PM and Others (Kabul – Hizb-i-Islami)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Mather |
| Judgment Date | 11 April 2007 |
| Neutral Citation | [2007] UKAIT 89 |
| Court | Asylum and Immigration Tribunal |
| Date | 11 April 2007 |
[2007] UKAIT 89
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Mather
Senior Immigration Judge Nichols
Mrs E Morton
For the First and Second Appellants: Mr C Jacobs, Counsel instructed by White Ryland
For the Third Appellant: Mr B Lams, Counsel instructed by Lawrence and Co. Solicitors
For the Respondent: Mr S Kovats, Counsel instructed by the Treasury Solicitor
PM and Others (Kabul — Hizb-i-Islami) Afghanistan CG
Those returned from the United Kingdom will not, without more, be at real risk at the airport or after arrival in Kabul.
Those returned from the United Kingdom are not at real risk, without more, of being suspected by the authorities as insurgents
The past of an individual seeking accommodation or work in Kabul, or elsewhere, may be discovered and mentioned to the authorities. Similarly, the authorities may become aware of someone newly arrived in an area. That may result in a person being detained for questioning but there is no satisfactory evidence such questioning gives rise to a real risk of serious harm.
Subject to an individual's personal circumstances, it is unlikely to be unduly harsh (or unreasonable) to expect them to relocate to Kabul if they have established a real risk of serious harm in (and restricted to) areas outside Kabul.
There is no satisfactory evidence that a person who has been associated in the past with Hizb-i-Islami will always be regarded as such.
There is no longer evidence of real risk to individuals said to have possible knowledge of the whereabouts of Gulbuddin Hekmatyar.
The three appellants are nationals of Afghanistan. Each has some connection to Hizb i Islami (also spelt Hezb-e-Islami or Hisb-e-Islami). Each has had his appeal dismissed by an Immigration Judge and errors of law have been found in respect of each of their determinations. Each was found to be a credible witness and the factual basis of their claims is not in dispute. The reconsiderations were heard together in order to enable the Tribunal to give country guidance as to the level of risk that would be faced by persons who are either members of Hizb-i-Islami or associated in some way with such members. Because it is intended that this determination shall form country guidance a list of the background material that was considered by the Tribunal is to be found in a schedule attached to this determination and a summary of our conclusions about the risk to such persons is to be found at paragraph 140, immediately before we consider the individual appeals.
In considering the appeals of the three appellants we have borne in mind that in each case the burden of proof is upon the appellant who has to establish that on, or after return to Afghanistan, he would face a real risk of serious harm. By serious harm, throughout this determination, we mean either persecution within the meaning of the Refugee Convention, serious harm within the meaning of the Refugee and Persons in Need of International Protection Regulations 2007 or inhuman or degrading treatment contrary to Article 3 ECHR.
The first appellant gives his date of birth as 1 January 1970. He appears to have entered the United Kingdom illegally on 3 April 2002 and applied for asylum that day, when he was served with illegal entry papers. He was eventually interviewed in July 2004. His application was refused and removal directions issued to Afghanistan on 19 July 2004.
