The government’s decision to refuse an Afghan former judge’s application to move to the UK was ‘reasonable and correct’, the High Court has found.
The judge, who is not named in the judgment of BYK, R (on the application of) v Secretary of State for Defence, was found to be ineligible under the Afghan Relocations and Assistance Policy (ARAP) scheme. He applied for judicial review of the decision.
Mrs Justice Farbey dismissed the claim, though she acknowledged the judge’s ‘plight…weighed heavily on me’. As part of his ARAP application, the judge said he had ‘experienced threats from armed insurgents and other criminal groups’ and had ‘fled from his home to protect himself. He feels too afraid to remain in Afghanistan’.
The judgment said the judge accepted he had not been directly employed by the UK government. In his ARAP application form, he said he dealt with civil cases relating to land, inheritance – particularly women’s inheritance – and debt, as well as the assignment of guardians to the family of military personnel killed in combat.
Noting that Afghan judges may be eligible for relocation under ARAP, the judge said ‘it is now well established that they are not automatically so: their eligibility depends on a case specific evaluation of the facts’. She continued: ‘The insuperable obstacle to these submissions is that there was no evidence before the defendant, and there is none before me, that the claimant worked alongside a United Kingdom government department. It follows that the defendant’s decision … was both reasonable and correct.’
‘In the absence of particulars of how the claimant may be said to have worked “alongside” a government department, the defendant was entitled to treat the claimant as having advanced no more than “mere assertions.”.’
The judgment said the secretary of state for defence had not been unreasonable to consider the nature of BYK’s work as a judge and the sort of cases with which he was involved. ‘Nothing in the defendant’s approach was flawed’, the judge concluded.
Tim Owen KC and Emma Daykin, instructed by Freemans Solicitors, appeared for BYK; Lord Murray, instructed by the Government Legal Department, appeared for the secretary of state for defence and for the interested party, the secretary of state for foreign, commonwealth and development affairs.
