Claim Nos: CO/6019/2008 and CO/2175/2008

Claim Nos: CO/6019/2008 and CO/2175/2008

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

BETWEEN:

THE QUEEN

On the application of

AA, CK and WA

Claimants

-and-

(1) SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS

First Defendant

-and-

(2) SECRETARY OF STATE FOR DEFENCE

Second Defendant

SKELETON ARGUMENT ON BEHALF OF THE CLAIMANTS

(For hearing of renewed application for permission, 10 and 11 September 2008)

Introduction

1. The Claimants are all Iraqi nationals. They seek to challenge the legality of various aspects of the First Defendant’s scheme of ex gratia assistance for Iraqi nationals who work or have worked for British armed forces and civilian missions in Iraq, known as the Locally Employed Staff Assistance Scheme (the “Scheme”). The Scheme is administered by the Second Defendant.. Permission was refused in the case of WA on the papers by Stanley Burnton J on 9 April 2008. Determination of permission in the cases of CK and AA was adjourned to an oral hearing the cases were joined with the WA case by order of Silber J on 27 June 2008.

Factual Background

1. The full factual background relevant to the three Appellants is set out in the Claim Forms and Statements of Facts and Grounds of Claim. However, in summary, the relevant facts are as follows. Mr WA worked as an interpreter for the British Army in Iraq for a period of approximately seven months between 2005 and 2006. In spring 2006 whilst employed by the British Army, he was travelling with two Iraqi colleagues in a civilian car, when they were shot at. The car was hit five times and the rear windscreen destroyed, although no passengers were hurt. He managed to escape. Later, in March 2006, he received two threatening text messages. They were sent anonymously. They made it clear that the sender knew who Mr WA was, where he worked and even the colour of the blankets on his bed. He was told that he would be killed if he did not stop working for the British and leave Basra. In April 2006, a friend and colleague was killed. Mr WA initially stopped working for the British Army and, after a brief return to work, left his employment altogether following his participation in a raid on a Mahdi army member. He subsequently left Iraq and fled to Syria with his family. He was recognised there as a refugee by UNHCR.

1. Mr AA worked as an interpreter for the British Army in Iraq, for a period of approximately five months between late November 2006 and April 2007. His father also worked as an interpreter for the British Army. On 26 April 2007, his father was abducted on his way home from work, tortured and murdered. Following this event, Mr AA received several anonymous threats as a result of his connections with the British Army. He was told that they had taken one and now they would take the other. His father’s purse and other items were thrown into the family garden to show that the militia knew where Mr AA lived. On occasions he received telephone calls during which a tape recording of the torture and murder of his father was replayed to him. He fled to Syria and has since been recognised there as a refugee by UNHCR.

1. Mr CK worked for one year from June 2003 as a laundry assistant for the British army. He then worked from summer 2004 to summer 2006 for Crown Agents as a laundry assistant at the British Consulate. From summer 2006 to March 2007 he continued to work as a laundry assistant at the British Consulate, but under a contract with a company called Kellogg Brown Root. In October 2006, the car he was travelling in on the way home from work was chased by a suspicious vehicle. He was shot in the leg and his car crashed. In March 2007, unidentified individuals fired machine guns into his house from the street. Neighbours later told him that they had seen a suspicious vehicle travelling up and down the street outside his house. One of his colleagues was tortured and shot by militia. He subsequently ceased his employment because of concerns for his safety.

1. The three Appellants made applications under the Scheme. They were all rejected. In the case of Mr WA and Mr AA they were rejected because they had not accumulated 12 months’ service for the British Armed Forces. In the case of Mr CK, he was rejected because he was not an employee of the British Army or other relevant organisations. In their Pre-Action Protocol Response, the Respondents have also argued that CK’s position was not of a suitable status for consideration under the Scheme.

The Creation and Content of the Scheme

1. During summer 2007, there was considerable domestic and international criticism about the British Government’s treatment of those Iraqi nationals who had formerly worked for the British armed forces in Iraq. On 8 August 2007, the Prime Minister announced a review of the Government’s assistance to locally engaged staff in Iraq. On the same day, Mr Des Browne, the Second Defendant, was reported in a BBC news article as stating that the government took its “duty of care very seriously”. In an interview on the same day with the Today programme on Radio 4, when asked to define what was meant by “duty of care”, he stated that it meant “we have to care for people and we have a duty to do that because of our particular relationship with them”. It is clear from these articles that a major part of the reason for the introduction of the Scheme in October 2007 was the significant level of risks that the interpreters were suffering.

1. On 9 October 2007, the First Defendant announced the Scheme by way of a statement in Parliament (Hansard, columns 27WS-28WS). At that stage, the broad outline of the Scheme was set out. It was stated that more details would be given before the end of the month.

