high court judgment template · web viewthey advised him to pay no attention, or not to answer...

Neutral Citation Number: [2019] EWHC 1757 (Admin)

Case No: CO/4215/2014IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT

Royal Courts of JusticeStrand, London, WC2A 2LL

Date: 17 July 2019 Before:

THE HON. MR JUSTICE OUSELEY - - - - - - - - - - - - - - - - - - - - -

Between:

K, A and B Claimants - and -

(1) The Secretary of State for Defence(2) The Secretary of State for Foreign and

Commonwealth Affairs

Defendants

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Tim Owen QC and Samantha Knights QC (instructed by Deighton Pierce Glynn solicitors) for the Claimants

Kieron Beal QC and Zubair Ahmad QC (instructed by the Special Advocates Support Office) for the Claimant K

Martin Goudie QC and Aaron Watkins (instructed by the Special Advocates Support Office) for the Claimant A

Tom Forster QC and Rachel Toney (instructed by the Special Advocates Support Office) for the Claimant B

Jonathan Glasson QC, Ben Watson and Amy Sander (instructed by the Government Legal Department) for the Defendants

Hearing dates: 4-5 October 2018(Further written evidence and submissions 15 March -24 May 2019)

- - - - - - - - - - - - - - - - - - - - -

APPROVED JUDGMENT

High Court Unapproved Judgment:No permission is granted to copy or use in court

K, A, B v SSHD

Mr Justice Ouseley:

1. The three Claimants in these judicial review proceedings are Afghan nationals who claim that they had worked for the Defendants in Afghanistan as covert human intelligence sources or CHIS. In addition, K and B say that they carried out additional work for the Defendants which was in part covert and in part overt, including trying to persuade a member of the Taliban to commit himself to the peace process. They each claim that their work as a CHIS has caused their lives to be threatened by the Taliban, and that, in order to protect themselves, they have had to move from where they lived, and now have only meagre means of sustaining themselves and their families in impoverished circumstances. Their personal circumstances have changed in varying degrees over the period of the litigation. They claim that the Defendants ought to provide financial assistance to help them to protect themselves from the threats, to deal with their consequences, and by way of compensation. They do not seek relocation to the UK, in the claims, although A now would like to be relocated here. The Defendants neither confirmed nor denied, pursuant to their NCND policy, whether any of them had or had not been CHIS. They denied that their published policy relating to locally engaged civilians applied to the Claimants.

2. The claim was lodged in September 2014; amended Grounds of Review were lodged on 3 November 2015. Re-amended Grounds of Review were lodged on 10 September 2018, and I gave permission for the amendments to be made at the start of the substantive hearing on 4 October 2018. There was no objection.

3. The grounds of claim, as re-amended, in summary, are that (1) the Defendants had failed to apply or had misapplied relevant disclosed or undisclosed policies for locally employed staff/CHIS so as to provide them with appropriate protection and compensation following termination of their employment, or if they fell outside those policies, the policies were being applied too rigidly; (2) the Defendants owed and breached a common law duty of protection commensurate with the ECHR duties of protection under Articles 2, 3 and 8 ECHR; this was introduced by amendment in November 2015; the claim of a duty of protection made directly under those ECHR Articles was abandoned in the re-amended Grounds; (3) the risk assessments carried out by the Defendants in 2015, and their updated versions, were irrational and made without sufficient inquiry; this ground was introduced in the re-amended Grounds although it cannot have come as a surprise in view of the focus of the Defendants on those assessments at earlier stages.

4. I draw attention to the way in which the claims have been formulated because only part of the case is before me. Grounds 4-6 concern claims for breach of contract of employment, negligence through failure to take reasonable care to protect the Claimants from the Taliban, and for misrepresentation arising out of what the Claimants say they were told by the Defendants about support and relocation in the event of threats to them and their families. By consent of the parties, Cranston J, in an order dated 16 January 2015, stayed those claims until after the conclusion of the public law proceedings. The claim for just satisfaction pursuant to s8 Human Rights Act 1998 appears to have been disposed of by the abandonment of the direct claims under the ECHR.

5. There is an issue over how far the common law protection claim is before me. I shall return to this shortly, but I consider that it, admittedly a tortious common law claim,

Draft 15 May 2023 09:46


K, A, B v SSHD

was stayed in the order of Cranston J. Mr Owen QC for the Claimants submitted that it nonetheless had a role to play in my judgment about how the risk assessments were carried out and risks were evaluated.

The development of the litigation

6. The initial steps in the proceedings are set out in the judgment of the Divisional Court, Simon LJ and Ouseley J, on 27 May 2016, [2016] EWHC 1261 (Admin). At this stage, I note the following stages in the development of the litigation:

(1) the three Claimants lodged statements dated 9 September 2014 with the Claim Form;

(2) the Summary Grounds of Defence contended that permission to apply for judicial review should be refused on the hypothesis, which was neither confirmed or denied, that the Claimants were CHIS;

(3) permission was granted on appeal by Lewison LJ, on 8 May 2015, with an expedited hearing for July 2015;

(4) on 12 June 2015, shortly before service of the Detailed Grounds of Defence, the Government Legal Department, GLD, wrote to the Claimants’ solicitors, Deighton Pierce Glynn, DPG, maintaining NCND, but saying that the Defendants had “decided to conduct an assessment of each of the Claimant’s circumstances (and in particular their claims that there are risks to their security in Afghanistan) and, in the light of that, [to decide] whether it would be appropriate to take any further action with respect to them.” All relevant circumstances would be considered, including their background, current safety and welfare, the nature of any current and foreseeable threat (including source and cause), the extent of protection available through Afghan structures and the limitations of the operating environment in Afghanistan, particularly following the drawdown of military operations there. The Claimants were invited to submit all the information they wished to present for the Defendants’ consideration;

(5) this led to a second round of witness statements from the Claimants, in mid-July 2015, with factual Annexes from K and B containing more detail and a summary from A, followed by A’s detail in October 2015;

(6) on 6 July 2015, Mitting J had directed that the proceedings were proceedings in which a closed material application could be made under s6 Justice and Security Act 2013. Special Advocates were appointed. The Defendants wished to rely on material which would not be disclosed to the Claimants;

(7) the Defendants served their assessments of the Claimants entirely in closed in August 2015;

(8) on 8 September 2015, Mitting J permitted the Defendants to withhold sensitive material from the Claimants; that amounted to all the material

Draft 15 May 2023 09:46


K, A, B v SSHD

then served in closed. However, he also ordered that a series of questions be sent to the Claimants “which would give them the opportunity to provide further evidence or comment supporting their claims in relation to aspects which were disputed.” I take that from [13] of the 27 May 2016 judgment. Those questions, which were common to each Claimant, covered: presenting calendar dates rather than relating them to events, full names and other versions or alternative names and other identifying detail, family members’ ages and position in the family relationship, describing locations in detail, providing such independent evidence of events as was possible, such as death certificates, and if differences arose between any new information and the accounts already presented, they should be explained;

(9) each Claimant provided further material in response by way of third witness statements which led to three further assessments from the Defendants in witness statements dated 10 November 2015, again entirely in closed, maintaining the earlier assessments.

7. The substantive hearing had already been adjourned, from July 2015 to November 2015, to enable disclosure issues to be considered by Mitting J. Notwithstanding two hearings before him, it became clear in the immediate run-up to the substantive Divisional Court hearing fixed for 17-20 November that neither the Claimants nor the Special Advocates regarded the disclosure issues as resolved. The new issue raised was whether s14 Justice and Security Act 2013 applied, notwithstanding that Mitting J had found that no further disclosure could be given without damage to national security. S14 provides that restrictions on disclosure damaging to national security do not apply where non-disclosure would lead to a breach of Article 6 ECHR. At the close of the hearing on 17/18 November, the Defendants informed the Claimants that they took the view that the Claimants were not “telling the truth in relation to material and core parts of their claim [and] are apparently deliberately putting forward false evidence in order to secure the financial advantage and/or internal relocation sought.” The Divisional Court concluded that further disclosure was not required to avoid breaching Article 6.

8. On 23 November 2016, the Court of Appeal, [2016] EWCA Civ 1149, allowed the Claimants’ appeal from the Divisional Court’s decision on Article 6, and accordingly the question of further disclosure had to be considered. The same Divisional Court concluded on 26 April 2017 that the approach to disclosure in AF (No. 3) v SSHD [2010] 2 AC 269, [2009] UKHL 28 did not apply; and set out, in [22-28], the approach it would apply when considering further disclosure in the individual cases. The question of an appeal against that decision was to be left in abeyance until after the decisions on disclosure in the individual cases, since there might be no worthwhile basis for an appeal in the light of what was actually disclosed. On 17 May 2017, the Defendants served open statements related to each Claimant, which identified briefly some areas where the Claimants’ accounts were thought not to be credible or internally consistent.

9. There was then a closed disclosure hearing on 31 October 2017, before me, which led to a closed judgment on 16 November 2017, and in the upshot a further gist was provided to K on 12 December 2017, and applying the same approach, further gists were provided to B and A in June 2018. The Claimants provided responses to these

Draft 15 May 2023 09:46


K, A, B v SSHD

further gists on 20 July 2018. The Defendants provided open and closed replies on 21 August 2018. During this period, each Claimant became separately represented by Special Advocates. In September 2018, the Defendants provided open replies to the Claimants’ requests for further information, and an amended open gist in respect of K.

The evolution of the evidence

10. The evolution of the evidence requires care. This is not a trial in which I have the task of making primary findings of fact, and granting or refusing remedies on the basis of the facts as I find them to be. The proceedings remain judicial review proceedings, however closely the decisions of the Defendants have to be scrutinised. The further evidence, after the initial decisions, with the passage of time and in response to disclosure, does not alter that. They warrant further assessments which they have received, and in which the decision was made to maintain the earlier decision, although in places the reasoning has moved on in the light of further information, and the passage of time. Although those later decisions obviously postdate the bringing of these claims, and there have been no formal amendments, the focus of my judgment is on a review of the decisions in their final form, seen as a whole.

11. In addition to the evidence of the Claimants themselves, they relied on statements from their solicitors on various issues which they contended affected how I should approach the evidence; there was also third party and expert evidence dealing with security and living conditions and costs in Afghanistan, the Taliban and risks to those believed to be informants or to have co-operated with ISAF, the International Security Assistance Force, of which the British armed forces formed part. Dr Kristian Gustafson, Senior Lecturer at Brunel University Centre for Intelligence and Security Studies provided two open witness statements, as an expert, and one in closed, having had the closed evidence made available to him.

The approach to the issues

12. Ms Clare Cameron, Head of Operational Legal and Intelligence Policy within the Operations Directorate of the Ministry of Defence, said this in her open witness statement dated 24 June 2015:

“In considering what further action (if any) should be taken in relation to each Claimant, the nature and extent of the response will depend, inevitably, on the assessment in each case. As previously acknowledged, though, the MoD accepts that Afghan nationals who are believed to have worked for ISAF, or are believed to have supplied intelligence to ISAF, are thought of as attractive targets by insurgent groups who may view such conduct as justifying violent, in some cases fatal reprisals. The precise level of the risk in any individual case ultimately depends, however, upon the individual’s circumstances. If further action is considered appropriate in any of the Claimant’s cases then, in general terms, consideration will be given in the first instance to the provisions of advice and/or financial support. If that is assessed to be inadequate, then consideration will be given to resettlement within Afghanistan. In the event that such resettlement is considered entirely implausible, then the possibility of resettlement in a friendly neighbouring country may be considered. Resettlement of any of the Claimants in the UK is unlikely to be considered possible in any foreseeable circumstance.”

Draft 15 May 2023 09:46


K, A, B v SSHD

13. This should be read with the letter of 12 June 2015 from GLD to DPG, referred to in [6(4)] above.

The protection claim

14. This claim was analysed at some length by Mr Owen QC in the Claimants’ Skeleton Argument before me. Mr Owen accepted that the common law duty was a tortious duty: in effect the duty he asserted was co-terminous with the ECHR duty under Article 2 or 3 as analysed in Osman v UK (1998) 29 EHRR 245; in short it was a duty to take reasonable steps to prevent a reasonably foreseeable loss of life or serious harm. I am not concerned at the moment to deal with the differences between the ECHR duties and the common law duties of care as considered in Swinney v Chief Constable of Northumbria Police Force [1997] QB 464, and as found to exist in the same action at (1999) 11 Admin 811 in relation to a duty on the police to take reasonable care to avoid unnecessary public disclosure of confidential information given to the police; nor am I concerned presently with any differences between the ECHR duties and the duty of care towards an informer as set out in An Informer v A Chief Constable [2012] EWCA Civ 197; [2013] QB 579, whether in scope, foreseeability, balance or causation, nor with any legal policy arguments over the extent to which such duties of care may be fair, just and reasonable. I am concerned with whether this claim is also stayed. In my view it is: the claim is a tortious one; it was one of the tortious claims stayed; it was seen in that way by the Court of Appeal in its description of the stayed proceedings in its judgment on the relevance of Article 6 ECHR to the disclosure process; [2016] EWCA Civ 1149, at [3].

15. Mr Owen and Mr Glasson QC for the Defendants are not, in my judgment, very far apart on the role or effect of a common law duty of care in the assessment of risk, even though such a common law claim is not before me. Mr Owen submits that the duty can inform the evaluation of risks; but that would require a judgment on the nature and extent of such a common law duty, which is beyond the scope of this judgment. Mr Glasson said that it was in any event irrelevant in the light of the risk assessments which the Defendants had carried out, and which covered all that the Claimants could obtain through such a common law claim. However, there is no purpose to an assessment of risk unless it considers the cause, nature and degree of the risk alleged and what measures can and should be taken, if any, to reduce or eliminate them. I have considered those aspects of the assessments.

16. I accept that the question of whether the Defendants’ policy “Intimidation of Locally Employed Staff: Policy Framework” 2010 or July 2013 is applicable to these Claimants, is not for this court but depends on their private law claim to have been employees to whom it applied. That claim has been stayed. I do however note certain aspects of the July 2013 Policy, in view of the way it was deployed by the Claimants. First, it emphasises the need for staff “to be able to demonstrate that there is a clear link between their employment with HMG and the intimidation they are facing”; (my italics). Second, the claims investigators may not be able to verify every reported claim of intimidation but will need to make judgments on inconclusive evidence.

17. Third, where there was evidence of some employment-related risk “to the staff member or family” above and beyond the general threat level, this “Green” level could lead to an investigation of its credibility, liaison with local security and advice on modest security measures, including changing work location or mobile phone

Draft 15 May 2023 09:46


K, A, B v SSHD

numbers, and basic monitoring. “Amber” level arose where those “Green” measures had been taken, and the team assessed that the evidence showed a continuing real risk to the safety of the staff member or family, which could lead to special paid leave, temporary work elsewhere or family relocation. “Red” level arose where “Amber” measures had been tried or were judged to be insufficient and the threat, linked to their employment, was significant or imminent or had been carried out.

18. Fourth, funds for relocation within Afghanistan, but which could be used to relocate outside, would be considered. Up to £15,000 funding would be considered. “Red” is the threat level asserted by the Claimants, though not in so many words, at least judged by the support sought for relocation – and more.

19. Fifth, the 2015 Guidance for staff facing intimidation threats as a result of their work with the UK Government told them how to make a claim. The Investigation Unit would make an initial assessment and take steps to ensure their safety if the threat were “immediate and life threatening”. A more detailed investigation would follow. The member of staff would be interviewed in person in Kabul, or by telephone, “You will be asked to provide evidence of the intimidation and its connection with your service with the UK government.” (my italics). This evidence could include:

“(1) written/mobile phone evidence of a threat; it is helpful if you can give the IIU the actual mobile phone on which any threatening call or text was received, and any threatening letters you have received as these are important evidence and you should not delete or destroy them;

(2) evidence of an injury and its cause;

(3) supporting evidence from a police investigation or medical treatment;

(4) contact details for any witnesses to the intimidation; the IIU may want to interview any witnesses;

(5) any other evidence you may have.”

20. Sixth, the Afghan National Police, ANP, or National Directorate of Security, NDS, would only be contacted with the permission of the member of staff. Interim protective measures would be taken to help the person to stay safe while the investigation was completed.

21. Seventh, the Guidance stated that it expected the intimidation threat to recede over time after “leaving our employment”. If there was a gap of more than five years before a claim was brought after leaving employment, there would be a higher onus on the Claimant to prove the link to their former employment with the UK government.

22. The support measures which could be taken included advice on security precautions, time off work with support, funded relocation within Afghanistan, and only in the most serious cases, as the only and last resort in the face of a significant and imminent threat to safety, relocation to the UK.

The Claimants’ evidence: two common factors

Draft 15 May 2023 09:46


K, A, B v SSHD

23. I have set out the details of the three individual claims in separate confidential appendices, with the aim that each should be read and understood on their own, and that there should be restricted and controlled access to each. The parties are invited to agree suitable orders to give effect to that aim.

24. There are two common factors which I deal with here. The first concerns the difficulties which the Claimants experienced in producing their evidence which was part of their common explanations for some discrepancies in their statements and responses to the more detailed gists of 2017 and 2018. I take what K said about his third witness statement as an example. He explained the difficulties of providing statements because of the problem of communication with his lawyers. There were dangers in doing so over the phone, and problems of interpretation, line or signal cut out and redialling, and then keeping track over that time of what was said. It was difficult to meet with the lawyers and there were still interpretation problems. Dates were not used; birthdays were often unknown and in any event were not celebrated. The timing of events was judged by reference to other events around them. So, the accuracy sought by the Defendants could not be achieved.

25. Mr Carey, the DPG solicitor acting in this case, described in his first witness statement of 9 September 2014, how the first statements were taken, over the phone to Helmand with an interpreter, obtaining an initial account over four hours and more with each Claimant. Reception was patchy and could easily be lost. The statements were read back to each Claimant separately over the telephone. Mr Hundt, another DPG solicitor who took over the case for a while, explained in his first statement how the second statements were obtained, by separate interviews in India. They tried to provide the level of detail of times and dates requested by the Defendants, but it became clear to Mr Hundt, after many hours of endeavour, that the Claimants could not provide the information in that way. This was partly because of the different calendar, but more because they did not keep diaries, were poorly educated, were unable to date events or to do so by reference to the date of another event, and were unable to provide reliable estimates of how long one event had occurred after another, when talking of how long ago events occurred. They did not remember events by date. He had tried various techniques to narrow down dates to a year or so by relating it to some well-known external event, and then by using the seasons, such as harvest time or religious festivals as an approximate guide. The ordering of events was still difficult, and accurate chronologies were impossible; they were approximations at best. However, Mr Hundt concluded that they could remember many of the key details of major events.

26. The Claimants, in their responses to the gists, also complained that they had not had enough information to enable them to respond fairly or fully, and that the Defendants had not interviewed them about the factors which caused them not to accept their credibility. I take K again as a useful example. He thought it unfair that his accuracy and credibility could be attacked without, for the most part, disclosure of the basis for those attacks. He said that if he did not know the reason for the criticism, he could not provide an effective response. He also thought it unfair for the Defendants to refuse to assist him without providing reasons which he thought he could meaningfully respond to. He wanted criticisms put to him directly in interview so he could respond but that was declined. He had always tried to put forward accurate evidence, but accepted that there might be some inaccuracies for a variety of reasons:

Draft 15 May 2023 09:46


K, A, B v SSHD

he was illiterate, the natural effects of time and memory, the taking of evidence in part by telephone, always with translation problems, and the absence of disclosure. He considered that the inconsistencies were relatively minor and misplaced, and did not undermine the substance of his evidence.

27. Mr Carey, in his sixth statement dated 20 July 2018, to accompany the responses to the replies to the open gists, complained at the refusal of the Defendants to accommodate DPG’s interviews with the Claimants at the Embassy in Kabul. DPG had requested such a facility because the Claimants could not afford visas to leave Afghanistan, and it would otherwise be too unsafe for DPG to enter and travel. The Defendants had also repeatedly refused to meet the Claimants directly for the purpose of carrying out the risk assessments. He also gave evidence about the difficulties in taking substantial statements over the telephone: poor quality of line especially with the interpreter, sometimes frequent signal breaks, repetition of questions and answers as a result, a risk of mistranslation or misunderstanding caused by poor sound quality and the variability of interpreters, along with the difficulty of explaining what could be quite difficult matters.

28. The second common factor concerns the evidence called on behalf of Claimants about the situation in Afghanistan which were relied on to support the credibility of the Claimants’ accounts, particularly of the threats posed by the Taliban, and deteriorating security conditions.

