Lost in Translation? Afghan Interpreters and Other Locally Employed Civilians Contents

Annex 1: The schemes in context

Comparisons with the Iraq scheme

UK Forces also employed a substantial number of interpreters and other LECs during their engagement in Iraq between 2003 and 2011. A scheme to support LECs was established in 2007, following a number of them being murdered as a direct result of their association with British forces.

Unlike the schemes available for Afghan LECs, support for Iraqi LECs came in the form of a single, unified scheme. The offer was, as the MoD explains, “open to all staff (not just interpreters) who met the scheme criteria” of having been in service on or after 8 August 2007; had 12 months or more continuous service; or were forced to resign due to exceptional circumstances”.67 Successful applicants were entitled to the following packages, all of which were administered by the Foreign and Commonwealth Office (FCO):

In a further contrast with the schemes provided for LECs in Afghanistan, the Iraqi scheme enabled qualifying staff to self-assess whether the risks they faced required relocation to the UK. Those who left their employment before 2005 were excluded altogether from the Iraqi scheme.69

Main distinctions between the Afghan and Iraq schemes

According to the MoD, as of 12 March 2018, 1,328 LECs and dependents had been relocated to the UK under the Iraqi scheme and around 1,150 LECs and dependents had relocated to the UK under the terms of the Afghan Redundancy Scheme.72

Why are the Iraqi and Afghan schemes different?

The differences in the arrangements for Iraqi and Afghan LECs were the subject of legal challenge by two former Afghan LECs, who argued that the differences amounted to discrimination on the grounds of nationality and thus contravened the Equality Act 2010. The High Court ruled, on the substantive point, that as the provisions of the Equality Act did not extend beyond the United Kingdom, there was no basis upon which the Afghan schemes could be ruled illegal. The Court of Appeal upheld this judgement.73

In its submissions to the Court, the Government justified the differences in the schemes on the basis of the different circumstances on the ground in Afghanistan compared to Iraq. It was and remains the Government’s view that the risk to life to former LECs in Afghanistan is considerably lower than that facing LECs in Iraq.74 According to Jonathan Iremonger:

In Iraq between 2005 and 2007, it was clear that a lot of our locally employed civilians were being specifically targeted by Shi’ite or Sunni groups. We do not have exact figures for how many were killed, but it was somewhere between 20 and 30 that we know about, including 17 working in police interpreting. In Afghanistan it has never been that level of threat.75

The principal reason why the Iraqi scheme was unified, rather than separated into redundancy and intimidation elements, was that the conditions on the ground in Iraq made it impossible to assess or verify claims of intimidation.76

The High Court concluded that, although the Iraqi scheme was clearly more advantageous than the Afghan schemes in terms of securing relocation to the UK, the Government was justified in operating different criteria given the different circumstances prevailing in the two countries. On that basis, even if the Equality Act had granted extra-territorial jurisdiction, a claim of discrimination on the grounds of nationality was not made out:

The claimants are, in my view, right to suggest that, in so far as the two schemes provide opportunities to relocate to the United Kingdom, the Iraqi one was more generous to locally employed staff than the Afghan. However, the reason why the schemes provide for different opportunities to relocate to the United Kingdom is not because of the nationality of those who provided services to HMG. It is because they did so in different countries, at different times, with different levels of threat and risk and in circumstances which generated different opportunities to investigate that risk. For that reason, I do not accept that there was direct discrimination on grounds of nationality. Furthermore, for both the purposes of direct and indirect discrimination there were material differences between the circumstances in the two countries and in the circumstances of locally employed staff in each.77

International comparisons

The MoD has described the support package as “more generous than that of other nations, as we are one of the few countries to accept local staff into the UK without requiring them to meet asylum criteria, and the only nation to have a permanent team based in Kabul to investigate claims of intimidation”.78 The Redundancy Scheme does not require LECs to demonstrate evidence of intimidation or persecution. The in-country training and education options offered by the scheme are also, according to the Jonathan Iremonger, “unique among NATO nations”.79 In August 2015, the MoD issued a ‘myth buster’ news release which sought to respond to a number of criticisms of the Afghan schemes, including the claims that the UK scheme compared unfavourably with those of other nations.80

The United States

The United States enacted a series of legislative proposals to allow LECs employed by the US to obtain Special Immigrant Visas (SIVs). There are three programmes overall:

There is a similar SIV programme for Afghans who were employed in Afghanistan by, or on behalf of, the US Government or by the International Security Assistance Force (ISAF). The programme was capped at 1,500 “principal aliens” annually for FY2009 through FY2013, with a provision to carry forward any unused numbers from one fiscal year to the next. The most recent statutory authority provided for the issuance of no more than 7,000 visas to principal applicants after 19 December 2014.

