AK (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Storey,Upper Tribunal,Re |
| Judgment Date | 15 March 2012 |
| Neutral Citation | [2012] UKUT 163 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 15 March 2012 |
[2012] UKUT 163 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Allen
UPPER TRIBUNAL JUDGE Dawson
For the Appellant: Mr S Vokes and Ms E Rutherford, instructed by Blakemores Solicitors
For the Respondent: Mr D Blundell instructed by Treasury Solicitor
AK (Article 15(c)) Afghanistan CG
(i) The Tribunal continues to regard as correct the summary of legal principles governing Article 15(c) of the Refugee Qualification Directive as set out in HM and others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) and more recently in AMM and Others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) and MK (documents — relocation) Iraq CG [2012] UKUT 00126 (IAC) .
(ii) The need, when dealing with asylum-related claims based wholly or significantly on risks arising from situations of armed conflict and indiscriminate violence, to assess whether Article 15(c) of the Qualification Directive is engaged, should not lead to judicial or other decision-makers going straight to Article 15(c). The normal course should be to deal with the issue of refugee eligibility, subsidiary (humanitarian) protection eligibility and Article 3 ECHR in that order.
(iii) One relevant factor when deciding what weight to attach to a judgment of the European Court of Human Rights (ECtHR) that sets out findings on general country condition in asylum-related cases, will be the extent to which the Court had before it comprehensive COI (Country of Origin Information). However, even if there is a recent such ECtHR judgement based on comprehensive COI, the Tribunal is not bound to reach the same findings: see AMM , para 115.
(iv) There may be a useful role in country guidance cases for reports by COI (Country of Origin) analysts/consultants, subject to such reports adhering to certain basic standards. Such a role is distinct from that a country expert.
(i) This decision replaces GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 as current country guidance on the applicability of Article 15(c) to the on-going armed conflict in Afghanistan. The country guidance given in AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC) , insofar as it relates to unattended children, remains unaffected by this decision.
(ii) Despite a rise in the number of civilian deaths and casualties and (particularly in the 2010–2011 period) an expansion of the geographical scope of the armed conflict in Afghanistan, the level of indiscriminate violence in that country taken as a whole is not at such a high level as to mean that, within the meaning of Article 15(c) of the Qualification Directive, a civilian, solely by being present in the country, faces a real risk which threatens his life or person.
(iii) Nor is the level of indiscriminate violence, even in the provinces worst affected by the violence (which may now be taken to include Ghazni but not to include Kabul), at such a level.
(iv) Whilst when assessing a claim in the context of Article 15(c) in which the respondent asserts that Kabul city would be a viable internal relocation alternative, it is necessary to take into account (both in assessing “safety” and reasonableness”) not only the level of violence in that city but also the difficulties experienced by that city's poor and also the many Internally Displaced Persons (IDPs) living there, these considerations will not in general make return to Kabul unsafe or unreasonable.
(v) Nevertheless, this position is qualified (both in relation to Kabul and other potential places of internal relocation) for certain categories of women. The purport of the current Home Office OGN on Afghanistan is that whilst women with a male support network may be able to relocate internally, “…it would be unreasonable to expect lone women and female heads of household to relocate internally” (February 2012 OGN, 3.10.8) and the Tribunal sees no basis for taking a different view.
| GLOSSARY | Pages 7 – 8 |
| Paragraphs | |
| INTRODUCTION | 1 – 3 |
| The Appellant's Case | 4 – 5 |
| Procedural History | 6 – 8 |
| A. THE EVIDENCE | |
| The Expert Evidence | 9 |
| Dr Seddon | 10 – 12 |
| Dr Giustozzi | 13 – 16 |
| The ARC Evidence | |
| (a) The Asylum Research Consultancy (ARC) Report, 2012 | 17 – 25 |
| (b) Oral evidence of Ms Stephanie Huber | 26 – 27 |
| Background Evidence | 28 |
| Parties to the conflict | |
| (a) Government and pro-government actors | 29 – 31 |
| (b) The Insurgents | 32 – 35 |
| Causes of the conflict | 36 |
| Types and indices of violence | 37 – 45 |
| Levels of violence: | |
| (a) Civilian casualties | 46 – 50 |