29. This evidence included two statements from Sir Sherard Cowper-Coles, the UK ambassador to Afghanistan, from May 2007 - January 2009, and January - April 2010. Between those times, he served as the Foreign Secretary’s Special Representative for Afghanistan and Pakistan. They were dated 2 September 2014 and 13 July 2015. In the first, he said that the Taliban threat was and would remain serious; feuds lasted decades, with revenge extracted long after the event. No Afghan who had worked for the western powers could expect to be entirely safe after western forces left, and those who had worked in any capacity for the military or intelligence services would be at an especially high risk. Any agent for a foreign power would face mortal threat for the rest of his or her life in Afghanistan. By the time of his second statement, the security situation had deteriorated. I have considered all of his evidence carefully, though not all that he has to say, including about credibility, is really for him.

30. Mr Ledwidge, a barrister and former military officer with experience of human intelligence in Bosnia and Iraq, and of working as a Government legal adviser on the development of justice in Helmand, produced a statement dated 5 September 2014, which I have again considered carefully. He pointed to the importance of the Nad Ali area of Helmand to the British military and civilian effort in Afghanistan, where he thought that the insurgents had almost total control. The provincial capital, Lashkar Gah, was safer. He referred to the night letters which some civilian staff received, and expressed the view that the Taliban “would take steps to threaten or kill the suspect” if there was “the slightest suspicion of involvement, especially work directly assisting UK forces.” This risk was common to all insurgencies. There were regular executions of “informers” or those suspected of collaboration; indeed, this was very common. However, the Taliban, he thought, did not have much capability to track someone down nationwide; such groups were, as he understood it, localised to a great extent.

Draft 15 May 2023 09:46


K, A, B v SSHD

31. Mr Semple, a Research Professor at Queen’s University Belfast, and an expert on Afghanistan and Pakistan, provided a statement dated 5 September 2014, in which he explained something of the attitudes and structure of the Taliban. “Outing spies and delivering exemplary punishment to them is an important focus of Taliban activity.” The Taliban code of conduct contained detailed guidance on the treatment of spies, including how it was to be established that they were spies, and the level of judicial seniority, a qazi, required to pass sentence for execution by firing squad. This detail reflected the importance attached by the Taliban to countering spies, but, in practice, Taliban commanders in the field routinely failed to observe this “due process” and conducted summary executions rather than trial by qazi. He gave examples of videos of confessions forced from local residents and of their execution. He noted “frequent Afghan media reports of summary executions of those whom the Taliban consider to be spies. On this basis I believe that any Afghan known to the Taliban to have worked for foreign military forces as an agent or paid informant would potentially face an imminent risk of death.” I think that “known” in this context includes those suspected and from whom confessions have been extracted.

32. Mr Semple also explained that Taliban operations were relatively local, with areas of operation based on where the recruits live. “Outing and executing spies is something done fairly locally,” by local commanders. The smallest area of operation would be the district, such as Nad Ali. At a minimum, he would expect an active Taliban group “to be able to threaten suspected spies throughout its home district.” Helmand Taliban lacked the capacity to conduct operations in Kabul and would pose little threat to someone living there who observed appropriate precautions. But Taliban operating in Helmand could infiltrate Lashkar Gah, where it would be much more difficult to maintain anonymity and personal security.

33. The Afghan National Police, ANP, would not be able to protect someone facing an individual Taliban threat, if they had no official or political standing and, if the claim was based on being an agent of a foreign power, they would face “some prejudice and lack of sympathy” from the ANP.

34. Amnesty International, AI, produced a bespoke report for this case in July 2015. The conflict had intensified from 2014-2015, taking “an extreme toll” of civilian lives, as the Taliban, and other armed opposition groups, tested the capability and resolve of the Afghan security forces. The majority of the increasing number of security incidents were in the southern part of the country. Over 800,000 were internally displaced and Helmand was one of the main provinces experiencing the increase. AI “would have serious concerns for the safety of any individual suspected of having engaged in intelligence gathering or “spying” on behalf of the international forces in Afghanistan.” All of them “take a very active interest in the possibility of spying against their operations and a highly aggressive stance to individuals suspected of involvement in such activities.” Particular attention was paid to native Afghans in this respect. In 2014, 1114 civilians were killed in targeted attacks or while in the custody of the perpetrators. There were incidents in which a total of 17 civilians were beheaded, almost all on accusations of spying or supporting the Afghan national security forces, mostly by the Taliban. There were other incidents too, of which AI gave other examples, including some where the Taliban claimed responsibility on their website. Although most of these executions were of those alleged to have spied

Draft 15 May 2023 09:46


K, A, B v SSHD

for the Afghan government, it was unlikely that the Taliban drew a relevant distinction between them and those suspected of spying for international forces.

35. The United Nations Assistance Mission in Afghanistan, UNAMA, had reported annually on a consistent pattern of civilians being targeted for execution or other serious mistreatment as a result of suspected collusion with international forces. The Taliban had a different view from UNAMA of what “civilians” were not to be attacked. AI considered that “accusations of spying frequently act as the logical end point of a wider concern by armed opposition groups to discourage and punish Afghan “collaboration” or support for international forces and the Kabul government.” The accusation is used to justify attacks on civilians connected to international forces, organisations or the Kabul government, even where no spying has taken place, in order to undermine the government and those opposed to the Taliban. There was plenty of evidence, including from the Home Department’s Country Information and Guidance of February 2015 produced for asylum claims, that those connected to international forces in ways other than by spying, were threatened. This Guidance related mainly to 2012-2013. There was no effective protection from the state in areas controlled by anti-government forces.

36. AI also pointed out the relationship between the accusation of spying to the accusation of being anti-Islam, a widespread threat seen as worthy of a violent response. This would make it very difficult for anyone to seek protection from the police or other authorities, if the fear asserted was as a spy for a foreign power. They would also find it difficult to find protection in their own or other communities because they would be ostracised or at risk of being reported to the Taliban by its informants. Where the Afghan government was in control, there might be a willingness to offer protection, but the police were unlikely to be effective, because of resources, corruption, morale, lack of training or will, unless perhaps the person had some position which it respected, though it did sometimes execute those accused of working for the Taliban.

37. Ms Heller, Director of the New York based Iraq Refugee Assistance Project, which also worked with Afghan interpreters for IASF, made a statement in July 2015, in which she said that anyone who had worked for the USA or UK in Afghanistan would come under serious, direct and persistent threat from the Taliban, when that service was discovered. The Taliban was extremely persistent in seeking out such individuals, whether through locals recognising them when they were with the British forces, carrying employment badges, or through disclosure of their work by family members, or by guessing at the cause of long absences, and their photographs had been published sometimes in US media. Once an interpreter’s identity was known, the Taliban were relentless in pursuing their death. Many interpreters had had relatives and friends killed or tortured, the Afghan government forces had been unable to protect them, and threats went unreported in consequence.

38. Dr Antonio Giustozzi, now a Senior Visiting Professor at the War Studies Department at King’s College London, provided a report dated 29 July 2015. He had considerable experience of Afghanistan. His report focused on the impact on the risks faced by K, A and B, were they permanently to relocate, and the practical matters associated with their relocation. He explained that, while nowhere in Afghanistan was completely safe from the Taliban, Mazar-i-Sharif, Kabul city and, to a lesser extent, Herat city were typical refuges for people running from the Taliban. This was because of the better

Draft 15 May 2023 09:46


K, A, B v SSHD

employment opportunities, the many elements already living there who were hostile to the Taliban, there were many targets for attack there of higher priority than the “average informer”, and the Taliban operating there were from different networks from those operating in the south, even if they did exchange information, and share the same policies towards “collaborators”. Helmand was now one of the most dangerous places in Afghanistan. If K, A or B settled away from there, the risk to them would be much less, even if growing.

39. The risk from the family and associates of a particular Taliban commander would also be reduced significantly. Dr Giustozzi did not recognise this individual’s name, but pointed out that there were thousands of Taliban commanders, many of whom used aliases. His killing could start a family blood feud; avenging death was a matter of opportunity and could take years, and was without time limit. “The fact that K, A and B have been able to survive until now does not in any way imply that they have been forgiven or forgotten.” Relatives of individuals opposed to the Taliban were executed in retaliation, being particularly targeted when the individual himself could not be found. The Taliban rules did not permit the targeting of female family members or pre-puberty boys.

40. As to the practicalities, permanent relocation to Kabul, for example, would have very important social and economic consequences for each of them. Without family support, state assistance or a well-paid job, it would be very difficult to find accommodation; this was now very expensive due to the very large number of refugees who returned from Pakistan, doubling the population of Kabul in 12 months, and the destruction of houses during the war. By 2004 the rent for a single room had matched a male labourer’s wage. By 2011, quoting from the Times of Central Asia, the very cheap areas of Kabul cost $220-330 for an average family house; land prices and construction costs were very high. Even a mud brick house in a remote part of the city would cost $30-40000. Many people now shared accommodation, with say 4 to a single room, but nonetheless at a cost of some tens of dollars a month, or less if say, 10 people shared a dormitory, at $10-12 a month. A one bed city centre apartment would cost $300-400, and $100-200 a month outside Kabul city centre. Family accommodation cost considerably more, $400-700 and $250-500 for the same two categories. A family would need $600 a month to live in Kabul, a single man $200; unemployment was growing as foreign powers left, and aid reduced. Although prices would be lower in Herat and Mazar, they were predominantly Tajik areas where relocation for southern Pashtuns would be more difficult without social networks, and with reduced job opportunities.

41. Dr Giustozzi produced a further report dated 7 September 2018. This was to address the question of whether Taliban threats could endure over a significant period of time without being carried out, and the impact on the imminence of such threats of the subject moving away, K and B to the provincial capital, and A to Jalalabad and Kabul.

42. It was not in issue, and the Defendants accepted, that there was a serious risk from the Taliban to persons identified as collaborating with British forces. Dr Giustozzi reiterated the conclusion from his first report that the Claimants’ survival did not imply the Taliban were forgiving or forgetting the actions said to have given rise to the threats. It simply demonstrated that the Taliban had not yet had the chance to inflict its intended punishment. It had listed many targets for years before managing to kill them, and there was evidence from its judges interviewed in 2016 that they

Draft 15 May 2023 09:46


K, A, B v SSHD

were still punishing people sentenced before 2001. Executing the death threats could be affected by the capacity of those making the threats to locate K, A or B with precision, and then to carry out the threat. Delay in punishing those such as the Claimants was not unusual and could not lead to the inference that their accounts of threats were false. It was more consistent with the Taliban lacking the resources immediately to pursue all they threatened or to do so anywhere; localised threats were affected by issues of localised capacity. He repeated that the targeting of relatives was also an established Taliban practice.

43. The Taliban regarded several hundred thousand people in Afghanistan as collaborators, including members of the security forces, most government officials and contractors, who obviously could not be targeted all at the same time. This did not mean that the threats were not serious. The Taliban had a system of intimidation, based on tracking down and identifying individual collaborators but this required it to know of their whereabouts. The threat was neither short-term nor local.

44. A localised blood feud, with possible Taliban associations, was more difficult to judge, but where the source of a blood feud was the death of a Taliban commander, this would attract serious sanction from the Taliban, making it a much more dangerous blood feud than one involving a single family. This could apply to each Claimant. Even if the family of the commander could not reach beyond Helmand, they only needed to report K, A and B to the Taliban as collaborators. A localised blood feud would increase the risk to family members because all male relatives would be considered fair targets. It was quite possible that K’s sons had fallen victim to the blood feud once they ventured out of Lashkar Gah.

45. The absence of night letters did not mean that the threats issued by the Taliban by telephone were less serious; they simply meant the Taliban might have the telephone number but not the address of the target, or that he lived in an area they could not access readily.

46. Dr Giustozzi reiterated what he said in his first report about the greater safety in relocating away from Helmand, albeit that the level of Taliban threat in Kabul was higher than previously suggested. Dr Giustozzi thought that the level of threat had been increasing in parallel with the rising level of violence, increased Taliban territorial control and infiltration. Since 2014, the rural areas and several district centres in Helmand were under Taliban control. An NDS officer referred to increasing Taliban capability in Kabul, suggesting that if the threats emanated from centralised Taliban structures it extended to Kabul.

47. The Taliban operated a database of government officials, and others opposed to it, which Taliban intelligence administered. Taliban informers would pass information about employees and collaborators to Taliban intelligence, and on that basis individuals were warned and blacklisted. The data would be shared with localised Taliban intelligence structures were the targets to change area.

48. In AS (Safety of Kabul) Afghanistan CG [2018] UKUT 00118 the Tribunal did indeed, as Dr Giustozzi says, reject his evidence of a centralised blacklist, but he said that it did not reject the existence of blacklists as such. I have read the case he referred to. The relevant paragraphs are 55 – 58 in which a generally favourable assessment is made of Dr Giustozzi, 70 – 83 which set out his evidence about a blacklist, and 173 –

Draft 15 May 2023 09:46


K, A, B v SSHD

185 in which the Tribunal sets out its conclusions, disagreeing with his evidence on the blacklist.

49. His evidence was that the highest priority for hunting down and execution were those who posed the greatest threat to the Taliban: senior serving Government officials, the security services and spies. Collaborators, more broadly defined, could number several hundred thousand people and the Taliban did not have the resources to follow up on all of them. The system introduced by the Taliban in 2006 for the identification, warning, trying and sentencing of persons before execution was limited to those already sentenced by a Taliban court. Once sentenced, the sentence remained forever until carried out.

50. The Tribunal concluded that Dr Giustozzi’s evidence as to the existence of a blacklist, setting out the names of people sought by the Taliban came only from limited Taliban sources and was not corroborated by any other external sources. It identified a number of reasons why it was not prepared to accept that the centralised or single blacklist existed or was operated by the Taliban to identify targets. The relatively small number of names on it, which covered people outside Afghanistan as well, was one of the features which cast doubt on its existence. There was no evidence that it was shared with anyone, if it existed, other than at the very top. On Dr Giustozzi’s evidence, local Taliban members tasked with hunting down wanted individuals, would only be given details of a few names of wanted people believed to be in their area of operations.

51. I doubt that the Tribunal should be taken as accepting the existence of localised blacklists. Dr Giustozzi’s evidence about localised access comes from the dissemination at local level of part of the information on the central blacklist. The rejection of the existence of that centralised list does not permit the conclusion that local lists exist. In the light of the Tribunal decision, I am reluctant to see Dr Giustozzi’s second report for this case as demonstrating its centralised existence or its localised and limited accessibility, or the existence of some other forms of list, though some form of localised list does not seem in itself to be unlikely.

52. He said that subsequently the existence of some form of blacklist had been confirmed by subsequent research including an interview with an NDS officer in Kabul. I am not entirely sure whether Dr Giustozzi is saying that the existence of a central blacklist, rejected by the Tribunal, has now been confirmed in his view or whether he is saying there is evidence for some other form of blacklist.

53. Dr Gustafson, who produced an open report dated October 2015, is an academic specialising in intelligence issues. He is director of studies at the Centre for Intelligence and Security Studies at Brunel University, and had taught in the War Studies Department at RMA Sandhurst; he had also served for 10 years in the Canadian armed forces, and was still an officer with UK armed forces, having served in Afghanistan, in an Intelligence Corps role, mentoring and liaising with Afghan forces in intelligence matters. He had travelled widely in Afghanistan. He had never worked as an agent handler or a CHIS handler, and emphasised that his report was essentially by an academic studying intelligence issues. He thought that the details provided by each Claimant of their alleged status, handling methods, tasking, technology, payments, entry into bases, and debriefing were sufficiently consistent with current practice to be plausible, as was the account of the threats. He supported

Draft 15 May 2023 09:46


K, A, B v SSHD

what Mr Carey and Mr Hundt said about the infrequent use of dates, and said that most Afghans would place events by the seasonal rhythm of the year, and festivals. The requests for compensation were in line with the cost of living. $400 a month would provide a “pretty sparse existence” in Kabul or Herat, survivable but better in other cities, and equivalent to the pay of a captain in the Afghan Ministry of the Interior.

54. Dr Gustafson produced a third statement, his second in open, dated 31 August 2018, to deal with the reasonableness and feasibility of resettling K or A or B or all to Kabul. This was based only on open source material. The Afghanistan Government faced a continuing and serious threat to its security and its control of the countryside remained contested. Kabul was the most secure of any major city in Afghanistan and was likely to remain secure so long as the US and allies underwrote its defence and security budget. One reason why the security situation was worsening was the growth of non-Taliban, but violent, terrorist groups in Afghanistan. Attacks on Kabul tended to be “spectaculars” aimed at media attention rather than holding ground, even though the Taliban and others had the ability to infiltrate fighters and arms.

55. While life in Kabul was not disproportionately dangerous, it was not easy either with very high unemployment, meagre salaries with often a large immediate family to support, and extended relatives who could number dozens. The cost of living was high in relation to wages. Most work was vulnerable employment.

56. The ability of a provincial to blend into Kabul was marginal and for a Pashtun it would be difficult to remain anonymous outside a Pashtun neighbourhood in Kabul. Resettling as a Pashtu speaker into Kabul was not easy and they would need relatives or a job or good friends to resettle which would otherwise be very difficult. (This latter point was something of a new line, as by this stage only A was seeking to be relocated outside Afghanistan.) Within Pashtun neighbourhoods, there was still significant violence through blood feuds and Taliban or others infiltrating the city. Anyone identified as an employee or a supporter of western powers was likely to remain insecure. Full anonymity for a migrant to Kabul was unlikely. Any association with the Taliban would risk the attentions of the Afghan security service.

57. Mr Carey produced for my consideration the Home Office Code of Practice on “Covert Human Intelligence Sources” produced pursuant to s71 Regulation of Investigatory Powers Act 2000. He also produced the oral evidence given to the House of Commons Select Committee on Defence concerning locally employed interpreters in Afghanistan, supplementary written evidence submitted to it by the MOD and the report of the Committee itself entitled “Lost in Translation? Afghan Interpreters and Other Locally Employed Civilians.”

58. Of course, that Report was concerned with those whose work was overt, and by its nature different from that of a CHIS, about which the Defendants maintained their NCND stance. The narrowness of the operation of the Intimidation Scheme contrasted with the generous provisions of the Redundancy Scheme, and the Report was critical of its unsympathetic approach. The Committee had received evidence about the dangers which interpreters and locally employed civilians might suffer: a family might feel ashamed of those working with infidel forces; interpreters might not be high on the target list but the Taliban would get round to them in due course; the danger even in Kabul was under-estimated; there was a very small British presence

Draft 15 May 2023 09:46


K, A, B v SSHD

there; and the threat would rise as Government control receded, so little could be inferred from the fact that interpreters had not been killed “in huge numbers” since 2012; there had been at least 400 claims from the total of 2900 former interpreters, (the telephone number for making a claim was quite well known). Written evidence from the MoD was to the effect that 401 claims of intimidation been received, 386 had been investigated and closed; 15 were still being investigated. 35 cases received relocation payments. 284 received security advice specific to their circumstances. 85 were withdrawn or closed because of a lack of contact.

59. Mr Carey also produced the Health and Safety Executive’s paper entitled “Reducing risks, protecting people” on the assessment of risk. It is a long document. My attention was not drawn to any passage of relevance in it, nor to any in the research paper attached to it. I have read neither.

The submissions

60. Mr Owen said in oral submission that there were no outstanding disclosure issues, though the Claimants’ skeleton argument contained many observations about the fairness of the process, and said they reserved rights to raise these issues on appeal if they were not successful. In my judgment, they cannot reserve such rights; they either have them or they do not. They have had the disclosure issues considered carefully; significant issues about disclosure were raised very shortly before the substantive hearing had first been listed for November 2015, which caused it to be aborted. Even in the skeleton argument for the hearing before me, several paragraphs complained about disclosure, and other aspects of procedure, for example “the questioning and gist process has been nothing short of Kafkaesque.” The gists were too little and too late, and DPG had not had the opportunity to speak to the Claimants “in relation to the vast majority of the gisted information.” Moreover, Mr Owen submitted that the gists looked at together suggested that the Defendants had no solid basis for rejecting the Claimants’ accounts.

61. Mr Owen submitted that on the face of the Intimidation Policy it applied to staff generally, whether employed in an open capacity or not. Both K and B carried out work for the British in an open capacity, in peace negotiations or reintegration work, but with accompanying covert roles. This should be treated as a single continuum of work, where no separate terms of payment were negotiated for the different strands. The Intimidation Policy also extended to the protection of the family, which should be regarded as uncontroversial. He reminded me of the criticisms of the way in which the Intimidation Policy was applied, set out in the House of Commons Defence Select Committee Report.

62. If that policy did not apply then there ought to have been, and perhaps were protective arrangements, which the Claimants sought to enforce through usual public law principles. There was no material difference, such as could warrant an exclusion from protection, as between an intelligence agent and a civilian cooking food for the British; still less could there be a basis for treating the former rather less favourably. No bright line could be drawn between overt and covert work, including by an informant, in terms of protective arrangements. If the Claimants had been informed, before engagement, that they assumed all responsibility for any risks to them, it is unlikely that any would have been willing to be engaged.

Draft 15 May 2023 09:46


K, A, B v SSHD

63. The risk assessment needed to be thorough, fair and competent:

(1) No distinction should be drawn between overt locally engaged staff and CHIS, whose identity had become known to the Taliban and who had become a target for reprisals.

