MP1 and others -v- Ministry of Defence (anonymity order)
Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order
Claim number: CO/4735/2022
In the High Court of Justice
King’s Bench Division
6 March 2023
The Honourable Mr Justice Ritchie
The King on the application of
Ministry of Defence
Before the Honourable Mr Justice Ritchie sitting at the Royal Courts of Justice, the Strand, London on 6 March 2023.
Following consideration of the documents lodged by the Claimants and the Acknowledgement of service and Grounds of Response (as amended) filed by the Defendant and the applications below.
UPON the Claimants needing permission to claim judicial review.
AND UPON the Claimants seeking anonymity and the Court granting the same in a separate order of this date.
AND UPON the Claimants seeking permission to amend their Grounds of Claim and to rely upon a Reply.
AND UPON the Defendant seeking permission to amend the Grounds of Response.
AND this being amended version of this order in which the name of the Defendant/s was corrected under the slip rule.
NOW IT IS ORDERED THAT:
Permission for JR
- The applications for permission to rely on amended grounds of claim and of resistance for the permission decision are both granted and permission to apply for judicial review is granted.
2. The judicial review claim is to be listed for hearing for 1.5 days before a High Court Judge. The parties shall provide a written time estimate within 7 days of service of this order if they disagree with the time estimate.
Case Management Directions
- Permission is granted to the Claimants to perfect their Grounds of Claim to be filed and served within 14 days of the date of this order.
- The Defendant and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within 28 days of the date of service of this Order, file and serve:
(a) Detailed Grounds for contesting the claim or supporting it on additional grounds, and
(b) any written evidence that is to be relied on. For the avoidance of doubt, a party who has filed and served Summary Grounds pursuant to CPR 54.8 may comply with (a) above by filing and serving a document which states that those Summary Grounds shall stand as the Detailed Grounds required by CPR 54.14.
- Permission to rely on a reply is refused. The amended Grounds of Claim shall contain the whole of the Claimants’ case.
- Any application by the Claimant to serve evidence in reply shall be filed and served within 14 days of the date on which the Defendant serves evidence pursuant to paragraph 4 above.
- The parties shall agree the contents of the hearing bundle and must file it with the Court not less than 2 weeks before the date of the hearing of the judicial review. An electronic version of the bundle shall be prepared and lodged in accordance with the Guidance on the Administrative Court website. The parties shall, if requested by the Court lodge 2 hard-copy versions of the hearing bundle.
- The Claimants must file and serve a Skeleton Argument not less than 7 days before the date of the hearing of the judicial review.
- The Defendant and any Interested Party must file and serve a Skeleton Argument not less than 7 days before the date of the hearing of the judicial review.
- The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website. The parties shall if requested by the Court, prepare a hard-copy version of the authorities bundle. The electronic version of the bundle and if requested, the hard copy version of the bundle, shall be lodged with the Court not less than 3 days before the date of the hearing of the judicial review.
- Costs reserved.
- The Secretary of State for the Home Department is not a listed Defendant. This should be resolved.
- The first Claimant is an Afghan Judge who was promoted to be the Chief Judge in Helmand province and tried Taliban fighters for terrorist offences in his court. Whilst he was fulfilling that role an attempt was made by the Taliban to assassinate him which failed.
- The Claimants are now all in hiding in Pakistan living in fear and in very difficult circumstances.
- The Claimant applied to the SSHD under the UK Afghan Relocation and Resettlement Policy. In particular under 276BB5 he needed to prove that he:
“(c) worked in Afghanistan alongside a UK government department, in partnership with or closely supporting and assisting that department;”
And “in the course of that employment or work or the provision of those services, made a substantive and positive contribution towards the achievement of:
(a) the UK government’s military objectives with respect to Afghanistan; or
(b) the UK government’s national security objectives with respect to Afghanistan (and for these purposes, the UK government’s national security objectives include counterterrorism, counter narcotics and anti-corruption objectives)
(iii) … because of that employment, that work or those services, the person:
(a) is or was at an elevated risk of targeted attacks; and
(b) is or was at high risk of death or serious injury;”
- By a decision dated March 2022 which was reviewed and repeated in October 2022 the SSHD decided that the 1st Claimant was not eligible, providing no explanation for the area or factor for which there was a lack of eligibility.
- In the disclosed documentation the Defendant noted an absence of evidence that the SSHD “worked alongside” a Government department.
- Protecting the UK and US armed forces in the fight against the Taliban is arguably “working alongside” the UK Government in my judgment.
8. To grant permission this Court needs to be satisfied that there is an arguable case that one or more of the grounds put forwards merits a full hearing. Put another way that one or more the the grounds has a realistic prospect of success. In addition I must consider whether any discretion to permit the ground/s to go forwards should be exercised for instance where an adequate alternative remedy exists or the claim is academic.
- Ground 1: no or no adequate reasons given. I consider this ground to have a realistic prospect of success. I take into account R (ALO) v SSHD  EWHC 2380 and R (CXZ) v SSHD and SSD  EWHC 284. Each case is fact specific.
- Ground 2: irrationality. I consider this ground to have a realistic prospect of success.
- Ground 3: failure to consider relevant evidence (Mr. Foxley’s evidence and C1’s updated witness statement). I consider this ground to have a realistic prospect of success.
- Ground 4: unfairness. I consider this ground to have a realistic prospect of success.