No Man Left Behind: The Uncertain Future of Afghan Interpreters
By Dr. Noelle Quenivet. ILHRU. UWE, Bristol
The BBC has reported that interpreters who work(ed) for British forces deployed in Afghanistan will not have access to an assistance package deal including resettlement in the United Kingdom. This decision has angered a number of key figures dismayed at the fact that the UK is seemingly abandoning its interpreters to the mercy of the Taliban. Whilst there might be a moral obligation to assist such individuals, the question is whether there is a legal obligation to do so.
It might be argued that there is an obligation based on customary law (practice and opinio juris) on the UK to offer assistance to these individuals. Practice shows that many States involved in the operations in Iraq granted translators and other ‘locally engaged staff’ the right to resettle in the country whose forces they had assisted. The UK established a specific scheme that offered a choice between 1. a one-off package of financial assistance, 2. exceptional indefinite leave to enter the UK together with assistance with relocation and a reception and integration package or 3. resettlement in the UK through the UK’s Gateway refugee resettlement programme. More recently, NATO States taking part in the operations in Afghanistan have offered specific assistance to interpreters working for their troops. For example, the US allows Iraqi and Afghan interpreters to apply for one of the two Special Immigrant Visas, one specifically dedicated to translators and interpreters (See Section 1059 of the National Defense Authorization Act)and another for individuals working for or on behalf of the US government either in Iraq or in Afghanistan. Such individuals can also apply for refugee status under the US Refugee Assistance Program. In contrast, the UK has not yet extended its Iraqi resettlement scheme to Afghan personnel and has so far opted for an individualised approach. In response to a MP question on the protection of Afghan interpreters, Philip Hammond replied that ‘[t]he plan for post-2014 has to include […] a solution for those who have served the British forces and who might be at risk as a result’ and more recently Lord Taylor of Holbeach (The Parliamentary Under-Secretary of State, Home Office) confirmed that ‘work is progressing on reviewing how to make appropriate provision to support locally employed civilians as we draw down our combat mission in Afghanistan’ (See also the response of Lord Astor of Hever, The Parliamentary Under-Secretary of State, Ministry of Defence). Contrary to what is reported in the press, a number of States (Germany, Sweden and Denmark) and not only the UK have not yet opted for a specific scheme for Afghan translators but require such individuals to apply through the usual asylum procedure. Consequently there is no established practice in relation to the creation of specific procedures for translators working in armed conflicts.
Even if such a practice could be established, it is hard to prove the opinio juris, i.e. the belief that an action was undertaken out of legal duty (North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark and Federal Republic of Germany v The Netherlands),  ICJ Rep 3, para 77). States founded such schemes on humanitarian grounds and did not legally feel obliged to do so. The UK had very clearly indicated in 2007 that ‘[t]he 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.’ Moreover, the use of ‘Special Immigration Visas’ reveal that the US schemes, besides being specific to personnel working in delimited territorial areas, were a one-off, a humanitarian gesture. As a result there is no customary law obliging the UK to establish a special scheme for Afghan translators.
Likewise, treaty law does not compel the United Kingdom to accept individuals en masse. Indeed, refugee status, as spelled out in the 1951 Convention and its 1967 Protocol, is granted on an individual basis. Whereas the 1933 Convention relating to the International Status of Refugees adopted a collective or group approach to defining refugees (though only relating to specific groups), the 1951 Convention clearly opts for an individualised definition of a refugee using the words ‘any person who’.
No doubt, the UK has decided to go down that road: referring expressly to Afghan personnel, Lord Taylor Holbeach explained that ‘[a]sylum claims may be considered only where applicants are outside their country of origin, but any asylum claim made in the UK will be considered on its individual merits and protection offered to those who are found to be at genuine risk.’ Article 1(A)(2) of the 1951 Geneva Convention spells out the requirement that an individual person must fulfil to be deemed a refugee. First, the person must prove that he/she has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and, second, the person must be outside the country of his/her nationality and unable/unwilling to avail him/herself of the protection of that country.
The individual must show that he/she is being persecuted for reasons that relate to him/her and not simply appurtenance to a group at risk. He/she must provide evidence that his/her life or physical/mental integrity is at stake. General threats made against Afghans working for the British armed forces or even examples of interpreter being targeted (see examples in footnotes 37 and 38 in UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010) are not viewed as individualised though the UNHCR Guidelines declare that translators fall within a potential risk category and their claims require particularly careful examination (at 3). For example, after producing significant new evidence an Afghan interpreter was granted asylum in the UK. In contrast, the story of B., who applied to the European Court of Human Rights and whose asylum claim in the UK was rejected, was not deemed credible by either the British authorities or the ECtHR. Evidence of individual persecution is key.
The second hurdle is that ‘the Convention was exclusively directed to those who are “outside the country” of their nationality […]. It is only to persons meeting that definition, expressed in article 1A(2) of the Convention, that the Convention applies at all, unless they have been considered to be refugees under earlier arrangements.’ (R. v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)  UKHL 55 Lord Bingham of Cornhill para 15). Many of these interpreters are currently residing in Afghanistan and are therefore unable to claim asylum based on the 1951 Convention.
Recently, two individuals who worked as a driver for the United Nations and a translator for the American armed forces respectively applied to the ECtHR following a decision of the UK to expel them. In H. and B. v The United Kingdom the Court explained that the test was one of assessing whether there are substantial grounds for believing that the applicants face a real risk of being subjected to treatment contrary to Article 3. The Court stated in plain language that it is ‘not persuaded that the applicants have established that everyone with connections to the UN or the US forces, even in Kabul, can be considered to be at real risk of treatment contrary to Article 3 regardless of their profile or whether or not they continue to work for the international community’ (para. 100). In other words Afghans having worked for foreign armed forces are not automatically at risk. This unfortunately supports the decision of the United Kingdom and other European States to proceed on a case-by-case basis when examining the claims of Afghan interpreter.
It follows that there is no obligation on the UK to establish such a scheme under either general international law, refugee law or European human rights law.