(2) Fairness did not require deference; it required that weight should not be given to trivial inconsistencies and that a precautionary principle should be applied by assessor and Court, bearing in mind the risk to the CHIS.

(3) It was unfair to find a person wanting in credibility without taking up their offer to be interviewed; this was a serious flaw in the process. The Defendants’ approach had been unduly forensic. There was no substitute for a meeting between the Claimants and the Defendants; interviews could have taken place on a without prejudice to NCND basis. The DPG solicitor had met each separately.

(4) The GLD had also provided no assistance for the Claimants to obtain visas to visit India, or the British Embassy in Kabul. It was an essential ingredient of fairness that a person has the chance to respond to adverse points before decisions are made about them, rather than doing so in the course of a review process seeking a fresh decision; R v SSHD ex p Hickey (No.2) (D.Ct.) [1995] 1WLR 734. That case concerned the procedure adopted by the SSHD before referring a conviction to the Court of Appeal, pre Criminal Cases Review Commission. It held that petitioners should receive and be able to make representations about material which the SSHD had, before he made a decision whether or not to make a referral. It was unsatisfactory to make a decision and then invite representations.

(5) A strong basis was required before rejecting evidence which was plausible. Ms Cameron’s evidence did not reveal the standard applied to the assessment.

(6) There had been no assertion of collusion between any of the Claimants, and so a common attitude of disbelief towards all three was a matter of concern. DPG had sought to avoid cross-contamination between each Claimant, and the common ground between them was striking.

(7) He also took me to a number of passages in the Defence Select Committee evidence dealing with interpreters, none of whose claims had been rejected on grounds of credibility. The DSC itself recognised that the security situation in Afghanistan made it difficult to verify the authenticity of threats, which by their very nature were always going to be hard to prove or corroborate. It had also recognised the importance of not discouraging people in the future taking up engagements which carried risk.

(8) Mr Owen drew attention to the difficulties in obtaining evidence from the Claimants in Afghanistan, as explained by Mr Hundt, the lapse of

Draft 15 May 2023 09:46


K, A, B v SSHD

time between events and their evidence, the absence of access by the Claimants to the files on them held by the Defendants, in the absence of their own written notes.

(9) I should consider whether the original refusal of assistance was reviewed during the August 2015 assessment, and whether they were reviewed in the later assessments. There was concern that they had rigidly defended the original decision rather than approached each exercise in risk assessment with an open mind.

(10) There appeared to have been a blanket decision on credibility with many similar criticisms in respect of each Claimant.

(11) Too much weight was given to unsafe and irrelevant considerations such as discrepancies in family members which did not go to the core of the claim, a point not resolved by the retraction of the criticism of those discrepancies; the assessment taking them into account could not stand.

(12) An unrealistically high demand had been made for corroboration, for example in relation to telephone calls, where the other party was making the threats. The Defendants had not been able to prove or disprove the threats, but that was no reason to deny relief; the Defence Select Committee Report had commented on the lack of staff in Afghanistan to make proper assessments.

(13) There was no expert evidence to support their view that the Claimants would not be alive if what they said were true, whereas there was expert evidence to contradict that. Moreover, such an assumption, as Mr Owen put it in his skeleton argument, was “grossly inappropriate and inaccurate” in view of the way the Taliban operated.

(14) The Claimants had not been able to respond to concerns raised by the Defendants and their response to requests for further information. In reality each Claimant had taken precautions by moving away from their home area and changing their mobile phones.

64. This all, said Mr Owen, “demonstrates the grossly unfair process, the very high threshold apparently being applied to credibility, and the inherent problem with failing to engage with the Claimants directly from the outset so as to ensure a fair dialogue.” There appeared to be a culture of disbelief operating, “whatever the Claimants say seems to be presumed to be untrue/fabricated even where such fabrication would serve no useful, necessary purpose.” I set out specific examples of those concerns in the confidential annexes dealing with each Claimant.

65. Mr Owen made a number of submissions about the approach which should be adopted to the closed evidence. A rigorous scrutiny was required because fundamental rights were at stake; there should be a searching review of the primary decision-maker’s evaluation of the evidence. The benefit of the doubt should be given to the Claimants, applying a realistic threshold to the existence of threats, and expecting a precautionary approach from the Defendants which the Court should also apply. The Court should

Draft 15 May 2023 09:46


K, A, B v SSHD

not simply proceed on the basis that the Defendants’ appraisal of the evidence was correct. Where the Defendants said that threats arose to the Claimants for reasons other than their alleged work for the Defendants, the Court “must be sure that they are wholly unconnected to their work.” Engaging in local power struggles would not be inconsistent with work as an intelligence agent, who is likely to have multiple motivations for that work anyway. If it was said that it was unauthorised work which had led to the threats, the instructions should be closely scrutinised because an agent should not forfeit a duty of care solely because of a misjudgement by him. The Defendants’ questioning of the Claimants’ accounts was insufficient to displace a presumption in their favour, buttressing the protective purpose of a risk assessment, where that questioning was based on assumptions or generalisations such as, in his words, “survival means threat fabricated” or “threat account is improbable/unsupported”.

66. Mr Glasson accepted that there was a risk to those believed by the Taliban or other insurgent groups to have worked for or to have supplied intelligence to ISAF, against which the Claimants sought internal relocation and financial support for relocation. But the assessment communicated on 31 July 2015 was that it would not be appropriate to take any further action in response to any of the Claimants. The assessments were reviewed in response to further information from them but the outcomes were not changed. There were no outstanding issues on disclosure.

67. The Defendants’ policy for the locally engaged staff was irrelevant, as the Claimants, on their claims, did not fall within it. Common law duties were not relevant to this stage of the proceedings. The assessments met any common law or policy based duty contended for by the Claimants. The only issue was the legality, and in effect the rationality, of the assessments. This was to be judged by ordinary public law review principles, allowing for the nature of the risks alleged, and the Defendants’ expertise in the crucial areas. This was in part a claim about future risk. The Defendants anticipated that the Court would adopt a rigorous and intensive standard of review, and did not suggest otherwise. There was no basis for a precautionary principle or approach to be adopted.

68. The Claimants did not challenge the scope of the assessments proposed, nor the range of possible outcomes. The Defendants had not set unduly narrow parameters for the assessments or unduly restricted the action which might be taken in consequence.

69. Mr Glasson submitted, in dealing with the absence of interviews of the Claimants, that the relevant principles on the extent of the Defendants’ duty of enquiry were to be found in R (Plantagenet Alliance Ltd.) v Secretary of State for Justice [2014] EWHC 1662 (Amin), at [100]. The crucial principle was that it was for the public body to inform itself to the extent necessary to arrive at a rational conclusion. A decision not to make further enquiries could only be struck down if no reasonable body, taking the decision in question, could have been satisfied that it had the necessary information. This was not an issue about procedural fairness. The full details of that decision had to be dealt with in the closed evidence, but the decision that no interview of the Claimants by the Defendants was necessary was a reasonable one. In any event, the Court’s role was not a primary fact-finding role, but one of review; there had been detailed exchanges between the parties including requests for further information and enquiries and responses. The Defendant took full account of the difficulties DPG faced in taking evidence, and the various factors put forward by DPG and the

Draft 15 May 2023 09:46


K, A, B v SSHD

Claimants as explaining inaccuracies, inconsistencies, and recollections which were vague, and not given by reference to particular dates, for example.

70. The GLD responded on 4 July 2018 refusing DPG’s request for assistance in meeting their clients in India. They were in visa difficulties because they did not have enough money in their accounts. Assistance was sought either to persuade India to waive its visa rules or alternatively to provide facilities in the Kabul Embassy for DPG client interviews for the purpose of responses to further disclosure. The former was refused because an interference in another country’s immigration procedures was inappropriate save very exceptionally; the “security environment” in Kabul meant the latter was impracticable. A more elaborate letter was sent, dated 7 September, explaining the latter more fully.

71. Weight should be given to the assessments carried out by the Defendants because they touched upon and concerned national security and international relations, where they had a distinct expertise including on issues which went to credibility. It was not an issue of deference but of demarcation between the court and executive in an evaluative assessment; even where the context concerned a threat to life, and the highest level of anxious scrutiny was deployed, there could be highly sensitive questions of judgment or evaluation which were not for judges to resolve.

72. The Defendants were not obliged to give disclosure on the general security situation in Afghanistan, nor was it necessary to engage with the Claimants’ general security evidence, in open, because the Defendants had accepted since 2014, that Afghan nationals believed by the Taliban to have worked for or supplied intelligence to ISAF were at risk of reprisal. The Claimants’ allegations of procedural unfairness were not sustainable in the light of the disclosure and representation which they had received.

Conclusions

73. For the reasons which are set out in the closed judgment, and which cannot be set out here, I am satisfied that the assessments made of each of the Claimants are lawful, and that no further action is required by the Defendants. I set out general conclusions here. The specific concerns, raised in the Annexes to this judgment, are also dealt with in the closed judgment to the extent necessary. Specific conclusions cannot be provided in the open judgment.

74. There are certain comments which can be made in the open judgment, however. Mr Owen laid down a number of markers or principles for how the Defendants’ assessments should be considered on review. These were not contentious for the most part, though they may have been expressed differently to a degree. Before I turn to them, I accept Mr Glasson’s submission that there had been no challenge by the Claimants to the scope of the assessment or to the range of outcomes, in terms of support, to which an assessment might lead, on an NCND basis.

75. There was however an issue about how the cause of any risks should be approached. The claims, both on the claim forms and in the evidence submitted by the Claimants, are based on threats which each Claimant claims to have received from the Taliban because of the work they claim to have done for the British as CHIS, which is what they claim the Taliban to believe them to have been. The claims are not based on overt work which they claim to have done, but which may have caused them to be

Draft 15 May 2023 09:46


K, A, B v SSHD

regarded adversely by the Taliban. They are clearly based on a belief which they assert the Taliban hold that each Claimant is a spy, engaged in covert work, and while acting overtly in the reintegration process were acting covertly as spies for the British to harm individual Taliban contrary to the overt aims of that process; for example see K 43,47,64,75; A9,11,26 (A does not in fact suggest any other specific source of risk); B8,13,32,48 (the contrast between what B said and what his brother is said to have thought is instructive on this), 55. The significance of that issue is for the closed judgment. However, although Mr Owen referred to the various aspects of work put forward by the Claimants, I am satisfied that the assessment has to be of the asserted risk to them on account of their asserted work as CHIS, and, although watertight compartments cannot be created, that is their case. I also note that the Intimidation Policy, upon which Mr Owen drew in other respects, refers to the need to demonstrate “a clear link between” their employment and the intimidations claimed.

76. A rigorous and intensive standard of review was called for in view of the asserted basis of the claims and the nature and degree of the risks said to be faced. A rigid and uniform application of a test of irrationality is no longer always appropriate for the common law test for judicial review; context affects the intensity of scrutiny and the weight to be given to the primary decision-maker’s view. But it is a review and one based on rationality or reasonableness, rather than some other public law error. Proportionality seems inapt to describe the process the Defendants should adopt in carrying out the assessment or the test to be applied in its review here.

77. I do not agree with Mr Glasson in principle that there was no basis for a precautionary approach. After all, were an assessment made that a person was a CHIS who, on that account, faced persistent and serious threats to his life from the Taliban, it is difficult to see how a precautionary approach to protective steps could rationally be avoided. However, how far such an approach applies really depends on the judgment which is made as to the cause, nature and degree of risk. How far it can inform the judgment as to the cause, nature and degree of risk is rather more debateable. In my judgment it is not the right starting point for an approach to credibility. But it shades into issues such as non-reliance on minor discrepancies, looking at the larger picture, set against the background circumstances.

78. I accept that where Defendants have to consider whether further information requires an earlier decision to be reconsidered, there is a risk that the decision-maker’s mind-set will be to sustain the decision to see if any further information is significant enough to require a widespread review or to cause a change. But I do not conclude that the Defendants were striving unduly to maintain a decision rather than reviewing afresh the implications of the further information as it came in. Most of the further information was directed at explaining details of events and threats; so it would be inevitable that at least an important question, would be how far the information or explanation actually went. This can only be dealt with in the closed judgment.

79. I accept that there may be a risk, not unrelated to the previous risk discussed, that a climate of disbelief can colour assessments. This may be reflected in treating as significant, inconsistencies which in reality are readily explicable, or are not important when judging the larger picture. It may be reflected in a failure to take on board the particular difficulties faced by the Claimants here in preparing and responding to evidence. There could be an unrealistic and excessive demand for corroborative evidence, before their evidence is accepted. There are problems too in

Draft 15 May 2023 09:46


K, A, B v SSHD

judging the significance of what may clearly be serious lies for the truthfulness of other statements; lies may be told to bolster a true claim perceived by a Claimant to be in need of support.

80. I do not discount, but rather have considered in judging the assessments, the criticisms made in the House of Commons Defence Select Committee Report. I do not consider, however, that the sort of points made in the DSC Report and evidence were really demonstrated to be present in the Defendants’ assessment of the claims here.

81. I did not detect a culture of disbelief, but rather reasoned assessments. Although some points, for example about names were peripheral and withdrawn, could suggest that all possible adverse points were being thrown into the scales against the Claimants, I judge that the Defendants did take a realistic view of the significance of these issues, even if that involved a change of mind. These were of rather a different order from those which were significant, and the Defendants’ conclusion that those minor discrepancies could not affect the outcome of the assessment, was correct.

82. I also consider that realistic allowance was made for the difficulties experienced by the Claimants in providing statements to DPG, and responses to the Defendants’ evidence. Both nit-picking and undue credulity are to be avoided. I was satisfied that the assessments focused on important factors and not minor inconsistencies, and that the areas where the Claimants’ evidence had been rejected as untruthful or unreliable could not be explained away by any difficulties in giving evidence, tiredness, losing the thread or interpretation. The Claimants may have a fair point about unrealistic demands for corroboration, particularly in the form of official reports, but given the nature of the threats, in particular made over mobile phones, and after a time when litigation had commenced, it is surprising how little there was. The absence of corroboration was treated properly: the issues turned on individual credibility and plausibility of account; evidence was not disbelieved in significant areas simply because of a want of corroboration. But it is undoubtedly a problem for those assessing evidence that significant untruths are properly judged to undermine the credibility of accounts of other events, where those accounts are not supported by other evidence, but perhaps could have been, and without it could not be investigated. I note that the Intimidation Policy envisaged the provision by the claimant of evidence of the intimidation and link, and detailed what sort of evidence was expected.

83. However, I have to say that it is quite clear that the assessment that the Claimants were not “telling the truth in relation to material and core parts of their claim [and] are apparently deliberately putting forward false evidence in order to secure the financial advantage and/or internal relocation sought”, is well made out. It is also clear that the material which led to the 2014 initial assessment in the August 2015 assessment has been reviewed by a different individual, also with relevant expertise and experience. That individual was available for cross-examination by the special advocates and all the points which Mr Owen urged were available for testing against the closed assessments. The assessments were not adverse to the Claimants, and relief is not being denied to them because the Defendants were unable to prove or disprove threats. It is because the assessments reasonably concluded that the Claimants were significantly untruthful and their evidence was unreliable, and careful consideration does not displace those conclusions.

Draft 15 May 2023 09:46


K, A, B v SSHD

84. I see no reason for deference but it would be wrong to deny the knowledge and expertise of the Defendants in relation to allegations that anyone acted as a CHIS in Afghanistan, and if so in what ways. Likewise, the Defendants have no less experience than the Claimants’ witnesses of the attitude and behaviour of the Taliban towards those who they believe have acted against them as informants, or for ISAF in a variety of capacities, for foreign governments in Afghanistan or indeed for the GoIRA and its security forces. Mr Owen complained about the absence of general security evidence from the Defendants, but there were no outstanding issues of disclosure. Nor was there any real dispute about the dangers generally faced in Afghanistan, the deteriorating security situation and the problems faced in obtaining official support for action or protection against the Taliban; indeed, the Defendants acknowledged that each Claimant might face dangers for those very reasons.

85. The question of how the Taliban might bide their time for taking revenge on suspected informants, perhaps because they did not know sufficiently precisely where they were, or had higher priority targets, how they operated on a localised basis, how they might take revenge by killing members of their target’s family, and how the death of a Taliban commander might be viewed as generating a family or blood feud are matters which depend upon consideration of the evidence in the closed judgment. I deal in the closed judgment with the issue over the reference in the assessments of the fact that the Claimants are alive and unharmed, although K’s four sons have been killed. It is their case however that they are believed to be CHIS, and that is why the Taliban poses such a risk to them, rather than the general dangers of life in Afghanistan or their other activities and views.

86. There were repeated complaints by the Claimants that the procedures were unfair. The procedures followed the statutory process for a CMP, the broader disclosure in respect of cases where Article 6 ECHR was engaged was given, and there was no appeal after the rulings on how it should be applied in principle, or after it had been applied in practice. It might be thought the more remarkable that proceedings by foreign nationals abroad claiming to be CHIS, could be brought, including after the withdrawal of the UK, than that their claims should generate a degree of protection for the national security issues which the Claimants’ own assertions raise.

87. I have dealt with the assistance sought but not given to DPG for interviews with the Claimants on the final responses in the summer of 2018. But that gives rise to no justifiable complaint. Besides I am far from clear to what extent the Claimants were actually impeded in the provision of evidence. I do not regard the absence of an interview of the Claimants by the Defendants as unfair. This is pursued in the closed judgment, but on the material available it is difficult to see how a face-to-face interview could properly and usefully be conducted, with or without the presence of DPG.

88. The Defendants did what they had to do to inform themselves properly by considering the material which the Claimants chose to place before them, and it was entirely up to the Claimants into what detail and with what chronology they went, and then by asking questions through the disclosure process, considering the answers and providing another response.

89. For those reasons and for those in the closed judgment, this part of the claims is dismissed.

Draft 15 May 2023 09:46


K, A, B v SSHD

Draft 15 May 2023 09:46


K, A, B v SSHD

CONFIDENTIAL ANNEX: K

K’s evidence about his claim

1. K is now about 52. In his first statement, he said that he used to live in a village in the Nad Ali District of Helmand Province. He had been a farmer before he started working for the British. He was married, and had 9 children, of whom 2 sons had died by the time of his first statement in September 2014. He had by then moved from his village, because of Taliban threats, to Lashkar Gah where he described his situation as still precarious, without money to protect and support his family, living with his cousin’s family who were said to worry that his work would bring them also into danger from the Taliban.

2. He said that he had begun to work for the British, in about 2008 or 2009, because he had been imprisoned by the Taliban for 11 months, shortly before they were removed from power, for trying to persuade people not to fight the Northern Alliance, contrary to what the Taliban were trying to persuade people to do. He wanted now to help rebuild the country. The Factual Annex to his second statement explained this further. He had been a farmer and a mechanic, a member of his village shura or council, and a kind of elder in the village. He had fought in the mujahidin groups in the 1980s. The statement that the Taliban had put him in prison because he had tried to persuade people not to join the Taliban was a misunderstanding, mistranslation or telephone problem: he had in fact been falsely accused of being a guide for a warlord escaping from prison.

3. The District Chief, a friend, introduced him to the British military, vouching for him. He attended a meeting with Mike, the British commander of the Provincial Reconstruction Team, PRT, at the Shawqat base in Nad Ali where he and the District Chief agreed to help the British find good local recruits for the Afghan National Police, ANP, and K agreed to help gather intelligence.

4. He was asked to provide intelligence about IEDs and Taliban movements, and about who was and who was not opposed to the Afghanistan Government. He would be paid 4,000 Afghanis a week with two top up cards for his mobile telephone. He also received money for fuel and car maintenance. He had to swear to be honest with the British, not to kill anyone or be ruthless to the people. He had a timetable requiring him to attend the PRT on specific days to receive instructions from his handlers. He was told the work was secret, that he should not ask questions about other agents, fight or argue with people or have a gun, but instead should make people happy with money. He was given a process and code to follow if he was captured by the Taliban, and the British would take action.

5. On many occasions they reminded him, on one occasion angrily, that he should not talk about what he did to anyone. He said that he had had money problems, and had asked for and was given a $1000 loan, which he repaid through deductions from his pay.

6. For the first three or four years, there was an agreed code when he called the British in order to identify himself, if he were calling from an area where people might

Draft 15 May 2023 09:46


K, A, B v SSHD

overhear. Usually an interpreter would answer. The number he had to ring changed regularly, but not his number. They checked his phone at every meeting.

7. He would go to the PRT at the end of each week to sign for and receive his pay. He showed a piece of paper about a compensation claim to provide a reason for entering the PRT area, where a car would take him to meet his team. This was the only place he met them. Later, he entered via a back entrance to avoid crowds. In his Factual Annex, he named and described some handlers, and their relationship with him. They said that he had saved many soldiers’ lives through his identification of IED locations. He also described some of the interpreters.

