Ministers have unlawfully “turned their back” on former BBC journalists whose lives are at risk from the Taliban by refusing to relocate them from Afghanistan to the UK, the high court has heard.
Eight Afghan journalists, who worked in high-profile roles for the BBC and other media agencies in the country from which British troops withdrew last year, are challenging the decision to deny them UK visas.
Adam Straw KC, acting for the claimants at Thursday’s hearing in London, said they and their families were at “high risk” of being killed because of their work, which supported the UK government.
Straw said despite assurances by the then foreign secretary, Dominic Raab, that journalists would be protected, “the defendants [the defence secretary, Ben Wallace, and the home secretary, Suella Braverman], have turned their back on the claimants”.
He told the court that Wallace had initially failed to provide reasons for the rejection of the claimants’ applications, under the Afghan relocations and assistance policy (“Arap”), which was in itself unlawful as it made it impossible to challenge the grounds.
Eventually reasons were provided which said that the BBC was independent of the government and the claimants did not identify a relevant sponsoring government department. But Straw said these were both based on an error of law, with the Arap eligibility criteria only requiring applicants to have “worked in Afghanistan alongside an HMG [his majesty’s government] department … closely supporting that department”.
In written submissions, he said: “They [the claimants] worked alongside HMG, including alongside British troops and for organisations funded by HMG. Their work closely supported HMG’s objectives in Afghanistan, for example by providing it with information; developing popular support for the British mission; undermining support for the Taliban; and playing an important role in the development of a free media and accountable democracy. As a result of their work in support of HMG, the claimants and their families are at high risk of being killed by the Taliban.”
He said the claimants worked for the BBC World Service, which receives about £100m funding a year from the Foreign Office. He added that the Taliban considered the BBC to be part of the UK government and that some of the journalists worked for other government projects, including one who presented Afghan Women’s Hour.
The journalists, represented by Leigh Day, are also challenging the home secretary’s refusal to consider their applications for visas under her discretionary powers, claiming that two Afghan BBC journalists with “no material differences [from them]” were granted so-called “leave outside the rules (LOTR)”.
Rejecting the claimants’ arguments, David Blundell KC, for Wallace and Braverman, said that journalists did not “per se” qualify for Arap. In written submissions, he said the claimants were not engaged to carry out work on behalf of the Ministry of Defence “even if they themselves saw that as their mission. They were at all times acting independently of the Ministry of Defence (and, for that matter, any other manifestation of the UK government). Crucially, and boiled down to the essentials, they were acting at all times as independent journalists.”
Blundell said that the reasoning in the decision letters was “adequate and rational” and that the Taliban’s perception of the relationship between the BBC and the government was “irrelevant”.
With respect to the home secretary, Blundell said the fundamental problem with the claimants’ argument was that she had “a discretion – and never an obligation – to grant LOTR”.
Judgment was reserved.
