The process for determining whether former members of Afghan special forces who served alongside British troops in Afghanistan can be resettled to the UK was a “disaster area” so terrible it could be likened to a “crime scene”, the High Court has heard.
Thousands of applications for sanctuary from Afghans with credible links to special forces units CF333 and ATF444, known as the Triples, were rejected by the Ministry of Defence (MoD). Their pleas for help were rebuffed by the government despite these units being paid and trained by the British and the soldiers fighting alongside UK special forces (UKSF) in Afghanistan.
The MoD is undertaking a review of some 2,000 applications of Afghans linked to the units, after The Independent, along with Lighthouse Reports, Sky News and the BBC exposed how they were being denied help.
The court heard that the review of some 2,000 applications is only looking at cases that were referred by MoD caseworkers to UK special forces for input.
UK special forces had power over the UK sanctuary applications of Afghan allies amid an ongoing inquiry into potential war crimes in Afghanistan. Concerns have been raised by MPs about the potential conflict of interest of allowing UKSF a role in the resettlement process.
The inquiry has been investigating alleged war crimes committed on raids by UKSF between 2010 and 2013. Members of the UKSF have been accused of killing unarmed Afghans, planting weapons on them, falsifying reports and then covering up the crimes.
The High Court also heard that the MoD rejected the resettlement application of one senior commander from the Triples units, who was in the units at the time of a key incident being examined in the Afghan war inquiry.
A former senior member of the Triples, who is now in the UK, is bringing the legal challenge on behalf of commandos still in Afghanistan - challenging how the review has been carried out. The case is an application for judicial review which, if granted, would see the scheme further challenged in the courts.
Thomas de la Mare KC, for the claimant, told the court on Wednesday that there had been an effective blanket ban on approvals for these ex-servicemen who fought side-by-side with the British forces.
He told the court that decisions on whether to help these Afghans were “life and death decisions”, with Triples members or their families being murdered or tortured because of their support for UK forces.
Speaking about the decision-making within the MoD, he said: “The decision-making process prior to the review is almost a crime scene, it’s a disaster area.”
He added: “It’s almost as disastrous an area of decision-making as it’s possible to conceive.”
He argued that information about how the approvals were made should be made public “to restore public confidence and trust in the decision-making process”.
Mr de la Mare continued: “There is a widespread perception that there is an issue of conflict of interest or bias in this process. Those conflicts of interest were vented very clearly in January 2024, and they were a key part in the decision-making process.”
The court also heard that political pressure was put on MoD decision-makers to ‘sprint’ through resettlement cases. This prompted concerns about the quality of decision-making, which resulted in an internal review where “a pattern of blanket refusal of Triples claims referred to UKSF became obvious”, the court was told.
Flaws in the decision-making process included people being “inappropriately reliant on UKSF personnel”, particularly “during the ‘sprints’ that took place through the summer of 2023”, the court heard.
Caseworkers before the review lacked access to relevant records and were insufficiently experienced.
The court heard that then-minister for veterans affairs, Johnny Mercer, wrote to Oliver Dowden in January 2024 to raise concerns about how the process was being carried out. He highlighted that the role of UKSF personnel in the decision-making process was “deeply inappropriate” and represented a “significant conflict of interest”.
Mr de la Mare added that until the Triples review was announced in February 2024, a “vanishingly small” number of the special forces commandos had been approved for relocation to the UK.
He told the court that senior ministers had decided to conduct a review “on the basis that all credible claims of Triples membership were in scope”. However, Mr de la Mare said this had been narrowed to just re-examine cases where the Afghan applicant’s case had been referred to UK special forces.
The hearing is due to conclude on Friday, with a decision expected in writing at a later date.
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