Ministers have illegally “turned their backs” on former BBC journalists whose lives are in danger from the Taliban by refusing to move them from Afghanistan to Britain, 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 visas to the UK.
Adam Straw KC, acting for the plaintiffs 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 British government.
Straw said despite assurances from the then foreign secretary, Dominic Raab, that journalists would be protected, “the accused [the defence secretary, Ben Wallace, and the home secretary, Suella Braverman]has turned its back on the plaintiffs’.
He told the court that Wallace had initially given no reasons for the rejection of the claimants’ applications, under the Afghan Relocation and Assistance Policy (“Arap”), which was itself illegal as it made it impossible to challenge the reasons.
Reasons were eventually given stating that the BBC was independent of the government and that the plaintiffs did not identify a relevant sponsoring department. But Straw said these were both based on an error of law, with Arap’s eligibility criteria only requiring applicants to have “worked in Afghanistan alongside an HMG [his majesty’s government] department … supports that department closely”.
In written submissions, he said: “They [the claimants] worked alongside HMG, including alongside British troops and for organizations funded by HMG. Their work supported HMG’s objectives in Afghanistan, for example by providing it with information; develop popular support for the British mission; undermining support for the Taliban; and plays an important role in the development of free media and responsible democracy. As a result of their work in support of HMG, the plaintiffs and their families are at high risk of being killed by the Taliban.”
He said the plaintiffs worked for the BBC World Service, which receives around £100m in funding a year from the Foreign Office. He added that the Taliban considered the BBC to be part of the British government and that some of the journalists worked for other government projects, including one presenting the Afghan Women’s Hour.
The journalists, represented by Leigh Day, are also challenging the Home Secretary’s refusal to consider their visa applications under her discretionary powers, arguing that two Afghan BBC journalists with “no material differences [from them]” was granted so-called “leave outside the rules (LOTR)”.
David Blundell KC, for Wallace and Braverman, rejected the claimants’ arguments, saying 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 Defense “although they themselves saw it as their mission. They acted at all times independently of the Ministry of Defense (and for that matter any other manifestation of the British Government ).Fundamentally, and boiled down to the essentials, they acted at all times as independent journalists.”
Blundell said 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 regard 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.