8. Two days after the first meeting, he thumb printed, by way of signature, a contract about four to five pages long. He signed similar pages when his handlers changed every six months or so. In his Factual Annex, he corrected that: he only signed once, at the beginning, but each new team reminded him of his responsibilities. He attended a course over three days teaching him how to use the satellite phone he was given; this was later corrected to a one hour course on one day; he was told on a number of occasions how to use it, but he was not good at it. He kept no paperwork, but the British did.

9. He worked, he said, for the British for six years, which would take it to about 2014. His first priority was to find IEDs. To do so, as a village elder, he travelled regularly into Taliban areas in his car with his wife and four children. He described how he would try to find out which roads were safe for him to use; and he would be shown by local people and would then let the British know, using the GPS. He gave the GPS to his wife in Taliban areas as women were not searched. He did this work two days a week. His Factual Annex elaborated considerably on how he did this work.

10. The second priority was to find Taliban commanders. He spent two days a week doing this. He used relatives or friends and gave them money, asking them about Taliban in the area. He would then pass this information to the British, either by telephone or passing the information at the next meeting with British officers. He was aware that a number of raids carried out as a result of his intelligence had led to arrests. He also helped the British identify who were Taliban when people were arrested; he would also ask for innocent people to be released. He used his activities as a mechanic to gather intelligence on occasions, including alerting the British to an IED factory.

11. At other times he was asked to find and report on people identified by the British. They asked him who was trustworthy on the district council; he also told them who were the poor poppy pickers, and who were the Taliban in the poppy growing areas. He was also asked to help the British when people were wrongly killed in operations and compensation was due. This included investigating at times whether the claims were true. His Factual Annex also said that he was asked once to find someone trustworthy who could do the same work, which he did. His nephew joined the Taliban to report back to him on them; this nephew then became a policeman.

12. His third priority related to local corruption and ISAF aid. He investigated the local district council at their weekly meetings. He reported the corrupt people to the British. He received equipment from the British; he exhibited photographs of some of it.

Draft 15 May 2023 09:46


K, A, B v SSHD

13. He said he went to the Nad Ali PRT and the Lashkar Gah PRT on many occasions; there was no problem with the former because of the number of people there; however, at the latter, with fewer people around, he would call in and would be told whether and when it was safe for him to come in, and they gave him a cover story in case someone asked him what he was doing.

14. K described how he had helped to bring a Taliban leader, JT, into the peace process; JT went back to the Taliban, where he was wounded and later was killed. K’s work on this led to an increase in pay to 5000 Afghanis a week, $80. In his Factual Annex, he elaborated on how this had happened. K, with MB who had Taliban contacts, and three others, at the instigation of the British and the District Chief, tried to encourage JT and others like him into the peace process, along with their fighters. JT had been responsible for many British soldiers’ deaths, but was trying to pretend to join the peace process in order to get their trust and go back to the Taliban. After about a year, JT stopped coming to the peace office and called K. JT was angry with K and MB. K told the British of this and said that he thought that JT had gone back to the Taliban. Shortly afterwards, JT came to K’s village; K found out that he was staying at the District Chief’s new house, and told the British. ISAF raided the house, and captured JT and some labourers. MB was also captured but released very quickly. MB and the District Chief thought that JT should be released as he could still be persuaded to continue with the peace process; K and MB were also worried that JT would target them if he thought them responsible for his arrest. While JT was under arrest, one of his brothers had already threatened to blow up K in his house if JT were not released.

15. JT was released 15-20 days later. K and MB went to collect him from the base where he was being held, at the suggestion of both the District Chief and K’s team, to give JT the impression that K had tried to free him. K tried to keep an eye on what JT was doing, but not long after, JT was reported to be an active Taliban commander once more. Many months later, K was able to follow him to a house which he identified to the British, who attacked the house by helicopter, injuring JT quite severely. JT was taken to hospital in Pakistan, where he recovered.

16. K said that this led to the threats to him becoming much more serious. JT’s father telephoned K to say that K and the District Chief were responsible for the attack, and that if his son recovered, he would kill K and give K’s wives to JT, and that if JT died, he would burn them. JT’s father made such threats up to 5 times a month. He could carry them out using JT’s many fighters. W, another Taliban commander, also began to threaten K with death from the Pakistan Taliban; he called four times; K told his handler what the number he rang on was. A few months later still, JT himself rang K, threatening whoever had done it to him, but K denied to JT doing anything to harm him or having any motive to do so. However, JT continued to abuse him and threaten him with death, until JT himself was killed. Other Taliban also had K’s phone number and rang him, calling him a “kaffir”; such calls have occasionally continued.

17. In his Factual Annex, he described other incidents, however, where his handlers had been unhappy with his work, but generally, he says that he was praised a lot.

18. A year after he started working for the British he gave them the whereabouts of three high ranking Taliban commanders. The British were very pleased and wanted to thank him; they asked him what he wanted. He said he needed a house and shops to support his family at a cost of between $400,000 and $600,000. He was told he

Draft 15 May 2023 09:46


K, A, B v SSHD

would receive this before the British left the country. The British told him he was their brother and had saved 300 British soldiers’ lives. In his Factual Annex, he said that the sums of money were more by way of example put in the evidence, and were not sums of money which he and the handling team discussed; property value was not discussed at all. The problem in his evidence arose, he thought, from the reading back of the statement.

19. K said he did not want the British to take his family to the UK but wanted money to relocate to a safe place in Lashkar Gah and to ensure financial support for him and his family. He was told that the promise would be kept on a number of occasions and they were waiting for money from London. They told him he was their main agent. He named some of the people whom he said made promises to him; it was because of those promises that he continued in this work as the risks to his safety worried him. In his Factual Annex he corrected this, to say that the promise had been made only the once. The error he said must be down to poor translation. He described the person whom he said had made the promise. He did not know whether the promise was written down. It was given when JT was considering entering the peace process.

20. It was after around one year of working for the British that threatening telephone calls began; however, he also said he thought that it was around the beginning of 2013 when the British ceased most activities in Nad Ali, stopped paying him and stopped calling him, although they remained in Lashkar Gah for some time afterwards. In his Factual Annex, he clarified this; the threats began more like three years after starting work for the British, after JT left the peace process and returned to the Taliban; and that event is the point which he identified as the start of the threats.

21. There was no warning that his contract or work was to be terminated. There was a lunchtime meeting and party with only the British and an interpreter and himself. They said good-bye and thank-you, gave him a watch and said he had rescued nearly 400 soldiers from IEDs. This he found sad after six years. They took back the mobile telephone they had given him. They said that they would have a separate meeting about his family and a house; he should take care and stay safe and would be given a house and shops. He was provided with no information about ongoing security or risk assessments.

22. The threatening phone calls varied between five a week down to none for many months. He said it was the Taliban who called him and said that he was a dog for the British and a non-believer. K said that he believed that JT had realised his role during K’s discussions with the British. These calls made him very worried so he reported them to the British officers who told him to change his telephone number, but the Taliban easily discovered his new number because, as head of the local Shura or council, he had to give out his number. He was given more than 20 new telephones or SIM cards this way.

23. The most recent threat was mid-August 2014 in which K was told, in a phone call, that the Taliban would kill all of his family, including brothers and other relatives. He tried to ring the British on the old phone numbers, but after he had stopped working for them no-one answered. He had no confidence in reporting threats to the police, knowing their corruption and relationship with the Taliban.

Draft 15 May 2023 09:46


K, A, B v SSHD

24. K said he knew the threats were real because he had already lost two sons as a result of his work, since the British drew back from Nad Ali. About nine months before K’s first statement, his son NA, aged 27, went for medical treatment to Quetta, in Pakistan. He was captured by the Taliban and held for two months in a madrassa, with his hand bound very tightly with chains. K elaborated in the Factual Annex. JT had phoned him when NA was in or en route to Pakistan, conveying to K that he knew that NA had been kidnapped, implying that he had ordered it. K believed that it was in fact W who arranged it. W and JT's father were members of the madrassa where NA was held by the Taliban.

25. Originally K had said that he received a phone call from the Taliban asking him to collect NA from Quetta. They said he had had a car accident and brain injury. His son came on the phone and told K not to come as he would be attacked. Later the Pakistani police raided the madrassa and NA told them he was from Afghanistan. They took him to someone he knew in Quetta who rang K to say that NA had been released. K’s wife and his brother went to bring NA home as K says he knew it would be too dangerous for him to go. K gave a different version in his Factual Annex. After the phone call from JT, he sent his brothers to find NA; they were unsuccessful. Two months later, the man from the hotel rang K to say that NA had been found; K then went with his brothers, not with his wife, to collect NA. His wife went later for her own health reasons.

26. NA was in a bad way. His hand had to be amputated and he died 3 months later (7 months in the Factual Annex) because bad blood was used in the transfusion he needed as a result of the injury or operation. He again asserted that his son:

“had been targeted because of my work. I believe our family has been singled out by the Taliban because of my work for the British. The Taliban knew that he was my son, he told me so – they had asked him if he was my son when they captured him. My son told me that the brother of the Taliban commander [who was arrested] told him that they knew he was K’s son. They said to him that I had lied to them in asking [the commander] to join peace negotiations. [His brother] blamed me for [the commander’s death].”

27. K and NA also went to see the governor of Helmand; the media were there; they asked how it had happened; K said that it was an accident; NA said that “they” wanted NA to get his father to go to Pakistan, which NA had resisted, knowing of their intention of killing K. Over the ensuing months, NA told his father that the Taliban had taken him: while he was in the hospital for the treatment which had taken him to Pakistan in the first place, someone claimed to know K, and had then helped him with the doctor and medicine, and invited him to stay. But NA was in fact then taken to the madrassa where he was detained for 2 months, tied to the wall.

28. In his third witness statement dated 3 October 2015, K provided more details of NA’s travel to Pakistan which was during the cotton harvest after JT was injured, which put it at around November 2012; NA had a stomach problem, but he had not returned after ten days on what was expected to be a three to four day trip. K asked people who came back from Pakistan if they knew anything. About 50 days after NA left for Pakistan, K’s brother and his wife went to look for him. His wife went because he needed an older woman to accompany him across the border. He spent 13 to 14 days looking for NA. In Quetta there was an Afghan area and an Afghan hotel to which

Draft 15 May 2023 09:46


K, A, B v SSHD

NA was brought on release as the police knew that the hotelier could find the boy’s family, as he did. K then went to Pakistan to bring him back, being able to cross the border on his own because he was an old man. He knew W had arranged that kidnapping of NA because W, JT and his father were all together in the same Taliban group, the same family and were “all of one piece.” NA died on 13 November 2013, the day before a particular religious festival.

29. The British had called K shortly after his return from Pakistan to see what had happened to NA, spoke to NA and asked him to see them and they questioned him about what had happened and gave him money for his trouble.

30. JT was killed with other fighters about 20 days before NA died. The next day, JT’s father phoned K to threaten him; the problem would continue all his life.

31. A month or so after NA died, another son of K’s, SR, who was 21, was killed by the Taliban. SR was captured by the Taliban in a different part of Nad Ali and they called K, asking for $150,000, saying they knew K was working for the British. They said the British would give him the money if he did not have it. He agreed to pay $80,000 and sent another son to make the exchange, but he was given only the body. SR had been held by the Taliban for 11 days and then shot in the head. In his Factual Annex, K described 3 elders going to talk to the man who held SR and who was part of JT’s Taliban group. K raised the money by selling farmland.

32. In his third witness statement, K said that SR died exactly one month after NA; he went missing about two weeks after NA’s death. It was not K’s son who took the money to the kidnappers but five elders who were named and other details given. Three of them went to a small named place in the area where SR was being held and in which the Taliban were very active. The three elders reported what the ransom demand was and all five went to do the handover with the money K had managed to raise. K had no independent evidence of what had happened and no-one in the village knew why it happened either. He produced a letter of complaint he had written to the local council that his sons had been killed by the Taliban. As K could not tell them about what K had been doing, he wrote that SR was a tractor mechanic with the Poppy Eradication Programme and the NDS issued a document confirming that the two sons had been killed by opponents of the Government because of their work in that Programme.

33. In his Factual Annex, K described an attack made on him with an IED, which occurred a few days after he returned from Pakistan with NA. He, with his wife and others, were driving in their car, with another car 30-40 metres ahead. There was an IED explosion in the road between the two cars; neither car was damaged. K says that he reported this to his handling team.

34. In his third witness statement, K said that the IED incident happened a few days after NA returned from Pakistan in early 2013. He described the type of IED; it was detonated by remote control and had been buried in a wall. K was in the car with his son NR and a daughter. The explosion was about 300 metres from his house at 7am when they were on their way to Lashkar Gah; nobody was in the street. He had just left the house and was driving up the street towards the main road with another car coming towards him, but it turned round and went back down the main road. After this other car had passed the place where the bomb was, it went off. In fact, it went

Draft 15 May 2023 09:46


K, A, B v SSHD

off after both this other car and K’s car had passed, so it exploded behind K’s car. K thought that maybe the people in the car which had turned round had detonated it. He had been wrong to say the explosion happened between the two cars. He thought they might all have been tired at that point during the interview. He thought he was the target of the explosion because he had been receiving threats.

35. This had led K, with the rest of his family, to move to Lashkar Gah because it had become too dangerous for him in Nad Ali. They were living with K’s cousins; he was working in the market place helping negotiate motor bike sales. He was warned in the telephone calls about an imminent threat. But in Lashkar Gah costs increased because there were many smugglers who could pay high rents and many other people moving in because of insecurity elsewhere. K said he had been forced to abandon his farm and mechanics business. He could not afford a property in Lashkar Gah and so had sent his two remaining sons to Herat province paying $1,000 each for them to travel there. He lived now with his wife and five remaining children. It had cost him $300 to move to Lashkar Gah and for temporary accommodation. He lost the money he made farming which was about $1,000 a month. Others farmed his land now.

36. In September 2014, his nephews were attacked in their old village. One was working for the ANP defending a checkpoint from the Taliban. One of his nephews was injured during an attack by the Taliban. The son of the mullah was killed by the police. The mullah came to the nephew’s house and attacked them. One was killed and two were injured. The mullah was shouting for K’s son when in the house. In his Factual Annex, K said that it was not clear that the mullah’s actions were connected to the attack on the police station; and the mullah had no sons. K’s nephew was injured in the attack on the previous day; the mullah shot and killed a cousin of the nephew, and wounded another before himself being shot dead by a third cousin. The sole witness, K’s sister, said that the mullah had been looking for K’s son.

37. In his third witness statement, K confirmed that the precise date of the shooting of his nephew was 1 September 2014. His nephew’s mother was not K’s sister and his lawyer said that although the nephew would be called a nephew in K’s culture, he was in fact a first cousin once removed in English relationships. The incident, in fact, did not happen in K’s old village, but very near the PRT office in Lashkar Gah. The shooter was a student in the Mullah’s madrassa. His nephew’s mother heard the shooter and his companion talking, when they arrived at the house, for K’s son. K gave further details of the shooting. The police had come and his nephew’s mother identified one man in the madrassa as involved. The police arrested him and handed him to the NDS, but he was later released for reasons K was unaware of. When K heard what had happened, he went to the nephew’s mother’s house where the bodies were still lying and she shouted at K’s wife that her son had been killed because of K’s son. She told K’s wife what she had overheard before the shootings. The nephew’s mother’s family have moved to Herat and say they are going to move to Iran. Her husband’s brothers killed a Taliban, so they are also targeted by them now.

38. K said he had been affected physically and mentally by the strain of living in fear. He felt shame because they were living in his cousin’s house. He wanted the British to keep the promises they made so he could build a new settled family life in Lashkar Gah, notwithstanding the risks. He wanted compensation and immediate assistance in funding secure accommodation in the centre of Lashkar Gah, where security was greater but so too were the rents. He said he felt safe there because he could keep a

Draft 15 May 2023 09:46


K, A, B v SSHD

low profile, never saying he was working with the British, and the Taliban threatening him were in Nad Ali. He would need money in reserve in case things worsened in Lashkar Gah and he had to move again. He said he should have worked for the Americans who helped their intelligence workers, whereas the British did not even say good-bye. He also sought anonymity because the Taliban punished people who claimed compensation from the foreign forces.

39. K’s second statement responded to the letter from GLD dated 12 June 2015. By July 2015, K said that the situation in Lashkar Gah had become more difficult and less secure; he no longer felt safe there and wished to move. K and his family lived in two small back rooms of his cousin’s house; the house was not very secure; there were inter-family tensions. K only received a small amount for the work he did for his cousin, as did one of his sons, but he had a household of 11 to provide for, including his sons’ widows and their children. His farm land had been sold and he had few belongings. He now wanted to be relocated out of Helmand Province, and preferably not to Kabul; he spoke Pashtu and Dari. Houses would be more expensive in the Provinces to which he could go; the cost of appropriate accommodation would exceed $80000. He would like to run a shop, which would cost $10-15000 to set up, and he would require financial support for himself and his family for up to 2 years, assuming the business were successful; that would be $400 a month. He would like assistance with educating his sons.

40. The Factual Annex referred to his sorrow at the loss of two sons, and the adverse effect that the death of NA had had on his wife’s health and mental state. They had spent money on doctors to no real effect; they said her problem was with her mind. He had to sell the farm land at a 20 percent undervalue to raise money for their attempt to release SR, and the kidnappers kept all the ransom money. He had a share in a house in Nad Ali, but it was not safe for him to live there, and he could not sell it while members of his family lived there. His family could not support him. He had sold his car, getting much less than he paid because it was old. He had no farm income; he owed $1000 for the temporary rent of a house in Lashkar Gah, which they moved out of when they could no longer afford it, plus it appears another $1000. His son was arrested because of the debts but released on a letter of guarantee. K feared imprisonment for debt would follow. This debt was not causing any of the threats. K had to sell his 9 year old daughter for $2900 in marriage; she would still live with K until she was old enough. But they have now spent the money which that arrangement gained for them. His 16 year old son, R, worked in a bakery.

41. The threats continued: originally, they had come from JT, the Taliban commander whose arrest, release and death he referred to in his first statement, and from JT’s father and brother. The latter continued their threats, along with W. He called once a month or less, but the other two called sometimes several times a week, sometimes less. He had not been able to save the telephone numbers they called from on his phone. They called him a “kaffir” and “British dog”, and accused him of killing a Taliban fighter. Two called him a spy. They threatened to kill him and to burn his family. One call said that they would do so unless he gave a daughter to JT’s family. He wrote the caller’s number down and exhibited it; he thought that it would be risky to save it in his phone. They claimed to know that he was in Lashkar Gah, but K thought that they did not know his whereabouts, though he thought that they could

Draft 15 May 2023 09:46


K, A, B v SSHD

find out at any time. Sometimes he argued with them, and insulted them back. Were he to change his SIM card, they would just find out what the new one was.

42. In his Factual Annex, he said that he reported the threats up to the point when he stopped working for the British: they asked him about JT, and conversations in the Peace Council about him. He also told the British about the phone call threats from JT’s father and W. They advised him to pay no attention, or not to answer his phone; and if something did happen, he was to call them, and use the code word he had been given, and the British would do all they could to help. He told the British that when they left, and he had decided to stay for family reasons, he wanted a house and shops to help him support his family.

43. He explained how the Taliban knew about his work for the British. He said that JT knew he was a member of the Peace Council, but that had not lead to any problems; it was after JT was wounded that JT started “giving me bad words.” K thought that he had found out or “calculated” that K was a spy. His public links with the District Chief, who had enemies, would not result in the threats he was receiving, though there was an increased risk to K now that that District Chief had left office. The District Chief also faced corruption charges which were only brought after the British had left. In his Factual Annex, K denied that he had become too close to the District Chief, who knew that he worked for the British but not in what role. Both disliked the Taliban and had good relations with the British. It was useful for him to be close to the District Chief because he could keep an eye on all the public authorities and listen at council meetings.

44. The serious threats were from the enemies he had made in the Taliban because of the work he did with the British.

45. K described a kidnap attempt made on him in March/April 2015. Under the pretext of looking for labourers, three men had persuaded him to get into a car, along with a boy whom K said also needed work. On the main highway, one said that here was the place to kill him, and put a burqa over his head, kicked the boy out of the car, and drove off fast. They went fast into a police checkpoint, but the police forced them to slow down, opened the doors, ordered the men to put down their guns and, thinking that K was a suicide bomber, told him to get away from the car. This he did, running off, while behind him, there was an interchange of shots between the police and the men. He was taken to the police station, with an uninjured kidnapper; after questioning, the police explained to him that the kidnap was connected with an unpaid loan. K was released. He went as advised by the police to the National Directorate of Security, who told him that it appeared to have been the result of mistaken identity. The kidnappers had been released on payment of some money. The NDS refused to give him a paper saying that the same thing would not happen to him again. K believed that this was the Taliban or their allies, targeting him because of his work for the British; he found out later that they were JT’s people; a cousin in the Taliban area told him that the Taliban had said that someone had tried to kidnap K. He did not report this to the NDS or ANP as they would ask if he really were a spy.