1. Further details of the Scheme were announced in a parliamentary statement by the Defendant on 30 October 2007. In summary, the Scheme offers two forms of assistance to qualifying former staff members: either a one-off package of financial assistance or resettlement in the United Kingdom (“UK”), together with their dependents, via the Gateway refugee resettlement programme. There are three qualifying criteria, namely: work as an interpreter, translator or similar profession requiring the regular use of written or spoken English; satisfactory completion of twelve months’ service; and employment on or after 1 January 2005 but before 8 August 2007.

1. The detailed version of the Scheme announced on 30 October 2007 was, so far as is relevant, in the following terms:

“In designing this policy, interested Departments have taken into account a number of factors. As I made clear in my statement of 9 October, we owe our Iraqi staff an enormous debt of gratitude for their dedicated service. HMG has directly employed many thousands of Iraqis since 2003 and has had indirect employment relationships with many more. Both fairness and realism demand that we focus on that sub-set of staff who have had the closest and most sustained association with us, in circumstances which we judge to be uniquely difficult. We have therefore established clear and transparent eligibility criteria which are, as far as possible, objective in nature.

In addition, the operational effectiveness of our armed forces and civilian missions, which depends in large part on the continued contribution of our Iraqi staff, must continue to be paramount. We need to preserve our ability to recruit and retain qualified Iraqi staff as we continue to discharge the obligations and responsibilities set out in the Prime Minister’s statement of 8 October. Both the overall policy, and the design of the scheme in respect of serving staff, have been decided with this in mind.

Finally, we have taken into account the need to ensure that any assistance scheme, in particular in respect of admission to or resettlement in the UK, is practical, realistic and preserves the integrity of wider immigration and asylum policy. For these reasons, we have sought to ensure that admission to the UK is managed as far as possible in line with existing processes and programmes.

The assistance detailed in this statement is offered ex gratia and goes above and beyond the confines of what is lawfully or contractually required. It does not recognise an obligation, or imply a commitment, to assist locally-employed staff in other countries or theatres of operation, past, present or future. It reflects our judgement that the circumstances in which Iraqi locally-employed staff have served have been uniquely difficult.

Categories of staff

Assistance will be offered to Iraqi nationals who meet the eligibility criteria set out below and who work, or have worked, in Iraq in the following capacities:

as direct employees of the UK Armed Forces or the Ministry of Defence

on Letters of Appointment from the British Embassy in Baghdad or the British Embassy Offices in Basra and the Kurdistan Region;

as direct employees of DFID or the British Council;

and to contracted staff who work or have worked in Iraq in the following capacities, provided that such staff worked in particularly close association with the UK as an integral and visible part of HMG operations, including having regular, substantial and sustained contact with UK official personnel and regular, substantial and sustained attendance at UK official sites:

under the direct authority of the head of the Basra Provincial Reconstruction Team;

for the British civilian police mission, or for international contractors engaged by HMG to carry out police training programmes; or

for DFID’s Centre of Government, Ministry of Interior Capacity Building, Civil Society, Economic Reform, Infrastructure Services or Governorate Capacity Building Programmes.

Eligibility criteria for serving staff

[…]

Forms of assistance for serving staff

[…]

a one-off package of financial assistance. Eligible staff who choose this option will receive a payment equivalent to one month’s salary for every two months that they were employed, up to a maximum of 12 months’ salary. In addition they may be able to claim 10 per cent. of the total sum for each dependant as defined below, up to a maximum of five dependants. Under this formula, the maximum payment would be 18 months’ salary, and the minimum six months; or

Exceptional leave outside the Immigration Rules. […] or

the opportunity of resettlement in the UK through the UK’s Gateway refugee resettlement programme. Provision has been made within the global Gateway programme for a significant number of places for Iraqi refugees in third countries, who are in need of resettlement, to be resettled to the UK. These places will include up to 600 places for staff and dependants who meet the criteria. Staff and their dependants wishing to avail themselves of this opportunity would need to qualify as refugees under the 1951 Convention in a third country, and to meet the published criteria for Gateway resettlement. A package of financial assistance will be provided to those who are considered for resettlement under Gateway in order to allow them to support themselves during the screening process in a third country. Resettlement in the UK under the Gateway programme includes a full reception and social integration package.

Procedures for serving staff to apply

[…]

Eligibility criteria for former staff

Staff who formerly worked for HMG in the capacities set out above will be able to apply for assistance provided that they fulfil all of the following criteria:

they worked as interpreters/translators, or in similarly skilled or professional roles necessitating the regular use of written or spoken English; and

they satisfactorily completed a minimum of 12 months’ service (in this context, satisfactory means that they were not dismissed for misconduct or similar reasons); and

they were in our employ on or after 1 January 2005 (but before 8 August 2007).

