases have been featured in the press including the BBC Radio 4 documentary “Abandoned in Afghanistan” available here.