46. There was no government in Helmand, and no protection against killing either by the Taliban or now ISIS; checkpoints went unmanned after dark. When he received threats while working for the British, he believed that the British would help him were he in danger, and they had stopped the Taliban operating as openly as they now did.

Draft 15 May 2023 09:46


K, A, B v SSHD

Now he had no support, and the general security situation was worsening. There was more popular support for the Taliban, since they would at least allow people to grow poppies. The authorities lacked the power and money to protect him, and many police would report to the Taliban. If the authorities asked why he needed protection, he could not blame it on conflicts which did not create the problem, nor could he say that it was because he worked for the British. They could report that to the Taliban, or themselves take a hostile view of his having helped the British rather than the Afghan Government.

47. K explained how he came to bring this litigation. A relative told him that a trustworthy Afghan journalist was writing about people affected by ISAF. He contacted the journalist, explaining that he had worked secretly for the British, and was now being threatened by the Taliban. K had accepted from his relative that the journalist was trustworthy; he did not speak Pashtu, and the Taliban did not like journalists anyway. They met about 6 months after the British withdrawal from Lashkar Gah; K explained the work he had been doing. The journalist put him in touch with English solicitors, initially Leigh Day. K said that he had told no one else about his work with the British, including his wife and children, although his friend the District Chief had been aware of it.

48. On 19 August 2015 DPG wrote to GLD saying that another of K’s sons, SN, had gone missing; this had not been reported to the authorities lest they question K about why his family was being targeted in this way. K had sent his family now to Herat while he stayed on in Helmand. On 18 September 2015, DPG wrote to say that the body of SN had been found, brutally murdered, and that W and another were claiming responsibility for it. The letter contained considerable detail from K about how the body was found and about associated threats from W and the other Taliban. A number used by JT’s father was among those used. They threatened to kill K and all his family because he had killed Taliban and their family. K had now joined all his family in Herat. The DPG letter described the killing as a reprisal for K’s work in providing information about JT.

49. The questions to the Claimants which followed the disclosure hearing before Mitting J raised questions in relation to what had been said thus far. Some were addressed in the same terms to each Claimant; others were specific to each Claimant. I have set out earlier those which were common to each.

50. The detailed questions, relating to what K had said, included a detailed chronology of events; full details of all of K’s family, details of the threats made by JT’s father, W and JT, including why K said that JT was passing K’s telephone number to other Taliban fighters; a considerable array of further detail about the account of the capture and release of NA, and of the death of SR were sought. In each case details of the sons’ names and dates of birth were to be provided, and evidence of the involvement of the Taliban. The shooting of K’s nephew was to be addressed in greater detail, with as much as possible about the motive for it and who was behind it, as was the IED incident and the kidnap incident. Further detail was sought about the threats made, including the identities of those making the threats, numbers, reasons for them and so on, and greater detail about events described in part of K’s statements as to the effect on him and his family.

Draft 15 May 2023 09:46


K, A, B v SSHD

51. This led to K’s third witness statement dated 3 October 2015. I have set out part of this already as the example of the difficulties of the Claimants in giving evidence, and where further details of events were provided.

52. K and his family were now staying at his brother’s house outside Herat but were unable to stay for long as there were 24 people living in a three-room house. K slept outside, which was harming his health and he would not be able to do so in winter. The brother could not feed them all, and K had no money left. K provided the details of his parents and his wife. The latter was suffering badly, particularly because of the death of her sons. As three of his sons were dead, he only had one son, NR, left alive. The reference in the Factual Annex to a son, R, was a mistake for a cousin’s son. It was NR. He worked in the bakery and was, he thought, closer to 18 than 16. He identified his daughters and his grandchildren. Likewise, he gave details of his brothers and sisters, saying that none of them could keep his family safe and he could not stay with them for a long time. There were problems for his sister in having the brother’s family living with them. There was no obligation on brothers to help and, in any event, his brothers hated him because they thought he must have done something terrible to keep losing his sons. He could not tell them what he had done. It was one reason why his brother wanted him to leave his house now anyway. He had a cousin in Lashkar Gah who was quite rich and they had lived with him, until recently, after the murder of SN. But he was not rich enough to pay for K to live somewhere safe.

53. K pointed to differences in the chronology he provided with this statement to the chronology previously provided, in particular relating to the disappearance of NA, the events following that and the death of JT. He had provided the best he could. He also produced and described the documents he had obtained to support his claim, explaining the limitations of sending material where he had no scanners.

54. K then turned to the threats from JT’s father. He identified his family background and the telephone number JT’s father always used when calling K. He also gave the number on which JT’s father called K, which was his personal number put in handsets the British gave him. JT was injured around the time of Eid which was November 2011 and K gave other reasons which made him pretty sure of the timing. The threats after JT was injured in the helicopter attack were made by three people he named and another whose name he did not know who would say that K was British, that his family would be killed or burnt and other insults which K repeated. These calls were received about five times a month for two to three months and thereafter reduced to once every two months or so, but after JT was killed, they increased again. Although K changed his phone number three months or so after JT was wounded, JT’s father still managed to call him on the new number and he did not know how JT’s father got hold of it. So he then went back to using his own number with its contact details, and gave the new number to his wife. A month or so later she got an insulting and threatening call from an unknown person.

55. K corrected what he said about W, who had always been JT’s superior. AG took over from JT. W called K from a Pakistani mobile telephone number which K gave. K gave further details of W’s relations. W called him on his personal number. W called first after JT was wounded, accusing K of wounding JT. W called him again in the afternoon after JT was killed, and thereafter, K received a lot of calls from W, JT’s father and AG. But there were so many he could not remember the number of calls, from whom or the phone numbers they used, but they said that his children would be

Draft 15 May 2023 09:46


K, A, B v SSHD

burnt and he was called a Christian and so on. The third call from W was from a number that K had written down the first time W had called. K had called it by accident and it was answered by MB. MB’s brother, AS, rang him using that same number and told K that it was MB’s number. AS was calling because there was a money dispute between some of K’s relatives which AS wanted K to sort out as an elder. K did not answer further calls from W until W got another number which K had not recognised. K said that in the month after JT was killed, he got so many calls from so many Taliban it was sending him crazy. There were rumours spread by the Taliban that K had taken his wife and daughter to the PRT for the British to use.

56. K described JT and his house. He first knew of JT when the Peace Council was formed and K set out what JT had told him about his background as a Mujahideen and then a young Taliban commander aged 30. He could not remember the number JT used but he had called K on K’s current number. He knew that JT had his number which he must have given W, to his father and to AG. He could hear him in the background, so he knew he was getting others to call him, whose names he did not know and whose numbers he did not have. These calls dwindled a month or so after JT was injured, but started again when he was killed. He received a call from JT’s father shortly before Eid on 13 September 2015, saying that the killing of K’s son, SN, was down to JT’s father.

57. K produced further documents, including medical documents about his wife’s problem. He said he had documents dealing with the sale of his 12 hectares of farmland, sold in late 2013 when SR had been kidnapped. He produced a document recording the sale of his car in September 2013 and some documents relating to the debt for which his son was arrested. The creditor was not responsible for the death of his son SR.

58. He corrected his first statement referring to being given 20 telephones or SIMs; he meant many.

59. All his family were living with him, except for his two sons, SN and NR, who had moved to Herat to live with his brother, but then returned a few months later.

60. K then referred to a kidnap incident in around April 2015 in Lashkar Gah. K’s father’s cousin, MD, who lived in the same village used to go to the Taliban area to farm poppies in the season. MD heard the Taliban in a nearby mosque, at the village near where SR had been kidnapped, talking about grabbing a big kaffir named as K. MD could not warn K because MD had no telephone.

61. K then dealt with the kidnap and murder of his son, SN, who went missing in Lashkar Gah on 7 August 2015 when a sort of market was being held there. That Lashkar Gah fair or mela took place on wasteland on the other side of the river from the main town and the PRT. SN went to the mela to sell his bike for a phone. As he did not return that evening, K made enquiries of his brothers to see if they had seen him. K feared that SN had been kidnapped because K thought that K had done something wrong and told them not to ask him any questions about it. K, MD and K’s brother went to the desert where poppies were farmed out of season. They looked for SN for four days. Then MD went to JT’s father’s house as they knew each other from the mosque. JT’s younger brother told him where the father was. His brother found out where W was.

Draft 15 May 2023 09:46


K, A, B v SSHD

62. K gave further details of the enquiries which he and his brothers made about SN’s whereabouts. One enquiry led to a local Taliban commander who was asked in the presence of one of K’s brothers to find a person whom they described as SN but called a kaffir. The Taliban commander asked one of JT’s brothers, over the telephone, but in the presence of this brother of K’s, whether he had brought a kaffir from Helmand and had beheaded him a few days ago. JT’s brother said the person he had killed was the son of the person who had killed JT. K’s brother told him of this and then went to collect the body. They then buried SN in Kheshnakhut, in the presence of only four people. K received calls from people who had been threatening him during this time, but said that the details in the DPG letter were not exactly correct because the telephone line was bad, kept cutting out and K was upset. K had received a call from W, the day before the body was found, from the number referred to in his second statement to K’s current number. There was a further call from JT’s father and another son, the son who had killed SN, saying they had killed him together in front of JT’s wife and child to show them that his death was being avenged.

63. K said he could not stay much with his family nor when winter came. Money was needed to contribute to his brother’s heating and food. They needed $100 a week, but there was not enough room for them to stay there. They had no clothes with them because they left Lashkar Gah in a hurry and it was intended to be temporary. He needed money for winter clothes for the family or to get their clothes from Lashkar Gah. A van for that purpose would cost $400. He needed somewhere to rent which would cost about $100 a month plus electricity. He reiterated that he had been promised help to make sure he was secure with, for example, a secure house in a secure area and a shop so that he could earn a living.

64. A statement dated 11 November 2015 from Mr Carey of DPG related a telephone conversation which he had had with K on 9 November in which K described what he had done for the peace process which involved both the PRT commander at one base and his team at Lashkar Gah, both of whom gave K directions. K told Mr Carey that the peace process in the district compound was public; local Shura members were told about it as well as the police but much of K’s activity in it was directed by the British. He believed this work in the peace process led people to suspect that he was connected to the British but it was in connection with JT that K believed that this was confirmed. K had been present at meetings between the British and JT in the peace process office. The British asked JT, at a meeting with the British, K and JT, to report to K on his activities so that K could pass this information on to the British. Other members of the Peace Council were present and K believed there were four or five such meetings. JT later referred to that meeting as proof that K was a spy. The Lashkar Gah handlers also asked him to do the same. But he did not arrange meetings between the British and JT. K would not have taken on the risks in relation to the peace process, had the British not requested him to do so. His work at the Shawqat Base on peace process was relatively short. He received money from Shawqat Base for that, but his work for Lashkar Gah was paid for by the money he already was receiving. He described it as a salary. He did minor tractor repair work as part of the poppy eradication scheme and although the death certificates for two of his sons referred to involvement in the poppy eradication as reasons for their death, K was clear the true cause was his covert work, because nothing had happened to about 30 other people working on the tractors eradicating poppies. He also reported a recent

Draft 15 May 2023 09:46


K, A, B v SSHD

threat from W over the telephone. Documents were provided with a further letter from Mr Carey of 22 December 2015, including a Taliban warning letter. It warned that failure to attend at the stated place would lead to Sharia punishment. The letters were written in July 2014.

65. On 24 June 2016, DPG wrote to the GLD to inform them that K was back in Nad Ali in the village with the rest of his family. Relations with his brother had broken down. He had only been able to find occasional work back in his village. The threats continued although JT’s father, a Taliban, had recently been killed. Other relatives of JT continued to phone him to make threats. K had not been threatened in person but he would not be alive if he had been. The growing control of the Taliban in Nad Ali could lead to him having to move, and that could make him homeless. His association with the former district governor was not an issue for him.

Gists and responses

66. A short statement was supplied by the Defendants dated 17 May 2017. It affirmed the NCND approach and repeated what had been stated in 20 November 2015, but identified that core parts of K’s account not presently accepted as credible included his account of the punishment meted out to NA and his account of the death of his son SN. Core parts of K’s evidence assessed to be internally inconsistent included the number of daughters he had, the number of children who were still alive, the account of the death of his nephew in September 2014, of the attempt to kidnap K in 2015 and the account of the death of his son SN. Relevant paragraphs were identified.

67. A further gist dated 12 December 2017 was supplied by the Defendants in respect of K following a disclosure hearing. The NCND policy was maintained. The Defendant’s position was that the assertion that K was at risk of reprisals was “not admitted”. Whilst K:

“may face threats to his security at present, given the matters to which he refers…which suggest a long-standing public anti-Taliban stance, his description of the threats he says he faces is not reliable or accurate. To the extent that K attempts to link these alleged threats, and alleged past incidents to his asserted engagement as a CHIS, it is not accepted.”

68. The gist stated that the MOD assessed that the most significant inaccuracies in his account were not mistakes as a result of errors in recollection or confusion, but were the consequence of deliberately untrue account in a number of respects, in order to further his claims. His account of key events in his third witness statement, said to demonstrate a threat to him on the basis of his alleged work as a CHIS, was inaccurate and could not be relied on.

69. The Defendants were unable positively to verify or establish the accuracy of some of K’s assertions, which included the shooting of his nephew, threats from the Taliban, JT or his family and the kidnap attempt in April 2015. Core parts not presently accepted as credible or true included:

“a. K’s account that NA was mistreated because of K’s asserted engagement as a CHIS, as well as when or from whom K’s son came by the injuries K refers to.

Draft 15 May 2023 09:46


K, A, B v SSHD

b. K’s account of the death of his son, [SR] and the reasons for his disappearance. (While it is not disputed that [SR] was killed, it is not accepted that [SR] was kidnapped by the Taliban or that a ransom was sought or paid for him, or that his kidnap and death – the dates for which are not accepted – were due to K’s asserted engagement as a CHIS.)

c. K’s evidence about being loaned 1000 USD.

d. K’s evidence about the promises or undertakings he says he was given.

e. K’s account of an IED explosion – there is no record of the event as described by K, and it is believed that he has taken this description from some other event.

f. K’s account of JT’s arrest and the extent of the threat to K as a result. This is considered significant because K states that these events describe the origins of the threat he says he now faces.

g. The account of the kidnap and murder of [SN] in K’s three Witness Statements, which is not accepted as true in its material respects, and nor is the suggestion that this was linked to his asserted engagement as a CHIS.”

70. The gist further stated that the account was considered unreliable in a number of respects which included:

“a. K asserts engagement as a CHIS until sometime between March and August 2013 (…); yet it is assessed that he would not have continued his asserted engagement for so long if the acts or threats against him or his family occurred because of his asserted work as a CHIS.

b. K’s account of repeated threats, or their asserted escalation, made over a number of years- which were not carried out – is inconsistent with his having been identified as an alleged CHIS.

c. K has given an inconsistent account of where [SN] is buried – in Loy Bagh and in Kheshnakhut (… DPG letter dated 18 September 2015).

d. MOD assesses that K’s account of the shooting of his nephew in September 2014 is confused and internally inconsistent between the different accounts he has provided in his witness statements and in his factual annex (…).

e. MOD considers that there are inconsistencies between his second and third witness statements in the account that K has given of the kidnap attempt in April 2015 (…). His account is not supported by any corroborating evidence. MOD does not consider that this incident is such as to indicate a genuine risk to K’s life or security.

f. MOD assesses that the following internal inconsistencies in K’s descriptions of his family members tend to undermine the reliability of his account.

…

Draft 15 May 2023 09:46


K, A, B v SSHD

7. The Defendants’ position is that those assertions that are assessed to be false, taken together with inconsistencies between the Claimant’s different accounts, (not all of which can be refuted in an OPEN gist) materially weaken the general credibility of his other assertions, including those that cannot be verified.”

71. Meanwhile, on 12 October 2017, DPG wrote to GLD saying that NR, K’s remaining son had been killed by the Taliban. K had been living in Lashkar Gah for the last 11 months because of the worsening security situation in Nad Ali. K had been living with NR in rented accommodation in poverty. NR had disappeared from the market and his body was found three days later, which was about 13 days ago. He had been shot a number of times. There were no eye witnesses to the kidnap or dumping of the body. K believed that his son had been targeted because of K’s work for the British. A note had been left with the body saying that it came from the Taliban area office, that they were responsible and would do the same to K when they found him. He had been called around 10 days before NR disappeared and he recognised the number and caller as JT’s father, whom he had believed to be dead but the rumours of that were false. JT’s father threatened that K and his family would be killed. He had rung again after NR’s body had been found. JT’s father had said that now they were equal, but that K had killed a Taliban commander. Such phone calls had occurred, on average, weekly during the preceding year. K could not report the killing of his son to Afghan authorities as they could not do anything and his work for the British could be discovered.

72. K had occasional work but no official paperwork and could obtain no police protection. He considered living in Lashkar Gah where he was to be extremely dangerous and that threats could materialize at any time and so he continued to seek assistance to leave Lashkar Gah and find a safe life elsewhere in Afghanistan. Changing his telephone number would not reduce the actual physical threat against him and so he had given up changing it. DPG were seeking corroboration of the death of NR.

73. In June 2018 DPG confirmed to the Court that although each Claimant knew that there were other Claimants in the same position, K was not aware of the identity of any of the others.

74. K responded to the gist on 20 July 2018, part of which I have also set out above as a fair reflection of the points made in common by the Claimants. K then set out his responses in a tabulated form to each of the asserted inconsistencies. Some of these he accepted, but explained how they might have arisen and what the accurate position was. An example was the inconsistency over the original place of burial of SN, and another was the account of the death of his nephew, including its location, which had already been dealt with in his third witness statement. An example of one he said was minor was the full detail of the more distant relationship of the “cousin” to K described in the account of the attempt to kidnap him. Likewise, he provided a tabulated response to each of the areas of the gist in which core parts were held to be not credible. He maintained his account in that respect.

75. He then dealt with the attribution by the Defendants of the threats he faced to his longstanding public anti-Taliban stance. He denied that had led to the threats. He had not been targeted in that way before he worked for British forces, nor was his work for the Council and Peace Council sufficient to mark him out as a target. Its other

Draft 15 May 2023 09:46


K, A, B v SSHD

members had not been targeted, indeed are now known as Taliban sympathisers. Willingness to work with post-Taliban forces did not make him a spy. He was being targeted because he was accused of spying for the British and because of events surrounding JT. He continued to work after March 2013 because of assurances he was given by the British officers that he would be protected. He put great faith in these assurances. All of his sons had now been killed by the Taliban, which he saw as the threats being carried out because wrongs were remembered for a long time in Helmand, and the Taliban were growing in power.

76. As DPG’s earlier letter had said, he was now living in poverty in rented accommodation in Lashkar Gah with four of his daughters and the widows of his three eldest sons, their children and his wife. He repeated the nature of the occasional work he did, the absence of any official paperwork and his inability to obtain protection from the police in whom he had no confidence. He could only afford to feed very basic food to his family. He was comparatively secure for Lashkar Gah, although living there was extremely dangerous because of regular Taliban attacks. He still received threats, although he did not answer the phone when he did not recognise the number. The threats included threats to kill him.

77. K exhibited a number of documents relating to the death of his son NR and the announcement of the discovery of the body. The Afghan Government letters refer to the death being because of a dispute about a debt, which was the explanation provided to them by K to avoid disclosing his work for the Defendants. He believes the dates are incorrect on the letters because an officer back-dated them without being asked to do so.

78. The Defendants considered this reply, and responded in turn on 21 August 2018 with the open gist of a closed statement. A modestly amended version was produced on 10 September 2018, and that is the one I now deal with. It noted the difficulties experienced in taking K’s instructions but concluded that they did not adequately account for the inconsistencies in his account. Although it was accepted that K may face threats, his description of the threats he said he faced was not reliable; his linking of threats and the alleged past incidents to his alleged engagement as a CHIS was not accepted. Although it referred to a continuing inconsistency about the number of daughters K had, on 7 September 2018, the Defendants withdrew any point about discrepancies in their names in their response to the Claimants’ request of 28 August 2018 for further information. There were also some issues remaining about the description of the rest of K’s family which tended to undermine his reliability, but the Defendants would have come to the same conclusion about the key points with or without them. That conclusion was, in my judgment, correct, and justified.

79. The discrepancies in his accounts of the death of his nephew were not solely attributable to the acknowledged difficulties of matters getting lost in translation. His problematic accounts differed on each occasion he addressed the death, and the location was not the only significant difference. The Defendants spelt out the passages in the three statements from which it said the discrepancies were obvious, in its response of 7 September 2018: the details differed over where the incident took place, whether or not it was linked to a shooting on the previous day, which of two people the victim was, and whether he was at home or in hospital at the time of the shooting. The most likely reason for the lack of reliability in the accounts was that K was not telling the truth, and that had led to the changes in his account.

