Defective decision-making resulted in hundreds of Afghan special forces who served with the British being wrongly rejected for sanctuary and abandoned to the Taliban, High Court judges have found.
Afghan commandos who served alongside the UK special forces (UKSF) in Afghanistan were left behind after the Taliban takeover in 2021, and received a blanket rejection from the Ministry of Defence (MoD) in respect of their applications to resettle in the UK. The Afghans are known as the Triples because of the names of their units, Commando Force 333 and Afghan Territorial Force 444.
Thousands of applications are being reviewed after the government acknowledged failures in how these were processed. Now the High Court has found that there were numerous defects in the way the cases were handled.
High Court judges have also ordered that the defence secretary John Healey publish a “transparent and accurate statement” about the scope of the MoD review of cases.
The review was announced after a joint investigation by The Independent, Sky News and Lighthouse Reports revealed that Triples commandos had been denied help and left to face torture and death.
In a judgment published on Tuesday, Lord Justice Dingemans and Ms Justice Farbey found that MoD caseworkers had failed to properly interpret the criteria required for UK resettlement – leading to the wrongful rejection of the Afghans’ applications.
Caseworkers, along with the liaison officer from the UK special forces who was assisting them, “were not given access to relevant records relating to payments” and so didn’t know that these Afghan fighters had received direct pay from the British.
MoD officials were also “overly reliant” on UKSF personnel for input and “placed too much weight on personal knowledge and judgement”, Lord Justice Dingemans found.
One UKSF liaison officer, who was tasked with investigating applicants’ links to the special forces, would refuse applications if the relevant UKSF unit failed to respond to his enquiries, the judgment found.
A push to “sprint” through applications in the summer of 2023 also led to “a lack of real consideration of the applications”, with many Afghan commandos receiving rejections during this time.
Around 5,000 Afghan citizens served with UK-partnered Triples units, which were set up and trained by the British, the judgment said.
The two judges have also ordered the MoD to correct the public record after the then minister for the armed forces James Heappey gave inaccurate information to parliament about the scope of the government’s review.
Announcing the MoD’s review of cases in February 2024, Mr Heappey told MPs it would cover “all eligibility decisions made for applications with credible claims of links to the Afghan specialist units”.
The government told the court that this was in fact incorrect, and that the review only covers applications that were forwarded on to a UKSF liaison officer for input.
Lord Justice Dingemans said that the government’s evidence showed that “more than a credible claim of links to the Afghan specialist units was needed to be in the scope of the review”. He added: “There had to have been a reference to the UK Special Forces or a reference from certain other government bodies and parties.”
He concluded that “given the critical importance of the review to those who have made applications” and the evidence that showed that “the Taliban have tortured and killed members of the Triples”, “it would be unlawful ... not to publish accurate information about the scope of the review”.
The judge has ordered that a “transparent and accurate statement about the scope of the Triples review” be published.
The High Court has also ruled that a redacted version of the government’s caseworker guidance be published so that Afghan applicants can understand what will qualify them for resettlement.
Around 600 Afghan allies, whose applications were among the initial 2,000 re-examined, have been granted approval to come to the UK.
On top of the 2,000 applications, up to 2,500 extra cases have been identified for review after the MoD realised the significance of rediscovered payroll data.
Daniel Carey, a partner at DPG, the law firm acting on behalf of the former Triples, said: “Our client had to fight very hard to obtain basic natural justice in this case: for his soldiers to be told whether they were included in the government review, the decisions in their cases, and the rules that were being applied.
“We are pleased that he has succeeded. Serious concerns had already been raised about the denial of Arap protection to thousands of Triples who served closely with UK special forces. It was vital that the review process itself was not hidden behind a veil of secrecy.”
