Two former interpreters who risked their lives working for the British army in Afghanistan have lost a High Court challenge to a government assistance scheme they say unlawfully discriminates against them.
The two men – Afghans regarded by the Taliban as “infidel spies” – applied for judicial review at the court.
They argued that the scheme was unfair and unlawful because, with certain exceptions, assistance is not available under the scheme to staff who left British employment before December 2012.
Their lawyers contended they were being discriminated against and treated differently to Iraqi interpreters who were given assistance when their lives became endangered through assisting the British in the Iraq war.
They wanted the Afghan scheme to cover “locally engaged staff” employed by the Ministry of Defence and the Foreign Office in Afghanistan before the 2012 cut off date.
Lord Justice Burnett and Mr Justice Irwin were asked to declare that the deadline was unfair and made the scheme discriminatory under the Equality Act 2010 and breached common law and the government’s public sector equality duty.
But the judges ruled the “territorial reach” of 2010 act “is not such as to include the claimants’ circumstances”.
The judges also ruled that the common law claim “has no substance”.
There had been a government failure to have regard to relevant equality duty matters under the 2010 act when formulating the Afghan assistance scheme, but it was a procedural issue and did not entitle the Afghans to any relief, they declared.
However, Burnett said permission to appeal to the court of appeal would be granted because of the “novelty” of the issues relating to discrimination the case raised.
The ruling was a defeat for a man referred to as AL, who, the court was told at a hearing in May, remains in Afghanistan and is in constant danger and facing Taliban death threats.
The other claimant, Mohammed Rafi Hottak, a father of three, has already claimed asylum in the UK but has been unable to benefit from the assistance scheme.
The legal challenge was against the Ministry of Defence and Foreign and Commonwealth Office.
Hottak, who fled Afghanistan in 2011 after receiving death threats, said of the MoD and FCO: “I risked bombs and bullets working for them. The people who I considered as friends and family, they are fighting me for my rights and the rights of my friends in Afghanistan.”
The scheme under challenge dates back to the announcement of the drawdown of UK forces from Afghanistan in 2012.
It was introduced to aid interpreters and other local staff deemed to be engaged in “dangerous and challenging roles” with the British, who had been in post on December 19 2012 and had served more than 12 months.
With certain exceptions, staff whose employment ended before that date, either voluntarily or for disciplinary reasons, were not eligible.
Rosa Curling, a lawyer at solicitors Leigh Day who is representing the Afghans, said they would seek to appeal.
She said: “The court clearly recognised that the British forces operating in Afghanistan could not have functioned without the assistance of locally employed staff, including men like our clients, former interpreters who exposed themselves to considerable personal risk.
“The Taliban have exacted revenge against these locally employed staff, who have been subject to intimidation. Some have been attacked and killed. Yet despite this, a scheme equitable to the Iraqi scheme is not available to those Afghans to who we owe a great debt of honour.
“We are disappointed by the decision and the failure to recognise this debt and we will be seeking to appeal the decision.”