Draft 15 May 2023 09:46


K, A, B v SSHD

80. Discrepancies in the account of how K came to be informed of the kidnap incident might be due to translation problems, but the later account was inherently unlikely: that the plan was overheard in a bazaar, with K’s full name used within earshot of a relative; and there was also no supporting evidence. Nor did they accept that it showed he was at risk as a result of his alleged engagement as a CHIS. In their 7 September response, the Defendants explained that the incident would be likely to have generated some official or police report, and would have been capable of corroboration by witnesses.

81. The differences in the location of the burial place of his son SN, where K now says his third witness statement was wrong and the letter of 18 September 2015 from DPG is correct, were unlikely to be simply an error given the extra detail of how few were there and his other sons were buried in his home village. Nor was the account of his death accepted as reliable evidence of any threat to K arising out of his alleged engagement as a CHIS.

82. In general, K had provided nothing further in the tabulated responses in his response to the gist, except in relation to the IED attack. But there was nothing to cause the Defendants to alter their previous assessments. The same applied to the rest of the response. More than that, the documents exhibited, relating to the death of NR, and the explanations for the errors in dates and inconsistencies, raised more questions than they answered: K was not compelled to find an explanation for this son’s death, the explanation itself was implausible, and it suggested that matters were now “even” between them and K. The Defendants accepted in their response that their point about K’s delay in producing the letter was actually to be attributed to DPG who had had it since October 2017. But they still regarded it as inherently implausible: “it was suspiciously precise in its admission that the Taliban was responsible for the deaths of K’s four sons.” It was a signed confession to four murders, which they found surprising even for Afghanistan. If the killings were part of a strategy of targeting K, it was unclear why no previous letters had been given to K. If the Taliban had suspected K of being a spy, they would have wished to kill him to avoid any further spying, and to send a message to others rather than “disinheritance” through killing his sons. The suggestion that things were now “evened out” and that K would be handed over to his foreign friends was equally implausible, for the same reasons.

83. Importantly, in the August 2018 response to the gist, they responded to K’s reliance on the fact of the death of his four sons to show that he was at risk from the Taliban and at risk because of his alleged engagement as a CHIS. K also relied on various incidents in which he said that he had been targeted. It was their view however that if K had been identified as a CHIS, and had then been targeted by the Taliban in the way he described, he would not be alive today. It was inherently unlikely that K would have received threats from them over a considerable period of time as a result of his alleged work as a CHIS, without any being followed through against him. This comment became a considerable area of debate. I consider that this approach to K and the others was well within the bounds of rationality, and one to which the Defendants lawfully came.

84. Specific concerns raised by Mr Owen in relation to the assessment of K were: (1) assumptions seemingly unsupported by expert evidence but which contradicted the Claimants’ experts: for example, K would have been targeted personally and directly, if the Taliban had suspected him of being a spy, rather than being sent a letter; (2)

Draft 15 May 2023 09:46


K, A, B v SSHD

they ignored K’s documented disinclination to report to Afghan state authorities of whom they entertained unrealistic expectations; (3) they relied on minor inconsistencies and had an unrealistic expectation of accuracy, whilst being suspicious of what they regarded as undue precision, giving the appearance of a “result driven exercise”; (4) the Court could not be sure that the Defendants’ withdrawal of reliance on the discrepancies in K’s daughters’ names, nit-picking, had not continued to infect the decision, though they said it had not affected it; (5) K’s account of the death of his nephew was somewhat peripheral; but there was no reason why would he fabricate it; (6) the Defendants did not explain why the kidnap incident would have been likely to generate some official report, and there was little point reporting to the Afghan police who could provide no protection and a report would identify him as a collaborator; (7) the Defendants’ explanation as to why the Taliban letter was inherently implausible made many assumptions which were not apparently based on expert evidence; (8) the Defendants gave no reason for considering the account of the deaths of NA and SR was not credible, accounts which K had no reason to fabricate; (9) it was “procedurally grossly unfair” for their concerns not to be put directly by the Defendants to K, leaving him with nothing to respond to; (10) the same applied to K’s accounts of the IED explosion, the arrest of JT, the murder of SN, where the Defendants appeared neither to accept K’s account, nor that it was evidence of a threat to him, and the error in the burial place of his fourth son. K might have been tired. Mr Hundt had explained the difficulties of taking evidence from the Claimants, and why discrepancies could be innocent, not least because of the passage of time since 2014. K’s core account remained consistent, and showed why direct dialogue with K was necessary.

85. I deal or deal further in closed, so far as necessary, with points (1),(2),(6),(7), (8), (9), and (10). On the last group of points, these were put forward by K in specific support of his claim, as was the death of his nephew. In the context of the claim that the Taliban would take revenge on members of a target’s family, it is not easy to see why it is now claimed, not by K himself, to be peripheral. There are significant discrepancies in the accounts. It is perfectly rational for them to be attributed to an endeavour to support the claim, rather than fatigue or the difficulties in taking evidence. K has had considerable time to put his thoughts in order, and his claim together, whether talking to DPG or on his own. Interviews with people via an interpreter and with a different culture are not often a satisfactory means of assessing someone’s credibility; discrepancies and implausibilities either remain, or in their explanation yield further discrepancies. I am satisfied that minor points did not lie at the heart of this case. There is no basis for saying that this was a result driven exercise. The reasons given by the Defendants for rejecting the Taliban letter as implausible are not irrational.

Draft 15 May 2023 09:46


K, A, B v SSHD

CONFIDENTIAL ANNEX: A

A’s evidence about his claim

1. A’s first statement is dated September 2014. He said that he was 22, and so he is now about 26, unmarried, from a village called Zarghon in the Nad Ali district of Helmand province. He had, however, been living in Kabul since the beginning of August 2014, because of threats made against him by the Taliban because of his work for the British. He was staying in an insecure part of Kabul with his aunt, had run out of money, was unemployed and could not stay there on a long-term basis. He was then likely to have to return to his village within one or two weeks.

2. He had started working for the UK government in about 2009 or 2010, though he was unsure of exactly when. A close friend from the same village had decided to stop working for the British forces, told A he needed to find a replacement and therefore asked A if he would take over the job. A was then introduced to British officers at the Provincial Reconstruction Team (PRT) in Lashkar Gah. A then began working for the PRT. His task was to gather intelligence, find IEDs and Taliban locations in two parts of the Nad Ali district. For this he was paid 4,000 Afghanis a week and received two mobile phone top-up cards. He said he met the officers once a week in the Lashkar Gah PRT and sometimes in Nad Ali. He had to be more careful in the latter than in the former, because no-one knew him in Lashkar Gah. He would use the main entrance to get into the PRT but would call somebody so that they were ready to open the gates. Sometimes the soldiers escorted him; sometimes they let him in. At each meeting there were three or four British people and one Afghan interpreter. Sometimes one of the British was female. They wore civilian clothes; he remembered no names and dealt with lots of different people.

3. He had no fixed hours but spent many hours of each day and night on his tasks. He collected his money at the PRT once a week and on a different day would receive fresh tasks. Some weeks he had nothing to report, but was still paid and received the top-up cards.

4. The British showed him photographs of the people they wanted him to find and follow and he spent most of his time looking for these and any other targets he could find. He was given a satellite phone which he returned before his work for the British finished. He was also given small coin shaped discs which created a light that he thought drones and aircraft could see; he would place them on a target such as a Taliban house or car so that the drone could find the target and kill the person targeted. When he needed more, he would be given more. He had used these discs more than 10 times in three years of work. He had none left.

5. He described how he worked: he spent weeks searching for the target he had been given; he would arrange for the target to meet him and would mark him in some way. Sometimes he did this by passing the target’s telephone number to the British so they could trace his telephone. He gave the information to the interpreter over the telephone. He had no secret code for his telephone calls. He often took one of his friends with him when he did his work to reduce the suspicions that would be aroused if he travelled alone.

Draft 15 May 2023 09:46


K, A, B v SSHD

6. He described one target, MTA, the commander of the Taliban for the whole of Nad Ali. When he found him, he put one of his discs in MTA’s motorbike pannier and told his British handlers. MTA was later hit by a drone; the disc light may not have been visible to the naked eye. MTA was wounded and taken to Pakistan for treatment. On his return, other people working for the British provided intelligence which led to him being killed.

7. He gave another example of a person he monitored for three or four months before getting close enough to mark him with a disc, which he then reported to the British. This man was killed two or three days later. He then had to leave the area, the British telling him to report, then to get out.

8. He said that it was in early 2013 that the British called him to say that they were dismissing all their employees. They offered no extra money, nor did they talk about his future safety. He asked about future protection, to which the British replied that they would protect him and take him away from Helmand as they had said they would do before. He said that he would be likely to be in danger if he was left where he was. They said they would let him know, but when he tried to call them, the telephone number did not work. He received no information about security or risk assessments. They had told him often that if his life was in danger he should tell them and they would rescue him, give him another job or take him to London or provide him with a new home and life in Afghanistan. This kept him working for the British despite his fears of what the Taliban would do if they found him out.

9. The threats from the Taliban began about four months before he finished work, at the end of 2012. Different Taliban called him requiring him to surrender to them, or his brothers and family would be killed. They said they knew he was working for the British, and they would capture and kill him in revenge for what he had done to the Taliban. They said they knew he had reported IED locations. Wherever he lived, they said, they would find him and kill him. He ignored these threats at first, nor did he report them. After he stopped working for the British, when the PRT in Nad Ali shut down, the threats continued but the telephone numbers he had did not work, when he tried to tell the British about the threats. He knew nobody in the PRT Lashkar Gah to whom he could report the threats and he could not just go into it without calling first. In about June 2014, the Taliban had come to his house, but he escaped over the wall and went to Kabul. In August, he had another telephone call from the Taliban. They said that wherever he went, even after 10 or 20 years, they would kill him. He had changed his telephone number, but they had still managed to find it. He had changed it again and given it out only to a few people. He said that his brother feared the Taliban killing him because of A’s work for the British, and his other brothers, for the same reason, had moved to Lashkar Gah where they worked in a restaurant and shop whilst hiding themselves.

10. A did not feel safe in Lashkar Gah, so he went to Kabul where he thought he would be safe. But if he was unable to support himself, he would wish to leave Afghanistan. He believed that someone must have informed against him, or that clues about his work were given to Taliban whom the British had captured. It was useless to report these threats to the Afghan police as the area he lived in was controlled at night by the Taliban. If he could not live in Kabul, he wanted to be relocated to London. He was ashamed to live in his aunt’s house, which was not secure and he could not live there

Draft 15 May 2023 09:46


K, A, B v SSHD

much longer. He had been affected physically and mentally by the strain of living in fear. He felt abandoned by the British after the work he had done for them.

11. A provided further information in the form of a letter from DPG dated 10 July 2015, which Mitting J had accepted would be treated as a witness statement in view of the difficulties which DPG might experience in taking a statement in person for the purpose of the risk assessment. A had gone by then to Kandahar to seek seasonal work; he was living with strangers and would have to leave if he could not find work. He had received no further threats after changing his mobile phone number. His parents were dead; he had 5 brothers, 3 younger than himself. A said that the younger brothers, and other villagers, had been asked about A’s whereabouts on several occasions by Taliban gunmen. By the time they reach 15 or so, the Taliban would regard them as answerable for A’s actions; the oldest of those three was nearly at that stage. The Taliban had recently killed a villager, O, who had worked for Afghan Intelligence, in a drive-by shooting outside O’s house. A’s older two brothers had moved to Lashkar Gah because they feared being targeted by the Taliban in reprisal for A’s work for the British, or kidnapping to extract information from them about A’s whereabouts; they stayed in Lashkar Gah, despite the dangers because they needed work which they had there.

12. Kabul was safer than elsewhere and especially more so than Helmand where the situation was worsening. The Afghan Security Forces could not guarantee the safety of civilians. A wanted walled accommodation, with its own entrance, in Kabul for himself, his brothers and their families, to remove them all from the risk they faced as a result of his work for the British, plus financial support for their food and basic living expenses.

13. The detailed request for information of A, following the disclosure hearing before Mitting J, sought details of his family, the nature of and the persons making the threats, including the numbers to and from which they were dialled, and any reasons given for the threats, details of the incident when he said that the Taliban had come to his house and he had escaped, why he said that he thought someone must have informed on him or that captured Taliban must have been given clues, details of the incident concerning O, and why it happened, and of his and his immediate family’s movements over the last few years.

14. On 3 October 2015, A provided his reply in his second witness statement. He corrected errors in his first statement explaining that he had but little time to speak with the solicitors, the telephone line was bad, cut out a lot and it was difficult to understand the interpreter. He produced a schedule of his family members and a short chronology of relevant events. He found it difficult to give exact dates or times because he kept no records and remembered things, primarily, by reference to the seasons and crops though that had not helped very much. His chronology was therefore vague on dates.

15. A described his family background and their whereabouts. He had left his village in around July 2014 after the Taliban came to his house looking for him. He travelled to stay with his aunt in Kabul. His two older brothers also left the village and went to Lashkar Gah fearing that the Taliban would kill them or kidnap them because of his work for the British. They were the only two who knew he was in hiding. He said they could not return to the village for any length of time because of the threat from

Draft 15 May 2023 09:46


K, A, B v SSHD

the Taliban due to his work for the British. He had provided all the names of his family members which he knew.

16. The close friend, who asked if A could take over his job, said he was worried that people would find out what he was doing and that he would be killed, and so he wanted to stop; the interpreter who worked with the British would tell him more about what was involved. A meeting was arranged by this friend with the interpreter whom they met outside the PRT in Lashkar Gah. Two days later the interpreter told him to come to the PRT and took him into it to meet the British officers.

17. At this first meeting, the British asked him his name and village, and if he was familiar with the area around it, and asked him to collect exact reports for which he would be paid a salary. At no time was he asked for his identity card. He was told his job would involve gathering intelligence, finding IEDs, and Taliban locations. The only area, contrary to his first statement, in which he worked was his village area and around the PRT in Nad Ali. He collected his pay and got new tasks on the same day, always a Sunday and not on two different days as his first witness statement said. He had two SIM cards on which to ring the interpreter, but he had thrown both away since he started receiving threatening phone calls from the Taliban on them, but he gave one of the telephone numbers which he could still remember.

18. Usually he went to the Lashkar Gah PRT, but sometimes the interpreter would tell him to go to the Nad Ali PRT instead. Sometimes the interpreter would drive out to the PRT to pick him up; he described the cars. At other times he would be told just to walk in to the PRT and the soldiers at the gates having been told he was coming, would open them for him. He was more worried about going to the Nad Ali PRT where he would pretend that he was going to see the doctor. It was more crowded there and at times he would tell the British he could not come in, if he could not be picked up in a car.

19. He could remember, by the time of this second statement, the names of British officers who had spoken to him in the PRT. He named three and provided a description.

20. At the meetings, he would be shown photographs of the people they wanted him to find and he would be told where he might find them. He had been wrong to say that the British gave him names of targets as well, with one exception. There must have been confusion in interpretation, because, with that one exception, officers never confirmed the names of the targets. This was because he could not make enquiries about a named person. Instead he would take a photograph of a photograph he was shown, and would identify the target that way. He was not troubled by having those photographs discovered on his phone because the Taliban only stopped strangers. He had been wrong to say that he had been given a satellite phone by the British. That never happened and must have been an error in translation.

21. He was asked to look by name for a Taliban commander, MTA, whose real name, he said, was JT. A found him between two Nad Ali villages. He corrected his first statement, saying that when he went to greet JT, A was only with his friend, DM. They walked up to him and asked how he was which he did not find suspicious, because he thought no-one knew who he was. JT had a very low profile and did not look important. While DM talked to him, A put one of the small buttons the British

Draft 15 May 2023 09:46


K, A, B v SSHD

had given him into the pannier of JT’s motorbike, in a way which meant JT did not notice. This was in about the summer of 2012, no more than four months before the British stopped his work.

22. He had described another task involving monitoring a man called GN who he had not named in his first witness statement, as he was talking over the telephone. He had been wrong to say that he used a button to mark him, instead he had reported his location and identity to the British, although they had not shown him GN’s photograph or asked them to find him. What happened was that GN was a Talib and people in A’s village were in trouble with him, where he was demanding money with menaces, claiming it as a religious tax to fund Jihad. He reported GN to the British who asked him why they wanted him arrested or killed, to which A replied that GN was harming the people. The British said they would do something about it if they could. GN was killed two to three days later when a truck he was driving was attacked; GN and other Taliban in the truck died as well. He was not sure whether this was because of his report to the British.

23. A denied ever using his position as a British agent to settle personal scores but, rather, said his actions were in the interests of the British people. He did not report people who simply gave food to or greeted the Taliban.

24. He was also asked to find Taliban ammunition stashes, and he gave an example of his finding a stash of IEDs based on pressure cookers. A told the interpreter who said he would come with British soldiers as they did, along with Afghan National Army soldiers. A could not go out to meet the soldiers without arousing suspicions, so he did not do so.

25. A said that he was not provided with any information about security or risk assessments, nor with any procedure for what to do if he got into trouble. He should just inform the interpreter and they would rescue him. It was late 2012 or early 2013 that he stopped working: there was no warning about the termination of his work. His first statement was wrong to say that he had a conversation with the British at this point, at which they promised him protection. It must have been a misinterpretation. Instead he was promised lots of times by the British while he was working that they would protect him, take him away from Helmand if it was not safe for A. They did not tell him this when they were leaving or offer extra money or give any warning about the work ending. There was no sign of that even the week before. The next week, the phone was not working which he rang on and never worked again.

26. Taliban threats began after JT was wounded and before A’s work stopped. He did not think the threats at first were real and thought they were pranks from friends. He did not have the SIM card for the network on which the threatening calls were made. Those came from different phone numbers which he no longer had because he threw the SIM cards away. They threatened him with death because he was a spy. After receiving several calls, he realised they were not friends making jokes, but could not report them to the British as the PRT had closed down and the number was not active. The calls stopped after he threw the SIM card away. But, about three weeks before the Taliban came to his house in the village, a night letter was nailed up in the village mosque from the Taliban saying that those who worked with the British should leave the village now and anyone found co-operating with them would be killed.

Draft 15 May 2023 09:46


K, A, B v SSHD

27. He believed the Taliban came to his house in the village in 2014 late at night. It was the Taliban who left their houses at that time of night. He heard a man tell him to open the door, but he climbed the outer wall on the other side and ran to the house of his friend DM, who let him hide there. The Taliban climbed into the yard of his house demanding to know where A was, and beat his brother. The Taliban told the brother that they would find and kill him because he was a spy for the British. The Taliban dared not search other houses that night because the villagers, if disturbed, might react badly. He then went to Lashkar Gah for three or so weeks, before going to Kabul to stay at his aunt’s house, telling her only that he came to look for work.

28. In August 2014, he received another telephone call from the Taliban while he was in Kabul. He changed his other SIM card after that and had received no subsequent threatening phone calls. This was the second of the phones he had had while working for the British. He said that he believed that the Taliban found out about his work because someone he knew may have informed on him; he had no other explanation. The Taliban had spies too who operated in the army, the Government, the districts and the villages. People had double or even triple roles. He did not now think that the British would have given his identity away. He did not know either how the Taliban found out his mobile numbers, although it is normal to give one’s number to a friend and for that number to be passed on. And A had used the numbers he used in his British work to ring his friends. A lot of people knew of those numbers.

29. In October 2014 his older brother called him to say that a man called O had been killed by the Taliban in their village. He had worked for the National Directorate of Security.

30. He still lived with his aunt and her family in Kabul. He only left to go to work in Kandahar where he received poor pay for his work as a bricklayer. In July 2015, he went back to his family home for Eid al-Fitr. He thought that being there for a short time posed no serious risk to him. The Taliban had not been back to look for him since either. But that did not mean that their grievances would be forgotten, but rather they would be passed on from commander to commander. His greatest fear for his family still in his village was that the Taliban would kidnap one of his brothers to force A to surrender to them or would kill the brother as revenge for A’s work. It would not happen yet to his younger brothers, although as they approached 16 it would. That is why his older brothers left the village for Lashkar Gah after the Taliban came to the house. Their wives and children still lived in that house, but not now the brothers, contrary to the letter of 10 July 2015. They only returned for a night or two. They had poorly paid jobs and insufficient earnings to rent a big enough house to accommodate their families.

31. Although Lashkar Gah was safer than Nad Ali, the Taliban still carried out attacks there and it would not be safe for A or his brothers to live there. Threats could not be reported to the Afghan Security Forces, because the Taliban controlled the area by night and many members of those forces sympathised with the Taliban anyway.