His appeal was heard by an Adjudicator, Ms J E Perrett, on 25 October 2004. The respondent was not represented. The Adjudicator found that he was a credible witness. The first appellant was born in Nangarhar and is a Pashtun. His parents lived in Budiala and a paternal uncle in Coma. His eldest brother, who was about five years older than him was already a member of Hizb-i-Islami when the appellant joined aged about 9 or 10 ( 1979 or 1980). He was still at school at that point but took pictures of people who wanted to join Hizb-i-Islami and gave them to his brother who issued identity cards. The first appellant said his brother was not influential at that stage although he became so later. The first appellant claims to have been detained in 1986, while still at school, by the Najeeb regime on suspicion of being a member of Hizb-i-Islami, but he was released. He left school in 1989 whereupon he joined in fighting in opposition to the Communist regime of Dr Najibullah. He claims to have fought in Kunar, Parwan, Kabul, Jalalabad and also commanded men in doing so. His eldest brother was killed during this time fighting the Russians. The first appellant claims to have married his cousin in 1992 or 1993 but she remained at her father's house in Coma. He claims that he was paid by Hizb-i-Islami and also owned some agricultural land from which he obtained an income. In 1996, when the Taliban took power, the appellant returned to his uncle's house and helped him in his business, as a carpet and crockery wholesaler. He was arrested in 1997 by the Taliban who wanted him to fight on their behalf because they knew he was trained and knew the area. Whilst not happy, the first appellant fought as a foot-soldier for them for about two years in Kunar. He left Afghanistan because his brother was taken by members of the Northern Alliance at around the beginning of 2002, and he became aware that the Northern Alliance were enquiring of his whereabouts. He claimed to be fearful of returning to Afghanistan because he would be wanted by the Karzai Government because he had fought with the Taliban against them. His wife and uncle remained in Afghanistan. A cousin who is in the same position as him fled to Pakistan but returns occasionally to see his family. When he gave evidence to the Adjudicator the first appellant said his land had been seized by the Karzai Government. He told the Adjudicator that he had fought constantly from leaving school until about 1999. Despite accepting the first appellant's evidence, the Adjudicator found against him. She considered a report from the Danish Fact-Finding Mission and other background material, together with RS (Hezbe Islami — expert evidence) Afghanistan [2004] UKIAT 00278 which considered and accepted evidence from an expert, Dr Lau. She found that he would be at risk in his home area because Dr Lau had identified a risk that members or supporters of Hizb i Islami, or followers of Hekmatyar, may be reported, if only for the rewards on offer from the authorities. She then considered whether the appellant could go elsewhere. She noted that he had changed considerably in appearance since he fought in Kabul before 1995. She found that he would not be recognisable now in Kabul and concluded that he could live there safely.
The first appellant applied for permission to appeal which was granted by a Senior Immigration Judge. The appeal was treated as a reconsideration and at a hearing on 10 April 2006 the Tribunal (Immigration Judge Blair Gould, Mrs R M Bray JP and Ms J A Endersby) found that the Immigration Judge had made an error of law. They said:–
“1. The appellant is a former Hizb-e-Islami fighter and the Adjudicator found that, in effect, he would be in danger of persecution in his home area. However, she went on to consider whether he would be in danger in Kabul, and found that he would not.
2. Permission to appeal was granted in respect of this finding. The appellant particularly relied upon the evidence of Dr Lau reported in RS Afghanistan [2004] UKIAT 00278. The Tribunal reported Dr Lau's written opinion in full, and found him to be an impressive, authoritative, and careful expert witness. However, it did not report the case as a country guidance case and concluded only that on the particular facts of that appellant's case Dr Lau believed that his fear was well-founded.
3. The Adjudicator in the appeal before us said: ‘Dr Lau considers relocation to be a problem due to an outsider not fitting in. He appears to be focusing on areas other than Kabul.’ It is unclear whether Dr Lau intended to make this distinction or not. It does not appear that either in his written opinion or in his evidence before the Tribunal in RS he adverted to the question of whether Kabul, as the capital of Afghanistan, was a more cosmopolitan place where his other comments about the difficulty of relocation in general might not apply.
4. Another curious aspect of this appeal is the citation of the Danish Fact-Finding Report, which appears to have come to different conclusions in different places. The Adjudicator cites paragraph 6.10.1 (page 275 of the appellant's bundle) as showing that return to Kabul is a possibility, whereas the appellant cites paragraph 5.5 (page 262 of the appellant's bundle) saying that the UNHCR found that an internal flight alternative is not possible in Afghanistan.
5. In truth the Danish Report is somewhat unsatisfactory. It does not provide references for each of its findings, but only a general list of sources at the end, and it is unclear whether any particular finding is based upon one of the listed documents or upon its own investigations. Insofar as the findings are based upon documentary reports, those reports ought to be considered directly when the evidence is being assessed, rather than in the form of a summary in the Danish Report.
6 We did not consider that the Adjudicator had provided sufficiently clear reasons as to why she preferred the interpretation of these sources to the effect that the appellant would be safe in Kabul against that which would appear to show the contrary. We were also unhappy about her reasoning that the...
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