Process for allowing Afghan troops to UK ‘a disaster area' that could be likened to ‘a crime scene', court hears
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 raised 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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One of the downstream consequences of handing sweeping powers to judges to make political decisions is that they have now grown used to doing so. Lord Falconer remarked in 2003 that Labour's approach was 'to place power where it should be: increasingly not with politicians but with those best fitted in different ways to deploy it'. But as Richard Ekins KC – head of Policy Exchange's Judicial Power Project and professor of law at Oxford University – notes, judges are 'not well placed to govern, or to stand in judgment over Parliament's decisions'. Attorney General Richard Hermer's Bingham lecture in 2024 presented a fascinating glimpse into the culture that has taken root: the rule of law conceived not as a 'procedural and formal conception' but an approach that 'must afford adequate protection of fundamental human rights', and which places adherence to international law at the heart of the state, 'unequivocally' supporting the European Convention on Human Rights and its Court. These views are now at the heart of government, and the resulting paralysis is illustrative of what rule by lawyers looks like in practice. Hermer is an extreme example of the prevailing legal culture in Britain, but its effects are widely visible. As Prof Ekins puts it: 'In most cases, courts interpret the law in line with what Parliament intended. But there is a subset in which some judges will invoke principles to override Parliament's intentions, which is flatly out of line with our constitutional settlement.' These cases, in turn, tend to arise from three particularly problematic bodies of law: the human rights system, judicial review, and – at least prior to Brexit – our obligations to the European Union. These require judges to act almost as political creatures. In some startling cases, the courts appear to have directly contended with the will of Parliament, and emerged on top, or to expand their power without legislative authority. As Prof Ekins notes, the rise in judicial review – and the expansion in its scope – was largely the result of a series of court decisions, rather than legislative changes. This, in turn, caused Parliament to write explicit 'ouster clauses' into legislation, stating that certain matters were beyond the power of courts to review. But sometimes even these are not enough. Take the case of Privacy International, where the organisation brought a case over GCHQ's use of 'hacking'. There the Supreme Court decided that despite clear wording in the Regulation of Investigatory Powers Act, the relevant ouster clause had to be interpreted with the presumption that it would allow judicial review unless beyond any possible doubt. Moreover, one judge openly asserted that even in the event such a clause were written, it could well be ignored. This imperial attitude would seem to be a far greater threat to Britain's constitution than any criticism of judicial overreach. The pair of Gina Miller judgments (on the invocation of Article 50, and the prorogation of Parliament), the decision to quash the Attorney General's ministerial veto on the release of the then-Prince of Wales's letters to departments, and a host of others have made it appear that some members of our judiciary would be more at home in a kritarchy than a constitutional monarchy. Taking back control Britain's policymakers can barely move without a judge tripping them up. That there is a need for a judiciary is beyond dispute. To borrow from the economics of contract theory, laws are not 'complete'. Parliament cannot set out all the possible permutations and combinations of events that might fall under a law. It cannot, either, offer exhaustive definitions of each term deployed. The role of judges is in part to fill in these gaps: to decide which cases fall where, and process them accordingly. Sometimes they will err, or use their power to set policy as they believe it ought to be, rather than as it is. Some of this is down to Parliament failing to decide, passing the buck to the judges. Some of it is down to legislators failing to rebuff this judicial tendency. Some of it speaks to the sheer complexity of the legislative environment Westminster has created, where it is all too easy to trip on a previous law. But the result is clear.