32. His brothers were separated from their families and not safe in Lashkar Gah all because of his work for the British. They had no jobs in Kabul to which they were intending to move. They could not move in with A’s aunt however, and they would all have to rent a house together, but they did not know how to get the money from work to pay for the rent of one large enough. A estimated they needed $400 a month

Draft 15 May 2023 09:46


K, A, B v SSHD

to rent a house with five rooms and $600 a month for food and other essential living expenses. His brothers could not sell their village house as they wanted to be able to return there one day. If he could not live and work in Kabul, he wanted to move to the UK. He helped the British to get the Taliban out of Helmand and because of the money. The Taliban had been very destructive, and he could not now go back to his home village.

33. In June 2016, DPG told GLD that A had recently been living ina restaurant hotel in Jalalabad, working wherever he could find a job because he could not find stable work in Kabul. His family remained, as did his brothers, in Helmand, the former in Nad Ali, the latter still in Lashkar Gah. His situation was precarious. In June 2018, DPG told GLD that A was still living in Jalalabad, working as a police officer with his family now living in Kabul.

Gists and responses

34. The open gist, following disclosure, dated 11 June 2018 was sent with a letter from GLD dated 11 June 2018 covering all three Claimants, inviting them to ascertain from each one “(a) all possible iterations of their names and (b) whether they are known by any other names/aliases.” On 7 August 2018, A confirmed that he had always been known by the same name that he had given to GLD and referring to one marginally different spelling. He was not aware of any other name or alternative spelling beyond that.

35. A brief gist dated 7 May 2017 simply stated that his assertions of threats from the Taliban were vague, unsupported and not accepted as credible. The open gist dated 11 June 2018 in respect of A, following the disclosure process, summarised the claim and asserted once more that the NCND policy applied. It was not admitted that A was at risk of reprisals and, although he might face threats to his security, his description of the risks was not reliable or accurate, nor was it accepted that any were linked to his asserted engagements as a CHIS. In particular, MOD assessed that A’s vague account of the key events, which he claimed demonstrated a threat based on his alleged work as a CHIS, was inaccurate and could not be relied on. The most significant events were not mistakes but deliberately untrue. Core parts of A’s account not accepted presently as credible, included his account of having received a series of threats to his life from the Taliban, none of which had been carried out and none described in any detail. The attack on A’s house in July 2014 after the Taliban are said to have identified him as a CHIS, for example, was not accepted. The vagueness of the threats lacked the hallmarks of an honest account of an individual facing serious and repeated threats to his life. The false assertions weakened the general credibility of those which could not be verified, such as the account of the murder of O. Efforts made to inquire into what A said had left MOD unable to establish the accuracy of any of the key features of A’s accounts of the threats, but many were so vaguely described that fruitful investigation was unlikely. The account of the threats in origin, number and extent was untrue, as was the account of receiving threats from the end of 2012 or thereabouts. Repeated threats, none of which were actually carried out, were inconsistent with his having been identified as an alleged CHIS some time ago. Nor was his conduct consistent with the behaviour which might be expected of someone in fear of their life from the Taliban. A’s inability to provide evidence of the threatening calls was not accepted, and it was assessed to be extremely unlikely that such evidence could not be provided to his solicitors if it

Draft 15 May 2023 09:46


K, A, B v SSHD

existed. While there might be risks to A’s security in Afghanistan to an extent, it was not accepted that such risks were due to his alleged role as a CHIS.

36. A responded on 20 July 2018 to this gist. He commented that he was greatly restrained in responding to the attacks on his accuracy and credibility without having the detailed basis for that. He had repeatedly offered to be interviewed by the Defendants, but they had declined that. He had endeavoured to be accurate at all times, although there had been difficulties in giving evidence which would have led to some inaccuracies which he had tried to correct. A said that there were no reasons why he might face threats to his security other than his work as a CHIS. His family stayed out of trouble and had no financial or other dealings that could cause those threats to arise. The fact that the Defendants had not been able to establish the accuracy of any of the key features of the account of the threats, showed that precautionary and protective measures should be therefore be given. He could not understand what evidence the Defendants would regard as corroborating his claim. He provided a further description of JT.

37. He then set out tabulated responses to what was specifically raised by GLD. He could not take further the account of his attack on his house in 2014 unless he knew why the Defendants did not believe him; he would not have left his house for Kabul but for this, and would be dead if he had stayed. He could not identify any other cause for this. He clarified the true name of the man referred to here as O. He said it should be verifiable by the Defendants. He maintained threats began around the end of 2012/early 2013. A had also been prepared to identify reductions in the threat to him, but he remained fearful that threats would be carried out in the future and his continuing survival did not prove his account to be untrue. He did not know what conduct of his was inconsistent with someone in fear of their life from the Taliban. He had received no kind of official threatening letter or text messages and he could not have recorded the phone calls or photographed their phone numbers. The Defendants had not identified the evidence he ought to have provided to his solicitors. As at July 2018, A was living in Kabul with his brothers and family as A had recently lost his job as a policeman in Jalalabad. He had felt that there was a risk in Kabul as he might be recognised by one of the many people from the Helmand province living or arriving in the area of Kabul where he had lived. He had not received threats since he changed his numbers and moved to Jalalabad, but believed that those threatening him would resume doing so were they to identify him or learn of his phone number. But his family had not received any threats since moving to Kabul. He could not go to Helmand.

38. The Defendants responded to this with a further statement dated 21 August 2018, gisted into the open evidence. Although the Defendants gave every allowance which they felt they properly could to the difficulties in taking his evidence, they maintained their assessment: the difficulties did not adequately account for the inconsistencies. A might face some risks but they were not due to his alleged engagement as a CHIS. No further material had been provided of substance. The account of the murder of O was not an allegation that O was an agent, or that his death was connected to A’s alleged work as a CHIS. O is said to have worked for the NDS which the Taliban hated; it is irrelevant to A’s claims, and no searches against that name were conducted. The response also said that if A had been identified as a CHIS and then targeted by the Taliban in the way he described, he would not be alive today.

Draft 15 May 2023 09:46


K, A, B v SSHD

39. On 7 September 2018, the Defendants replied to DPG’s request for further information. The sources of risk faced by A, other than those he asserted came from his alleged engagement as a CHIS, were those faced in a dangerous country, where there were a wide range of reasons why such threats might exist, as A accepted, though denying that they applied to him. The sort of further or corroborative evidence the Defendants expected A to have been able to provide would have been details of the numbers used in the telephone threats or evidence of the activity on his phone, even simply from keeping the phone or SIM card itself, given the importance to his account of telephone threats. Yet A’s second statement said that he threw them away. They would also expect greater precision in his account of the threatening incidents, and to provide some corroborative evidence from witnesses or a contemporaneous record.

40. One key feature of A’s account, as with the other Claimants, was that there were threats repeatedly made over a number of years, in his case from late 2012 or early 2013 to July 2015 and, although the number of threats made directly to him has, he said, since diminished, he claimed still to be at risk from the same threat as before. If so, the account of repeated threats, none of which were carried out, was inconsistent with his having been identified as an alleged CHIS some time ago.

41. His behaviour was not consistent with what might be expected of someone in fear of their life and receiving death threats from the Taliban. The paucity of the evidence of the threats allegedly faced is not consistent with someone being threatened in that way. Such a person would not have looked only to a legal process in England; the Defendants would assume that some attempt would be made and recorded to get local authorities to provide support and security. By way of corroboration of the threats, A could have written down the numbers calling him, the times and dates of the calls and retained any phones and SIM cards which would have held the calls.

42. Mr Owen’s specific concerns in relation to the Defendants’ assessment of A were: (1) no specific inconsistencies were identified; the diminution of threats over the years was not dealt with adequately; the Defendants had unrealistic expectations for corroboration, and of state authorities, where the Claimants had produced expert evidence; (2) the Defendants had not explained why they thought A was unreliable or inaccurate in his description of threats, whilst accepting that he might face some; (3) the Defendants made unrealistic assumptions about A: Mr Hundt explained the different culture and attitude towards record-keeping, in a largely oral culture; A should have been given an opportunity to respond to the responses in an interview with the Defendants, or a more generous threshold should have been adopted before the claims were dismissed; vagueness was no reason to discount evidence of incidents; (4) the Defendants gave no reason for disbelieving the attack on the house, and something must have been prompting A to move around, for which his explanation was plausible; he was trying to keep alive, rather than just looking to legal process for protection; the Defendants’ assessment was irrational; (5) the fact that the murder of O could not be verified is not evidence that it did not happen; the Defendants’ view that it was not relevant suggested that they were simply not taking a balanced view of the evidence.

43. I deal with these, so far as necessary, in the closed judgment.

Draft 15 May 2023 09:46


K, A, B v SSHD

CONFIDENTIAL ANNEX: B

B’s evidence about his claim

1. B is now about 38 years old, married with four children. His home village was in Nad Ali where, until recently, he lived with them, his two parents, his sister, four brothers and a daughter-in-law.

2. The Factual Annex to his second witness statement of 10 July 2015 stated that he had a civilian role with the Taliban for 4½ years when they were in power. Before that he had studied for 8 years in military madrassas which were Taliban recruiting centres. He knew one of those who were later to threaten him from that time. His father stopped him working for the Taliban once ISAF arrived in Helmand, and the ruthlessness of the Taliban persuaded him to help ISAF.

3. He said in his first statement that he started working for the Provincial Reconstruction Team (PRT) in 2009. He was a member of a local council or Jirga, which had about 45 members. He was head of its Security Committee, working to assist security by recruiting policemen. He persuaded many Jirga members to help the British. Many men joined the Afghan Local Police and in 2014 had become members of the Afghan National Police.

4. In 2009, when Nad Ali was surrounded by Taliban, the District Chief asked him to meet with the British. He believed this was the result of his work on the Jirga. He travelled to the Lashkar Gah PRT in around February 2009 where he met two or three foreigners and an interpreter, all in civilian clothes. He could only remember one name of a man he met later, called John. In his Factual Annex he referred to a “Jim”. The British had asked him at this meeting what he could do for them. He said he could find IEDs and enemy locations; he was ready to go to the enemy area as a beggar. He was enthusiastic about his work at that time. He was asked lots of questions about his background and family over 2 hours. Notes were made. They took his ID cards. His irises were scanned, and fingerprints were taken. In his Factual Annex, he said that they checked his background over the next three weeks, meeting him every three days. He showed them on a map where he lived. The British told him to tell no one of his activities, including his wife and brother. He did not tell his wife, nor his father, but he had given his father, in case things went wrong, the security code given to B by the British saying that he was working with the British on security issues, to serve his country. He set out the code in his evidence.

5. He would call the PRT to say he was coming in; he had a piece of paper to say that he was making a compensation claim, and he described how he would enter the PRT. Phones would be turned off during the meetings, and his phone would be checked, he added in the Factual Annex. He was given contact numbers to call with code names. He was also given two GPS machines and shown how to use them, which he still had at the time of his first statement. The British officers told him many times they would assist him if he were in danger.

6. The British officers told him to find out who was Taliban, to locate where Taliban were, where they were planning to attack and to find IEDs. Every few days they would call him and ask whether he had anything. He would then go to the PRT to tell

Draft 15 May 2023 09:46


K, A, B v SSHD

them about IEDs or a planned ambush. An interpreter was present. Notes were made of the conversation. He named one interpreter, a good friend, who called him not long before September 2014, to ask him questions. At the second meeting, B said the British gave him a paper which he no longer had. It would be dangerous to be caught with anything indicating he was working for the British. He had approximately 50 meetings with the British, working full-time and going whenever the British telephoned him. They became very comfortable with him.

7. In his Factual Annex, he identified the areas in which he worked, around which he travelled by motorbike. He described in greater detail some of the events and work he did in relation to IEDs and ambushes, helping British soldiers, and how he would explain his presence to the Taliban, or even complain to the Taliban about their searches of him. He also identified corrupt or fraudulent activity, whether involving the Taliban or fraudulent compensation claims. The British often thanked him for his work, preventing or reducing casualties; he always worked for the benefit of his handling team.

8. B said he had lots of friends within the Taliban regime because he used to work for a high-ranking mullah; this is what the British found useful. B had held senior positions in his area as part of the Taliban when the Taliban were in power. This gave him good contacts and he could work with the Taliban, but secretly pass information to the British. The Taliban, he said, would execute anyone caught doing this, so there was great risk to him and his family. He occasionally met officers in uniform. He could not remember many names beyond one in each of the PRTs. The amounts he was paid and the dates of payment varied. Sometimes he refused the money offered for fuel.

9. On one occasion, he devised a plan to recover binoculars left by a British soldier and found by the Taliban, for which he received a much more substantial sum than usual. He also gathered intelligence about Sangin. The British also requested him to travel outside his district to Kandahar and even to Quetta in Pakistan. He went to a long meeting at Kandahar Airport where he was asked by many for his advice on security in Helmand. He went to Quetta to discuss matters with his Taliban contacts there, in order to find out about their activities in Helmand, for which he was paid $200. On one occasion, after about a year, when he was in an area where there were many IEDs, the location of which he was trying to record on GPS, the Taliban stopped him and asked what his GPS machine was. They said they thought he was a government spy, but they let him go in response to him saying that such people could not enter the area. The brother of the Taliban showed him the IED locations so that he could get out safely. This enabled him to mark where the IEDs were on a map at the PRT, leading that night to a British forces raid. The British officers were pleased with his work and complimentary about it.

10. After he had been working for the British for six or seven months, the British promised him that he would be given money for a house in Lashkar Gah or Kabul, if it became too unsafe for him to continue living where he was. They said that he could call them day or night and they would defend him. He should not worry; they were working together to build the country. In his Factual Annex, he described them saying that he would have a good future, house and car, with his children going to school, and they would help him wherever he was; he would not have worked for them if they had said that they would only be there for a short while, and would then

Draft 15 May 2023 09:46


K, A, B v SSHD

turn off the phones. They told him that they would help him economically and with his security: he had saved British soldiers and tanks. These assurances gave him the confidence to carry on. He often asked them, when given new jobs, what would happen if he were caught, and the response was that they would relocate him elsewhere in Afghanistan, Kandahar or Kabul, or in a country nearby or the UK. He was told not to worry as, if the risks happened, these promises would be implemented, and so he felt bound to honour his obligation to continue to work for the British whom he trusted. The British said, according to his Factual Annex, that they would protect him, were he in danger, and successive teams had repeated this.

11. The threats began, he thought, in early 2011 and got worse over time. It was not safe for him and his family to remain in Nad Ali, but they had nowhere else to go. He had told his handling team many times about the threats; they were well aware of the danger he was in; sometimes they threatened to arrest those responsible, but B told them that as they were in Quetta, that would not be possible, so no serious action was taken. One Taliban member was arrested by the police and spent 18 months in prison but was then released.

12. He did risky work leading the British to a Taliban commander called JT, who had about 250 fighters. The British wanted him to join the peace process. B spent two months trying to make contact. He then asked JT to join the peace process with which the Nad Ali PRT commander was very pleased. The threats began around this time. (In his third witness statement he said that they began when JT was arrested, and not as he had said in his first statement). He spent a month in discussions with JT asking the British Government for support, a house and to pay his rent, but JT became angry at the small offer he received from the Governor, so he went to the Taliban in Quetta where JT named B to the Taliban leader there as a collaborator with the British in Nad Ali.

13. In his Factual Annex, B said that he became a member of the peace council at the request of the British along with 4 others. B had persuaded JT to come and talk to the British, the District Chief and the Provincial Governor, at Nad Ali PRT, escorting him to the PRT on two occasions. The British however did not move quickly enough on JT’s request for a house for him to leave the Taliban, so B found one for him, but continued to check on what he was doing. A month after the first meeting with the British, they detained JT without warning to B, and kept him for 30 days. They arrested him at the new house being built by B for the District Chief, where he had gone to spend the night with B. B had assured JT that it was safe to cross over from the Taliban. The four or five labourers working there for B were also arrested; B was the only one there who was not arrested, which made people suspicious that he had informed the British that JT was there. JT’s family started calling B, saying that he was responsible for handing him over to the British, and they would kill all of B’s family; although he thought initially that was just because of his involvement with the peace council. Later, B thought that they became sure that he was a spy.

14. In his Factual Annex, B said that shortly after the first threat from JT, B’s brother, AS, was shot and wounded, they thought by JT’s people: two people on a motorbike drove towards AS who was riding his motorbike and shot him; their faces were covered. B provided further details of this incident in his third witness statement. He explained in his third witness statement that one of his relations had seen two people on a

Draft 15 May 2023 09:46


K, A, B v SSHD

motorbike waiting at the roundabout with a gun for six days, after which AS was shot by them.

15. In his first statement, B also described another attack on his brother. His brother and brother in law were captured by the Taliban in early 2013 and held for 12 days because their captors told them of B’s involvement with the British. B’s response was to send elders of the community to tell the Taliban that it was only B, and not his relatives, who was working for the British. The Taliban decided they could not kill the brother but beat him severely with cables until he was permanently disabled. B said in his Factual Annex that this happened 4-5 months after the shooting incident on the motorbikes. It was JT’s people who had done it.

16. B’s first statement also referred briefly to two attacks on him. Late in 2013, an IED was set off about 10 metres from the gate of his home, killing the Taliban planting it. Not long before he made his first statement, in September 2014, he was shot at by Taliban on a motorbike; the local ANP checkpoint had refused to go after his assailants as they said they had no fuel.

17. In his second statement, B said that the NDS found out that JT had denounced B to the Taliban in Quetta. Both they and the District Chief advised him to leave Helmand. B said a friend of his sent his brother to B saying the Taliban in Quetta knew he was working with the foreigners and were planning against him. The local people began to suspect him of working for the foreigners and the Taliban spread this rumour further. However, this did not stop him obtaining information about the Taliban as the Taliban was still fractured, and he could get information from another group when he had a problem with one, despite the suspicions, and he still had strong friendships among the Taliban.

18. B said, in his second witness statement, that the first threatening telephone call came from a Taliban member, whom he named, who said that B had half a day left, and that he would “halal” B whose crime, he said, was to work for foreigners. He put this however at the time when JT had gone back to the Taliban. B believed that JT, and another Taliban whom he was persuading to join the peace process, were responsible for the threats, but neither were the one he named as making the first threat. He then named 5 Taliban members as among those who had made threats by phone; they were never anonymous.

19. The threats were mainly by phone from Afghan and Pakistan telephone numbers. He had saved some of the numbers on his phone. They varied from between two to three times a day, to up to three months without a call. He heard rumours that the Taliban had threatened to execute him as soon as they captured him. And another Taliban told him that a commander had told this acquaintance to kill B.

20. In his second statement, he said that he did not receive threats on the new number he used for his mobile phone, though he did if he used the old number. His brother would tell him, about once a week, that the Taliban were still looking for him; his relatives worked in fields in the Taliban areas. They heard rumours that the Taliban would kill him. B gave an example of what he was told. A man on a motorbike had given his father a piece of paper for B, which his brother read, and which said that B’s days were over.

Draft 15 May 2023 09:46


K, A, B v SSHD

21. In what B put at early 2013, one of the NDS in Lashkar Gah told him of the rumours they had heard that the Taliban were planning to kill him and so he should leave Helmand with his family. These rumours came from the Taliban in Quetta. He then spent 18 months in Kabul, but in April or May he had returned to his village as he had no money and could find no work in Kabul. Back in the village he continued to receive threats from the Taliban to kill him.

22. B described in his Factual Annex, how, notwithstanding what had happened over JT, B approached another Taliban commander, H, at his team’s request, to cajole him into joining the peace process. B said that he felt it his duty, and he was reassured that he would be protected. B had two meetings with the British at Kandahar; the second meeting, later than 2011 he now thought, was a long one. B found H after a month-long search. Later he met H in Quetta, for 2-3 hours; H agreed to think about it. They travelled to the Afghanistan border, together over 4 days. H then went to Afghanistan, and spoke with the British, who were very pleased with B’s work.

23. B said that he had one more meeting with his team after that. He then stopped working for the British in early 2013 after nearly four years. It simply happened when the British handlers stopped calling him without any warning, or information about security or risk. When he tried to make a further report, the phones were not working. A soldier at the PRT said that the team were not there anymore. The British were still in Nad Ali, for another 6-7 months. H got very angry with B over this lack of contact, and accused B of being a spy, and threatened him. JT was killed by a drone strike 5-6 months after this. The threats from H began after JT was wounded, but before he was killed. B’s only work thereafter, had been as a farmer and he found it hard to get any other job as people knew he had worked for the British.

24. Shortly before his second statement, when preparing to go to India to make a statement in connection with this case, he had gone home for a short while, and used his old phone number; a named Taliban rang to ask him whether this “kaffir” was going to India to collect his salary, but B said that no one knew he was going to India apart from his brother, who thought that it was for medical reasons. He had received further threats as well that he would be killed from named Taliban, who had threatened him before. He received threats about once a month.

25. He had taken a loan of $3,000. He only wanted the British to keep their promises to protect and compensate him for the damage working for them had caused. He was paying a high price for his work. He sought immediate assistance in obtaining funded secure guesthouse accommodation for himself and his family in Kabul. His immediate situation in the village was very insecure and he would go wherever he had security, but he could not feel fully secure in Lashkar Gah. He said the Taliban punished people who claimed compensation from foreign forces.

