R K and Others v Secretary of State for Defence Secretary of State for the Foreign and Commonwealth Office Affairs & HM Attorney General
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Burnett |
| Judgment Date | 19 September 2014 |
| Neutral Citation | [2014] EWHC 3023 (Admin) |
| Docket Number | Case No: CO/4215/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 September 2014 |
[2014] EWHC 3023 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Burnett
Case No: CO/4215/2014
Samantha Knights (instructed by Deighton Pierce Glynn) for the Claimants
Nicholas Moss (instructed by the Treasury Solicitor) for the Defendants
Hearing date 17 September 2014
The three claimants in these proceedings assert that they provided intelligence to British Forces in the years leading up to the beginning of 2013. Each suggests that as a result of his engagement with British Forces he is now at risk in Afghanistan from retributive attacks from the Taleban. The claimants have been granted anonymity in these proceedings and access to the court papers has been restricted to reduce the risk that their identities and whereabouts might be discovered.
This is their urgent application for interim relief against the defendants. The interim relief sought until the trial of this matter is as follows:—
"Pending the determination of this claim, the Defendant do take all steps necessary to provide the Claimants with secure accommodation in Afghanistan and associated living expenses."
The matter has come on quickly. The letter before claim was written on 24 July 2014. The proceedings were issued on 9 September and were considered by Hickinbottom J on 10 September. The anonymity orders were made (and have been confirmed by me) and the urgent application for interim relief was listed. There is as yet no acknowledgement of service. The defendants are unable to confirm or deny whether the claimants were providing intelligence in Afghanistan and have not yet responded to the factual basis upon which they advance their cases. The defendants are unable to confirm or deny in an open hearing whether there is in place any policy or procedure for assisting people who may have provided such help to the British Forces. Mr Moss, who appears for the defendants, has explained that there is closed material which the defendants would wish to deploy to resist the application for interim relief. For reasons which I will come to, he submits that interim relief should not issue in this case in any event, but were I not persuaded by that on the basis of currently available information, I should adjourn the application to enable the defendants to apply for a closed material procedure pursuant to section 6 of the Justice and Security Act 2013.
The parties were agreed that the application should be heard in open court in the ordinary way. Both Miss Knights for the claimant and Mr Moss took considerable trouble to ensure that nothing relating to the facts was mentioned in open court which might assist anyone in identifying the claimants or their whereabouts within Afghanistan. I will follow the same course. It is sufficient for the purposes of this judgment to indicate that all three claimants allege that they were recruited by British Forces in Afghanistan as covert human intelligence sources ("CHIS"). Their contact was with British personnel at the Provincial Reconstruction Team ["PRT"]. That ceased operation at the end of 2013. They provided information, in particular about insurgents. They were paid both with cash and in kind and provided with some equipment. Their relationships with personnel at the PRT came to an end in the early part of 2013 and in each case the claimants suggest that they worked for the British for some years before then. Each says that over the course of a number of years there have been threats of various sorts made to them by malign forces in Afghanistan, which have escalated in recent months. There is evidence of violent action against family members which is believed to be linked to former involvement with the British. The claimants wish to move to what they describe as "secure accommodation". That is not a technical description of the type of accommodation they suggest they require. It means moving to a location within Afghanistan where the risks of attack are comparatively low and into accommodation which provides some basic physical protection. Such accommodation is readily available on the ordinary rental market in various urban areas of the country. They each also suggest that the British Government should not only pay for that accommodation, which is more expensive than the type of accommodation each has been occupying, but should provide them with a stipend to enable them to live. The claimants suggest that in the course of their dealings with the PRT, promises of various sorts were made to the effect that they would be looked after should any threat materialise. One claimant says that he signed a contract with a British official by putting his thumb print to a document. If CHIS were engaged in Afghanistan, there is no dispute between the parties that if their identity and whereabouts became known in Afghanistan that would give rise to some risk.
K has moved to the town in which he wishes to live, but he says that he cannot afford to live there. He explains in his statement the reasons why. He says that he feels safe there. A too has moved from the place in which he was threatened and is living with relatives in the urban environment in which he wishes to settle, in circumstances which are inconvenient for them. B has moved around within Afghanistan. He says he has recently received a direct threat to his life which resulted in B returning to the urban location where he would wish to settle. His problem is that he is "out of money" and so has been forced to return to a location where he does not feel safe.
The defendants have no record of the claimants being locally employed staff ["LES"]. As one would expect, in a context where the services of a large number of local staff were engaged to support the long-term British presence in Afghanistan, employment records of all sorts were created. The defendants, through Mr Moss, have indicated that in addition to a formal contract of employment each LES had a personnel file. There would have been an offer letter, salary receipts and the like and a local staff handbook providing for detailed terms and conditions of employment, policies and information. The claimants do not, of course, suggest that they were overtly employed by the British authorities in the same way as large numbers of others were.
Outline of the Claim
The claim is advanced upon both public and private law grounds.
The public law claim has two aspects. The first is connected with the Government's policy for providing support for LES in Afghanistan. The second is made under the European Convention on Human Rights.
On 4 June 2013 the Secretary of State for Defence made a statement to Parliament about his policy to support those who had been employed by the British authorities in Afghanistan. There were three possibilities. First, a package of training and financial support for LES for up to five years and secondly, and alternatively, a financial severance package. Some local staff, for example interpreters, whose work had been especially dangerous, would be offered resettlement in the United Kingdom. That was the third possibility. To qualify for any of the packages on offer, an individual must have been employed directly by the United Kingdom Government, been made redundant after 19 December 2012 and been in the employment of the United Kingdom for at least 12 months. The statement also referred to a policy to deal with intimidation of LES. That was revised in July 2013. It was designed to provide support for staff and their families who were intimidated or put at risk as a result of employment by the British Government. It was to complement the redundancy package, provide consistency irrespective of which department someone was employed by, and provide confidence so that the best staff would remain in employment. It took account of the fact that the Afghan security forces should have primary responsibility for the security investigation, albeit that staff were recognised as having little confidence in their ability. The policy applies to staff employed directly by the British Government (not indirectly) but after five years away from British employment there would be an assumption that any risk was no longer due to that employment. An LES welfare team is located in Afghanistan to investigate claims of intimidation. They involve the Afghan authorities and the former staff member closely in those investigations. Depending upon the level of employment related risk an escalating level of support would be provided. It ranges from advice at one end of the spectrum to relocation within Afghanistan (and even to the United Kingdom) at the other. Where the welfare team judge that there is an immediate and serious threat, short-term arrangements for re-housing would be considered from the outset.
Miss Knights submitted that the claimants fall within the terms of these policies with the consequence that the defendants are obliged to consider their circumstances according to the policy. Alternatively, she submitted that if the claimants do not fall within the terms of the policy, as a matter of public law the defendants would be obliged to operate a parallel policy for the benefit of individuals who were engaged by the British authorities as CHIS. That is because there is no good reason to treat them differently. As I have already indicated,...
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K, A and B v The Secretary of State for Defence and Others
...review claim are dealt with in Burnett J's judgment on the interim relief claim and there is no need for me to repeat it here: see [2014] EWHC 3023 (Admin). In summary the claim is brought by three Afghan nationals who allege that they worked for the defendants for a number of years as cov......