AK (Afghanistan) v Secretary of State for the Home Department

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeUpper Tribunal Judge Storey,Upper Tribunal,Re
Judgment Date15 Mar 2012
Neutral Citation[2012] UKUT 163 (IAC)

[2012] UKUT 163 IAC

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE Storey

UPPER TRIBUNAL JUDGE Allen

UPPER TRIBUNAL JUDGE Dawson

Between
AK (Afghanistan)
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

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

A. Law etc:

(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.

B. Country conditions

(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.

TABLE OF CONTENTS

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

GLOSSARY OF TERMS

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

DETERMINATION AND REASONS
1

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.

2

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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