We may review these criteria for former staff in the light of experience.

Forms of assistance for former staff

Former staff who meet the above criteria will be able to apply for a one-off package of financial assistance, as set out above; or to avail themselves of the opportunity for resettlement in the UK, together with their dependents, via the Gateway refugee resettlement programme as set out above. Having taken one package they will not be eligible to apply for other forms of assistance.

[…]”

1. The Scheme went on to deal with publicity issues and the definition of dependants.

Grounds of Claim

1. The Scheme and decisions taken under it in relation to the Claimants’ cases are unlawful because:
2. The twelve-month minimum service requirement is irrational, unfair, and disproportionate, and the decisions taken on Mr WA’s and Mr CK’s cases are an unlawful fetter of discretion, irrational, unfair, and disproportionate;
3. The requirement to have worked only for specified organisations is irrational, unfair, discriminatory and disproportionate, and the decision taken on Mr CK’s case is an unlawful fetter of discretion, irrational, unfair, and disproportionate; and
4. The application of the Scheme only to employment after 1 January 2005 is irrational, unfair and disproportionate, and the decision taken on Mr CK’s case is an unlawful fetter of discretion, irrational, unfair, and disproportionate.

1. In addition, in their response dated 6 June 2008 to the Claimants’ Pre-Action Protocol letter the Defendants appear to raise against Mr CK the fact that he was not employed as an interpreter/translator or in a similarly skilled or professional role necessitating the regular use or written or spoken English. It is the Claimants’ case that it is not permissible for the Defendants now to rely on this matter, as it was not relied on in the decision in his case as a reason to reject his application. In any event and for the avoidance of doubt, if the Defendants do formally seek to rely on this ground, then it is the Claimants’ case that such a criterion is itself irrational, unfair and disproportionate and/or alternatively that reliance on the strict application of such a criterion would be an unlawful fetter of discretion, irrational unfair and disproportionate in the circumstances of Mr CK’s case.

1. Before considering the substantive issues raised by the claims, three important preliminary points of principle arise:
2. The standard of review;
3. The applicability of proportionality as a head of review; and
4. The correct approach to the interpretation of the policy.

The Correct Test – Anxious Scrutiny

1. There is an initial disagreement between the parties as to the standard of review to be applied to the instant cases. It is the Claimants’ case that, since fundamental rights are in issue, their claims must be examined with the most anxious scrutiny. In each of the present cases the Claimants’ right to life is directly affected by the outcome of their applications. The Defendants argue that there is no threat to the Claimants’ fundamental rights, and in particular to their rights under the European Convention on Human Rights (the “Convention”), and so the anxious scrutiny standard of review does not apply.

1. The fact that the Claimants have not made a direct claim based on rights under the Convention says nothing about whether or not their fundamental rights are engaged and, hence, whether anxious scrutiny should be applied. Per Laws LJ in R (on the application of Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840, at 849A-B, paragraph 19:

“There is, rather, what may be called a sliding scale of review; the graver the impact of the decision in question upon the individual affected by it, the more substantial the justification that will be required. It is in the nature of the human condition that cases where, objectively, the individual is more gravely affected will be those where what we have come to call his fundamental rights are or are said to be put in jeopardy. In the present case, whether or not the Convention is under consideration, any reasonable person will at once recognise the right to family life, exemplified in the right of the parties to a genuine marriage to cohabit without any undue interference, as being in the nature of a fundamental right (I prefer the expression fundamental freedom).”

1. For the purposes of the present cases, three points emerge from this passage:
2. Whether or not the Convention is being considered, fundamental rights may still be engaged;
3. The question to be asked is whether fundamental rights are recognisable as being in play, irrespective of how they arise; and
4. Where they are in play, anxious scrutiny must be applied.

1. In the present case, although the Claimants do not advance a case under the Convention, the right to life and right to freedom from torture are instantly recognisable as being engaged by the claims. The acceptance of the Claimants onto the Scheme is in issue. They have applied because they previously worked for the British armed forces in Iraq. This work gave rise to a real risk of death and danger to life and limb, and continues to give rise to such a risk. At present, they are living in a precarious situation. They have no status in Syria. Although recognised as mandate refugees by UNHCR[1], they may be returned to Iraq at any time by the Syrian authorities. If this happens, their lives will once again be in grave danger. They receive no support in Syria and are prohibited from working. Their acceptance onto the Scheme is therefore vital in ensuring their safety and continued survival. It is directly relevant to the determination of their right to life and right to freedom from torture and inhuman and degrading treatment. Accordingly, it engages the more intensive anxious scrutiny approach.

Proportionality