Background
MXR is an Afghan national whose brother QR worked alongside British military forces in Afghanistan. When the Taliban took control of Kabul in August 2021, QR was already in the United Kingdom. MXR remained in Afghanistan, where he was detained and tortured by the Taliban, suffering a fractured skull. QR applied under the Afghan Relocations and Assistance Policy (ARAP) in February 2022, seeking relocation for 14 family members including MXR. MXR’s initial application was refused in April 2023 as not meeting dependency requirements. After prolonged delays and procedural failures, MXR relocated to Pakistan and then to the United States, where he obtained a Green Card and lawful permanent resident status. On 27 February 2026, the Ministry of Defence again refused his application, holding that as a US resident, he was no longer at elevated risk of Taliban targeting and therefore ineligible under ARAP 13.3(a).
MXR challenged this decision on four grounds: (1) ARAP 13.3(a) should assess hypothetical risk if he were in Afghanistan, not actual current risk; (2) eligibility should be determined as of his first application, not the review; (3) the defendant should have exercised discretion in his favour; and (4) the decision was irrationally inconsistent with the decision to grant ARAP protection to his brother LR, who was in the United Kingdom.
The Court’s Holding
Justice Johnson dismissed all four grounds. On the interpretation of ARAP 13.3(a), the court held that the rule requires assessment of whether an applicant IS actually at elevated risk, taking into account all actual circumstances including current location and the possibility of removal to Afghanistan. The rule does not require a hypothetical assessment of whether the applicant would be at risk if located in Afghanistan. The plain wording uses present tense (“must be”), and where the ARAP rules intended location-specific limitations, they explicitly state “in Afghanistan.” The purpose of ARAP is to protect those who ARE at risk, not those who would be at risk in different circumstances. Removing the requirement that applications be made from Afghanistan addressed where applications could be submitted, not how risk should be assessed.
On timing, the court held that a review is a merits-based reconsideration requiring assessment of current circumstances, not historical circumstances. Allowing new evidence in reviews confirms this interpretation. The court rejected the discretion argument, finding that ARAP contains no express provision for residual discretion outside the stated criteria, though such applications might theoretically be made outside the policy framework. On the inconsistency claim, the court found the defendant’s approach rational because LR’s eligibility decision was “likely incorrect”—LR was an asylum seeker in the United Kingdom with no realistic prospect of removal to Afghanistan, so he too was not at elevated risk. The defendant was entitled to avoid repeating that error when reconsidering MXR’s case.
Key Takeaways
- ARAP protection turns on actual current risk to the applicant, assessed in light of all circumstances including current location and risk of removal to Afghanistan, not hypothetical risk if the applicant were in Afghanistan.
- A review decision under ARAP must assess the applicant’s present circumstances, not revert to conditions at the time of an earlier decision, consistent with the review process permitting new evidence.
- The High Court will not imply a residual discretion into ARAP beyond its express terms, though pre-rule applications for assistance outside the policy framework remain theoretically possible.
- Where an earlier decision under ARAP was likely incorrect on its own terms (as with LR), the defendant may rationally distinguish a claimant’s case to avoid repeating the error, without being bound by precedent of its own mistake.
Why It Matters
This decision establishes that ARAP protection is strictly tied to demonstrable current risk, not hypothetical risk that might materialize if circumstances changed. For Afghan nationals who have successfully relocated to safe third countries, this holding significantly limits ARAP eligibility regardless of the danger they would face if returned to Afghanistan. The decision reinforces that procedural delay and unfairness in the original decision-making process, while potentially remediable through discretion, do not automatically override the substantive eligibility criteria as later applied. The court’s willingness to find that an earlier government decision was “likely incorrect” but still binding on the applicant (absent grounds to quash it independently) illustrates the limits of challenging inconsistent state action in the ARAP context.