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Secretary of State grants visa to Afghan interpreter; important point of law remains unresolved

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The Appellant in R (FMA & ors) v SSHD , a former interpreter for UK and US forces in Afghanistan, challenged the Secretary of State’s refusal to grant him and his young family visas under the Afghan Relocation and Assistance Programme (“ARAP”) on the basis that his presence in the UK would not be “conducive to the public good”. The Secretary of State’s policy on the “conducive” requirement provides that all decisions must be proportionate. The question for the Court of Appeal was whether, in making his proportionality assessment, the Secretary of State was required to take account of the nature and extent of the risks the Appellant and his family – or indeed any ARAP applicant – would face in Afghanistan if visas were refused. The Appellant argued that he was, as the “public good” is multi-faceted and includes the recognised good in repaying the “debt of gratitude” owed to those who risked their lives to support UK forces. The extent to which the grant of a visa would serve this aspect of the public good therefore fell to be assessed and weighed against any competing public interest considerations, such as potential security concerns.

Just a week before the appeal was due to be heard, the Secretary of State decided to grant the Appellant and his family visas and agreed to use his best endeavours to enable them to reach the UK.

Although this rendered the Appellant’s appeal academic, the underlying issue – which the Court of Appeal recognised as having significant wider public importance – remains live. It is liable to affect anyone whose ARAP application has been or may be refused on “conducive” grounds; indeed it may affect any visa applicant at all, where facets of the public good might weigh in favour of their presence in the UK as well as against it.

An extract from the agreed statement of reasons can be found below.

Chris Buttler KC and Eleanor Mitchell were involved in the case.

Extract from agreed statement of reasons:

3. On 7 August 2023, Andrews LJ granted permission to appeal. The sole ground of appeal was that the Respondent had misconstrued the Conducive Policy. Both Swift J and Andrews LJ recognised that the issue in the appeal was of wider public importance.

4. In summary, the Appellants’ argument was that:

4.1. In the context of the Conducive Policy, “proportionality” required the Respondent to weigh indicators that entry clearance was not in the public interest against indicators that entry clearance was in the public interest.

4.2. There is a public interest in the UK honouring its “debt of gratitude” to those who helped the UK mission in Afghanistan.

4.3. That public interest is reflected in the ARAP eligibility rules, which seek to identify those at risk of harm. However, the public interest in honouring the debt of gratitude will be even greater if an individual faces a higher risk to life than that required for eligibility. Under the Conducive Policy, properly interpreted, this falls to be weighed by the Respondent against any indicators that entry clearance would not be in the public interest in order to arrive at a proportionate decision.

4.4. As a result, the Respondent erred in not assessing the extent of the risk to the Appellants’ lives or weighing it as part of the “proportionality” requirement of the Conducive Policy.

5. The Respondent contested the appeal and denied that he was required to assess the extent of the risks to the Appellants’ lives or weigh this as part of the “proportionality” requirement of the Conducive Policy.

6. On 7 December 2023, the Respondent decided to grant the Appellants entry clearance. This rendered the appeal academic. In those circumstances, the Appellants have agreed to withdraw the appeal on the terms reflected in the Court’s order.