| (b) Targeting of civilians | 51 |
| (c) Targeted categories of civilians | 52 – 55 |
| (d) Combatant casualties | 56 |
| Comparison with other conflicts | 57 – 59 |
| Protection | 60 – 61 |
| Corruption | 62 |
| Socio-economic conditions/IDPs | 63 – 69 |
| Humanitarian aid | 70 – 72 |
| Provincial level: | 73 – 76 |
| (a) Kabul | 77 – 79 |
| IDPs in Kabul | 80 |
| (b) Ghazni | 81 – 83 |
| Returns packages | 84 – 85 |
| UNHCR position | 86 – 89 |
| UKBA Afghanistan OGN v9, 30 February 2011 | 90 – 92 |
| Tribunal country guidance and related domestic case law | 93 – 99 |
| Foreign cases: | |
| ECtHR: | 100 |
| (a) Case of N v Sweden | 100 |
| (b) Case of Husseini v UK | 101 |
| (c) JH v UK | 101 |
| Leading Swiss cases on Article 15(c) and Afghanistan | 102 – 104 |
| Other national decisions | 105 – 110 |
| B. LEGAL FRAMEWORK | 111 – 114 |
| C. SUBMISSIONS | |
| Mr Vokes and Ms Rutherfords' written submissions | 115 – 120 |
| Mr Vokes' oral submissions | 121 – 132 |
| Mr Blundell's written submissions | 133 – 138 |
| Mr Blundell's oral submissions | 139 – 152 |
| D. OUR ASSESSMENT | |
| (a) General | |
| Initial observations | 153 – 161 |
| The inclusive approach | 162 – 164 |
| The expert evidence: | |
| Dr Seddon | 165 – 173 |
| Dr Giustozzi | 174 – 176 |
| The ARC evidence | 177 – 186 |
| Afghanistan as a whole | 187 – 189 |
| UNHCR | 190 – 193 |
| Decisions by other courts in Europe | 194 – 207 |
| Enhanced risk categories | 208 – 209 |
| Relevance of other metrics | 210 – 212 |
| IDPs | 213 – 214 |
| The situation province-by-province | 215 – 226 |
| Internal relocation | 227 – 242 |
| Kabul | 243 |
| Ghazi | 244 |
| Internal travel | 245 |
| Previous country guidance | 246 – 247 |
| The future situation | 248 |
| General Conclusions | 249 |
| (b) The Appellant's Case | 250 – 254 |
| APPENDICES | |
| Appendix A | Pages 79 – 81 |
| The error of law decision | |
| Appendix B | Pages 82 – 85 |
| List of Background Country Information (COI) Documentation Considered | |
| Appendix C | |
| Index to Asylum Research Consultancy report | Pages 86 – 92 |
ACBAR — Agency Co-ordinating Body for Afghan Relief
ALP — Afghan Local Police
ANSO — Afghan NGO Safety Office
ANFS — Afghan National Security Forces
ANA — Afghan National Army
ANP — Afghan National Police
ANBG — Afghanistan's New Beginnings Group ANBG
AIHRC — Afghanistan Independent Human Rights Commission
AGEs — Anti-Government Elements
AOG — Armed Opposition Groups
AVR — Assisted Voluntary Return
ARC — Asylum Research Consultancy
CPI — Corruption Perception Index
CSIS — Centre for Strategic and International Studies
CRS — Congressional Research Service
DIAG — Disbandment of Illegal Armed Groups
EDPs — Externally Displaced Persons
ECtHR — European Court of Human Rights
FMR — Forced Migration Review
IEDs — Improvised Explosive Devises
ICG — International Crisis Group
IDMC — Internal Displacement Monitoring Centre
IDPs — Internally Displaced Persons
IOM — International Organisation for Migration IOM
IWPR — The Institute for War and Peace Reporting
ISAF — International Security Assistance Force
DESTIN — London School of Economics and Political Science, Development Studies Institute
NCTC — National Counterterrorism Centre
OHCHR — Office of the High Commissioner for Human Rights
OGN – Operational Guidance Note
PDPA — People's Democratic Party of Afghanistan
SFAC — Swiss Federal Administrative Court
US DoD — US Department of Defence
UNAMA — UN Assistance Mission in Afghanistan
UNDSS — UN Department of Safety and Security
UNDP — UN Development Programme
UNHCR — UN High Commissioner for Human Rights
UNOCHA — UN Office for the Coordination of Humanitarian Affairs
Afghanistan is not only war-stricken; it is riven by ethnic frictions, political factionalism, high levels of poverty, impunity, serious abuses of human rights by both state and non-state actors, ineffective governance, high levels of corruption, weak rule of law, an anaemic legal system, and a high risk of infiltration, cooption or subversion by insurgents, warlords and criminal groups. Despite ongoing efforts to improve training, the majority of Afghan National Security Forces (ANSF) remain poorly equipped and relatively ineffective. Afghanistan has become the world's largest source of externally displaced persons (EDPs) or “refugees” in common parlance; their estimated number of 3.1 million accounting for some 10% of its population.
Afghanistan's affairs are closely intertwined with those of its neighbours, especially Pakistan. Thus for example, Pakistan's neighbouring provinces provide safe havens for the Taliban insurgency and the lower prices of goods and accommodation in them mean significant numbers of Afghans...
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