26. B said in his second statement that he had moved on two occasions, temporarily, to Kabul to escape threats from the Taliban but had moved back to his village a few days before making his first statement in September 2014. B left for Kabul, shortly after the shooting in July or August 2014, as I understand it, from behind the mosque wall. He stayed in many places in Kabul until his money ran out.

27. He had virtually no financial resources and had taken loans to pay for guest house accommodation in Kabul which had all been used up; his situation was very urgent.

Draft 15 May 2023 09:46


K, A, B v SSHD

They then returned to his father’s house in Nad Ali for a short time. But the family had thought that B’s presence put them all in danger, so he and his family moved out to his sister in law’s house in Lashkar Gah, with his married brother. B himself lived in Kabul, for around 3 months at a time before short visits home, where he still lived with his family and AS and his wife. B could not stay with them long because of the danger: when B was in Kabul, JT’s father and others who had threatened him stayed next door to B’s family house, and asked questions about where he was, telling him to get in contact. But as he could not stay in Kabul because of the cost, and they could not stay for long with his sister in law, his father in law had let them build a small house on his land outside the village. He sold his motorbike to raise the money to do so. His father in law had warned him that he would have to sell the land shortly which meant that they would lose this house.

28. The detailed request for information of B, following the disclosure hearing before Mitting J, sought details of his family, specific details of the threats he identified; who made them, by what means, the nature of the threats, the phone numbers from which and to which they were made, and the reasons for the threats, further details of the two incidents involving AS, including why the former was clearly by JT’s people, and of the two attacks on B. Details, with dates and addresses, of his movements and his family’s whereabouts over the last few years were also sought.

29. B replied to this request in a 3rd witness statement dated 5 October 2015. He referred to mistakes in his first 2 statements which arose because of communication difficulties over a bad and intermittent telephone line, and the problem of communicating via an interpreter in another country. There were also difficulties created by different ways for example of describing family relationships. B had evidence to support what he was saying, although he could not bring it with him and because it was too dangerous to do so; if Taliban stopped him they would kill him; if others stopped him they would know that he was wanted and would sell him to the Taliban. The materials he had were a GPS machine, an ID card in English given to him by the British, another card saying he had an ongoing compensation claim which he could show those who asked what he was doing at the PRT, and SIM cards with phone numbers and text messages containing some of the threats. He remembered part of one of the telephone numbers he used to call the British.

30. He provided considerable family details and a chronology, though stating that exact dates were difficult to give because dates and time were not considered in the same way, but he had given dates for example by relation to seasons, religious festivals or important events. Birthdays were not marked, most people did not know their date of birth, and so ages were a guess.

31. B added more detail about his involvement with JT and the threats in this third witness statement; the morning after the arrest, he had met JT’s father at the father’s request and was interrogated as to how this had all happened. B denied any involvement, and mentioned nothing of JT’s involvement in the peace process. JT’s father, said B, ordered two men that same day to kill him; he named the men. But a mutual friend of B and JT alerted him to where they were planning to kill him, and he avoided using the road. In the afternoon, the two would-be killers were killed by an ISAF helicopter. B explained that there had not been time to mention this in his earlier statement, but added in response to the later, more detailed open gist that he had reported these events to the British.

Draft 15 May 2023 09:46


K, A, B v SSHD

32. Also, that same day, W, a Taliban commander senior to JT, threatened to kill all B’s family for selling JT to the British and spying on him when he was in B’s house as a guest. A few days later, W’s Taliban commander, HK, telephoned B and threatened B and all his family that he could order them all to be executed, but, contrary to his usual practice, he was warning B so that B could get JT released. B told him that he would try. HK’s threats, to burn his family, were some of the worst he received. The threats continued mainly from W, but also from JT’s father, HK and F, throughout the time JT was imprisoned. B could not remember their numbers, but they had called him on his personal number and their numbers were in his SIM cards.

33. B explained to his team that he was under threat, that JT was still willing to be part of the peace process; JT was released, a month or so later, after various contacts confirmed that he was no longer part of the Taliban. The labourers had been released after a fortnight.

34. In his third statement, B said that JT was relieved to find B still alive, saying that his arrest was not B’s fault, and for a while this stopped the threats. After his release, B continued discussions with JT about taking part in the peace process. He said that he would stay with it, if promises to him were kept, but the team gave JT no money, and kept no promises; JT left for Pakistan, and told B, three weeks later, that he had had to join the Taliban again when they found him.

35. On his return from Pakistan, JT was shot from a helicopter and seriously wounded outside his house, not by the British but by some other armed force. But because of where he was shot, JT would think that B had given away his location. JT and others however thought that it was a British helicopter which had shot him. This was about 6 or 8 meetings before his work with the British stopped. B raised with them the threats that he was receiving, and JT started threatening him after JT had recovered from his injuries. B, in his third witness statement, provided the names and descriptions of 15 people who had threatened him after JT had been shot from the helicopter.

36. B met and spoke to JT’s father to explain that he was not responsible for the attack on JT. But he refused to accept that, accusing B of luring JT to a safe area for the British to kill him, and threatened him. 10 days later JT rang B from Pakistan, saying that if B came to Pakistan he would be blown up and his family burnt, as B was with the British. B said he learnt later that another Taliban commander had told JT that B was with the British.

37. In his third witness statement, B said that the incident in which his brother and brother in law were taken by JT’s people and the brother was beaten with cables, had happened before and not after the motor bike shooting incident, which he worked out would have been about 11-13 November 2012. He gave further and different details. 3 or 4 motor bikes, with 6-8 people on them, had surrounded AS and the brother in law near his sister’s house, and had then taken them to a mosque at a well-known roundabout he marked on a map.

38. Nor had they been held for 12 days but only a few hours. He did not know how that mistake had occurred in his first statement and in the Factual Annex, other than it might have been 12 days before the shooting or there were problems with the telephone; the reference to 4 months might have been because B said that AS was in hospital for 4 months afterwards. Nor had he told the elders that he worked for the

Draft 15 May 2023 09:46


K, A, B v SSHD

British; he had merely asked them to ask those who had taken his brother if his brother had committed a crime or if B had done so. The elders said that they were told AS had been taken because he was B’s brother, to which they had replied that if B had committed the crime, they could not take his brother for it, and so had to release him.

39. B said that it was clear that this was done by JT’s people, because JT thought that B had betrayed him to the British. B was getting many threats and was in hiding. B reported this to his team. At this, B’s father made him leave the house to avoid danger to other family members. B’s family remained while B went to Kabul. He responded in July 2018 to the open gist saying that there had been many witnesses to the kidnap and negotiations, but there was no public record because the authorities and reporters did not have access to these areas, where there were many such incidents.

40. JT’s father made regular telephone calls threatening his life, but the last one was February-March 2015. B had reported these threats to the British, who had promised that they would help him whenever he faced a threat, including relocation if necessary to Kabul, from where he could continue his work. This happened on more than one occasion, but he could not remember the details of who said it, as he had had so many meetings. But what they said encouraged him to continue work. B stopped leaving his house in the village until he moved to Kabul. It was no secret that the Quetta shura had decided that he should die.

41. In his third witness statement, B said that he had received hundreds of threats from many people over the last 4 to 5 years, and could not remember the details of them all. Most threats were made by telephone, some were text messages which he had on a SIM card at home, which was too dangerous to travel with.

42. B provided further detail of the IED outside his home in his third statement. It happened between the wounding and killing of JT, at B’s father’s house. JT’s people were trying to install it, a TV type of IED, in a tree, in the dark, when it exploded. The Taliban must have taken the body away, because there was no body, and only a 200m length of cable to connect to the detonator which he found after the explosion. B was sure that JT was targeting him. There was no one else near, and he and his family would have had to pass the spot shortly afterwards on the way to the mosque. He and his family had no problems with any one apart from JT. His reply to the open gist affirmed the accuracy of what he said. The Taliban had used IEDs against civilians on other occasions.

43. B also referred in his third statement to a further shooting incident on 30 September 2015, shortly before he made the statement. He had been to a relative near Nad Ali and was returning by day to Nad Ali, when he heard gunshots which he attributed to a wedding, but as his motorbike got closer, a farmer was waving his arms to alert B to that fact that it was B who was being shot at, and B managed to get away fast. These two shooting incidents occurred after he stopped working for the British, so they would not have known of them before B brought this case, according to his reply to the open gist.

44. By the time of his Factual Annex, B said that he could no longer live with his family because of his work with the British, he could not live in the family house, he had lost his reputation in the community; he now had to hide. In mid-2015, B was living in

Draft 15 May 2023 09:46


K, A, B v SSHD

Kabul in a restaurant hotel, where he and guests slept on the floor in the room where they ate. His brother sent him money he could ill afford, and the owner had lent him some, but B had no work or money. He could not farm the family land which he would inherit with his brothers. He felt safe enough in Kabul. He was not worried about reprisals from the time when he worked for the Taliban in Kabul. But he could not live in Helmand, where he was known well beyond his village, and where the Taliban had ordered that he be killed. It was now much more dangerous in Helmand apart from Lashkar Gah and government centres. He needed his family with him. Some police provided protection, but many were corrupt, drug addicts, selling equipment and uniforms to the Taliban, and were members of the Taliban or helping them in other ways.

45. The impact on him had been very big. In his second statement, he said that he wanted a nice house which he could rent with his family, at about $300 a month, with a small shop also at about $300 a month to provide an income with money to make it ready and then to stock it, between $1400-$3400. He would need $400 a month for the year before it turned in sufficient profit to support himself and his family. In his third statement, he said that he now had no money; he was away from his family and the life he had enjoyed in Nad Ali. He now had neither possessions of worth, nor respect. He lived like a beggar in Kabul. He would also need $400 to transport his family to Kabul.

46. B’s parents were living in Nad Ali with 3 of his brothers and one of his sisters in the family house. His wife had had mental problems caused by the stress of what had happened to B; but he could no longer afford the pills she took which helped her sleep. He had now had to tell her what he did, because she was so stressed, but she promised to tell no one else. His wife and children were living in Nad Ali with the brother, who had never recovered from being beaten and shot by the Taliban, and his wife. B could not afford to take his family to Kabul, and he could not live with his married sisters, unless their husbands invited her family members to live with them, which they would not do because they did not know why he could not live in his own village.

47. DPG, troubled by a possible implication from the appointment of separate Special Advocates that there were conflicts of interest, wrote a letter of 1 June 2018 to me, GLD and the Special Advocates, stating that B knew that K had made a claim because K, he thought, had mentioned it after the death of his son SN, who was married to B’s sister. This relationship had not been known to DPG before, they thought because of the transcription difficulties of names. Later, DPG confirmed that B had used no aliases.

48. B explained in his second statement how he had begun the claim. The District Chief knew of the threats, and put B in touch with a journalist he trusted. He met the journalist who put him in touch with English solicitors. Up till then, only the District Chief had known of his work. If his brother found out, the brother would refuse to help him; his brother thought that B suffered these threats because he was involved in “security issues on the local council and the peace council.”

Gists and replies

Draft 15 May 2023 09:46


K, A, B v SSHD

49. A short statement was supplied by GLD on 17 May 2017 affirming its NCND approach and its previous comment that material and core parts of the claim were assessed as untrue. These included the two shooting incidents of 2014 and 2015, and B’s account of the threats he faced from the Taliban. Following the disclosure hearing in relation to K, a longer gist, dated 11 June 2018 and applying the approach adopted in K’s case, was provided to B. It repeated the approach of NCND, and the rejection of B’s case as materially and deliberately untrue, rather than being errors of recollection or confusion.

50. The gist of the Defendants’ case identified core parts of B’s account which were not presently accepted as credible as including: (a) that the two people ordered by the man described by B as JT’s father to kill him, were killed the very same day by an ISAF air strike; (b) the vague account of the kidnapping of AS and the brother-in-law and the shooting of AS; (c) what was described in the gist as the inherently unlikely account of the accidental and premature IED explosion, both as an event in itself, and as a Taliban method of targeting those such as B; (d) the vague accounts of the two shooting incidents described as taking place in 2014 and 2015 and (e) the account of the threats by HK after JT was arrested.

51. B’s account of Taliban threats was not accepted because, at times while UK Armed Forces operated in Afghanistan, B had good relations with the Taliban and its local commanders, including JT, and at times B actively supported the Taliban. The falsity of some assertions and inconsistencies between B’s various accounts undermined the general credibility of other assertions including those which could not be verified, although the MoD had tried to make enquiries into the matters he raised; some were too vague for fruitful investigation to be likely. It concluded that B was not telling the truth about the origin, number and extent of threats he faced, or those he claimed he faced from the Taliban during 2011 to 2013. His account of repeated threats over a number of years by many people, none of which had actually been carried out, was inconsistent with his having been identified as an alleged CHIS, nor was his conduct consistent with what might be expected from someone receiving death threats from the Taliban. It was thought extremely unlikely that he would be unable to provide evidence of the calls or messages he has received from named people, if he had received them, given the length of time he had had in which to produce them.

52. The MoD accepted that there might be some risks to B’s security, but not that those risks were due to his alleged role as a CHIS. His stated role on the local council and the peace council would have been likely to draw him to the Taliban’s attention and his own involvement with the Taliban “would also likely have led to risks to his security.”

53. B responded to the various gists of November 2015, May 2017 and June 2018 in a statement dated 20 July 2018. He said he was unable to give an informed, meaningful and effective response because he was not given the reasons or evidential justification for the attacks on his accuracy and credibility. His offers to meet the Defendants for them to interview him had been rejected. He always tried to be accurate and truthful although there were difficulties, because of the lapse of time, failures of memory and the problems in the way his evidence was taken, which could have led to some inaccuracies. His position was that “the precautionary protective purpose of a risk assessment [in circumstances where the MOD had been unable to establish the accuracy of key features of his account of the threats he said he had received] requires

Draft 15 May 2023 09:46


K, A, B v SSHD

that protection be given.” The Defendants were being unrealistic in their unspecified requirement for corroborative evidence of his claims.

54. B stood by his account of the threats received in 2011-13. His survival to date should not cast doubt on the accuracy of the threats he received; his survival was in God’s hands. Many people knew of his role as a representative in the area, they discovered his secret and became a target for them all.

55. B denied that his role on the DCC and Peace Council, and his past relations with the Taliban caused the threats. His past association arose when the Taliban were in power in his area, and he had no choice. He had not supported or helped the Taliban after the Taliban government fell, and the British arrived in Helmand. He had some dealings with the Taliban, maintaining some contacts among his old acquaintances, but only in order to gather information for the British which they had appeared to accept in their dealings with him. If he had been working for the Taliban, the British could have arrested him. The threats arose because of what happened with JT whom B had motivated to engage with the Defendants; it was JT’s participation in the process which revealed to the Taliban that B was working for the British. If he had merely assisted the Afghan Government, he would not face these threats. He faced them because he is known as a spy and a traitor.

56. One British officer had accused him of supporting the Taliban, but he did not do so and told the officer so; he named the officer and described him; this officer had then reassured B that B “was a good man.” B claimed the British were making these unfair allegations to cover up their fault that the chance to bring JT over from the Taliban had been lost. He had only known JT through JT’s father, who had been a friend of B.

57. Since April 2018, B had been renting a one room house in a part of Lashkar Gah, safer than some but not as safe as the more expensive parts. Recently, someone who lived nearby had been shot at his door. He stayed inside most of the time going out only at night or in the evenings if possible; he did not work and relied on money from his brother. He had been unable to afford to stay in Kandahar. He had not received many threats since changing his phone number a year ago, but his brother in law had given him the number of someone who wanted to speak to him, who turned out to be a Taliban commander, MG, who swore at him and insulted him, so B put the phone down and changed his number. He provided the number called to DPG, set out in the reply to the gist. Only his mother and brother have his phone number, and not his father who is upset with him. His father and brother had been forced by the Taliban to swear in a written note that B was no longer their relative, the effect of which was to permit the Taliban to kill him. B’s brother told him that members of his old community were talking badly and threateningly of B. He wanted security advice and relocation away from Helmand.

58. The Defendants replied on 21 August 2018, gisted into the open evidence. They had made every proper allowance for the difficulties in the way of B giving instructions and his evidence being taken, but maintained their assessments, including their assessment of his association with the Taliban. The difficulties did not account adequately for the inconsistencies in B’s account. B might face some risks to his security, but they were not the consequence of his alleged engagement as a CHIS. The response to the gist did not provide further information to affect the assessments. What B said about the telephone contact between him and MG, and who had the

Draft 15 May 2023 09:46


K, A, B v SSHD

telephone numbers was not accepted as credible nor what he said about his father and brother being forced to swear that B was not their relative any more.

59. They concluded that it was inherently unlikely that B would have received threats from the Taliban because of his alleged engagement as a CHIS over such a period of time, without any being followed through. B stated that he had been the subject of failed attempts at reprisals, yet they thought that none of the events he described were credible. If he had been identified as a CHIS, and then targeted by the Taliban in the way he described, he would not be alive today.

60. The Defendants, responding on 7 September 2018 to the request for further information dated 21 August 2018 about the sort of corroborative evidence of threats they would have expected, stated that this was noting down the telephone numbers with times and dates, and the retention of the phone and SIM card. They also would have expected to see some form of official report from the local authorities in response to the incidents B described.

61. Mr Owen expressed specific concerns in relation to the Defendants’ assessment of B from the response to the request for further information: (1) the same points about vagueness and the possibility of investigation, verifiability, inconsistency, accuracy of times and dates in an oral culture, and official reports from those unlikely to assist, as supported by Mr Hundt and expert evidence, applied to B as well; (2) B’s association with the Taliban could only provide an answer to the threats if the Defendants were sure that that was the only reason for them, whereas it was difficult to separate his various roles and be sure “that threats are attributable to a role which has no relation to the overt or covert work he carried out for the British.”

62. These issues have to be dealt with in the closed judgment.

Addendum

63. On 15 March 2019, DPG wrote to the GLD, copying me in, saying that B’s brother, a school teacher in an area DPG described as “contested by the Taliban and Afghan Government”, had been kidnapped and held by the Taliban for 3 days before being released, badly beaten. His release was obtained by the intervention of teachers and elders. B was living in Nad Ali but has moved to Kandahar, again to live with relatives, as a result of this event. B was told by his brother that he had been kidnapped because of “B’s actions”, unspecified. They told a friend of B’s brother who was with the brother at the time that B worked with the Americans and they wanted B before they would release his brother. The Taliban had issued a letter two years before requiring the brother to appear before it, but without stating a reason or referring to B. The brother was told that his captors had asked about B, apparently having believed that B was dead, but then hearing that he was alive but in hiding. DPG said that B believed that the incident was “part of an increase in Taliban activity due to possible peace negotiations… as a means to gain political advantage.” DPG added that it “also demonstrates the ongoing threat against him from the Taliban” for the reasons upon which these proceedings are based. Further details and documentary support were provided on 3 May 2019 in response to the Defendants’ request, which I have incorporated above.

Draft 15 May 2023 09:46


K, A, B v SSHD

64. The Defendants replied on 21 May 2019; there was no closed reply or submission. It repeated acceptance of some risk to B, attributing that to his role on the local council and peace council, and not to his alleged work as a CHIS, along with his own involvement with the Taliban. It concluded that there was nothing in the evidence provided “to demonstrate that the alleged kidnapping of B’s brother was caused by B’s alleged role as a CHIS….” Their reasons appear to be that, if the incident occurred, the reasons given for it being targeted at B did not identify anything to do with his alleged work as a CHIS, and that it was inherently unlikely that the brother would have been released, without B having been detained as they apparently intended.

65. DPG submitted that the incident supported the fears and claims made by B of risks he faced, as enduring and serious. The Defendants had not disputed the incident as described, but had continued, taking “unduly forensic points”, to require an unduly high standard of proof of causation of a link to the alleged role as a CHIS, it was wrong to require the evidence to “demonstrate” the link or be discounted, when the appropriate approach to a protective claim should be akin to that of an asylum claim.

66. I do not propose to recap the issues I have already dealt with in open or closed, nor do I deal with this event in closed. I shall assume that the Defendants do accept or are prepared to assume that the incident took place as described. Taken by itself, it cannot be said that it would require the Defendants rationally to accept a causal link, in any form or on any reasonable approach to risk assessment, between B’s alleged work as a CHIS and the threat or risk faced, for the reasons given by the Defendants. The evidence however has to be seen in conjunction with the evidence and conclusions reached in the open and closed judgments, rather than simply on its own. As I have said, I am cautious about simply saying that it does not cause me to change my mind. I have considered it with the other material, but it simply is not of the strength rationally to warrant let alone require, a different conclusion to the assessment, which was not close to a tipping point in itself or as a matter of careful scrutiny for serious flaws.

Draft 15 May 2023 09:46