The eligibility criteria for these programmes varies slightly, but essentially requires at least one year’s service in an LEC role and an attestation of good and faithful service from the Chief of Mission of the department or agency where the LEC was employed. The requirement for service on the temporary Afghan scheme was raised to two years’ service for applications made after September 2015.

The SIV programme has been subject to criticism. The requirement of Chief of Mission attestation at the outset of the process resulted in a considerable bottleneck. Once eligible LECs are admitted to the scheme, the visa application process is slow and administratively onerous, usually requiring in-country interviews along with the submission of large quantities of documentation. Application numbers are capped and the two temporary schemes will conclude once all of the allocated visas have been issued.

To the end of FY2015, more than 37,000 individuals were granted special immigrant status under the three SIV programs for Iraqi and Afghan nationals. Principal applicants accounted for about 15,000 of the total; the rest were dependent spouses and children.81

In February 2017, Thomas Coghlan from The Times quoted to us the figure of 52,000 former LECs and dependents who had been given visas by the US, which is arrived at by adding the 2016 figures to the 37,000 total from 2015.82

The broader ISAF approach to LECs

Dr Sara de Jong, a Research Fellow at the Open University, has highlighted, in her oral and written evidence to the Committee, a lack of uniformity in the approach adopted by the different nations involved in ISAF and the successor mission Operation RESOLUTE SUPPORT. According to Dr de Jong:

While the NATO ISAF and RS missions were coordinated on an international level, there is no international coordination and harmonisation regarding the relocation and intimidation schemes for former [LECs]. On the contrary, relocation and protection/intimidation schemes are different from country to country and variations between the schemes depend on seemingly arbitrary circumstances, such as the political climate, the lobbying success of veterans and other advocates as well as ad hoc discretionary decisions.83

Such a lack of coordination, Dr de Jong has argued, is “quite striking” when one considers that “the Taliban would not necessarily discriminate between somebody who has worked for the Brits and someone who has worked for the French. The notion is that it is the West that is bad”.84

According to Dr de Jong, other differences between the UK and its ISAF partners include the fact that:

In addition to Dr de Jong’s points, it is worth noting that schemes like the UK’s also do not take account of polygamous marriage, which is not uncommon in Afghanistan. The UK does not recognise dual or multiple marriages, and LECs admitted to the UK with more than one spouse would have to choose which one and which related dependents to bring with them. Parents are also excluded from the Afghan schemes.

67 Letter from Rt Hon Mark Lancaster TD VR MP to the Chairman, dated 12 March 2018

68 Letter from Rt Hon Mark Lancaster TD VR MP to the Chairman, dated 12 March 2018

69 In 2015, two Afghan LECs, including Mr Hottak, challenged the Afghan schemes by way of judicial review on the basis that the differences between the Iraqi and Afghan schemes amounted to discrimination on the grounds of nationality, a protected characteristic under the Equality Act 2010. The judgements of the High Court and, in a subsequent case, the Court of Appeal provide useful discussions on the distinctions between the Afghan and Iraqi schemes: R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2015] EWHC 1953 (Admin); R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438

70 Q48 [HC 993]

71 R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2015] EWHC 1953 (Admin)

72 Letter from Rt Hon Mark Lancaster TD VR MP to the Chairman, dated 12 March 2018

73 R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2015] EWHC 1953 (Admin); R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438

74 R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2015] EWHC 1953 (Admin); R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438

75 Q104 [HC 933]

76 R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2015] EWHC 1953 (Admin); R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438

77 R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2015] EWHC 1953 (Admin), para 56 [Lord Justice Burnett]

78 Letter from Rt Hon Michael Fallon MP to the Chairman, dated 18 September 2015. Emphasis in original.

79 Q66 [HC 993]

80HMG Policy on Afghan Interpreters’, MoD News Release, 21 August 2015; Q66 [HC 993]

81 Congressional Research Service, Iraqi and Afghan Special Immigrant Visa Programs, 26 February 2016

82 Oral evidence taken on 7 February 2017, HC 993 (2016–17), Q15

83 LEC0001

84 Q15 [HC 572]

85 LEC0001

86 Letter from the Ambassador of the Federal Republic of Germany, Dr Peter Ammon to the Chairman, dated 23 November 2017

87 However, the Sulha network represents the majority of LECs who were resettled as part of the Redundancy Scheme (https://twitter.com/sulhanetwork).

88 LEC0001; Q36 [HC 572]

89 LEC0001; Q25 [HC 526]

Published: 26 May 2018