RQ (Afghan National Army – Hizb-i-Islami – risk)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Gleeson |
| Judgment Date | 05 June 2007 |
| Neutral Citation | [2008] UKAIT 13 |
| Court | Asylum and Immigration Tribunal |
| Date | 05 June 2007 |
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Gleeson
Immigration Judge EB Grant
Mr P Bompas
For the Appellant: Mr P Jorro of Counsel Instructed by Wilson & Co
For the Respondent: Mr P Deller Home Office Presenting Officer
RQ (Afghan National Army — Hizb-i-Islami — risk) Afghanistan CG
(1) There is a risk to serving soldiers from the Taliban and Hizb-i-Islami, principally during troop movements and home visits. A soldier cannot be expected to desert in order to access protection and in fact such protection would be unavailable to him as a deserter.
(2) There is always a risk to soldiers of a country's army from rebel factions and the forces against which they are fighting. That is a risk which is assumed by those serving their country in its armed forces, and while on active service and with his unit, a soldier of the Afghan National Army has sufficiency of protection. Any risk which arises during home leave and troop movements is reasonable to the Horvath standard; total protection cannot be expected and any military service entails an element of physical risk.
(3) After the end of military service, former Afghan National Army soldiers are not at risk engaging international protection solely for that reason, absent individual factors particular to their individual circumstances and characteristics which may put them at increased risk.
(4) Where there are individual risk factors it is a question of fact whether the interest in a former soldier is likely to be confined to his home area or be more widely pursued. In particular, elements of ‘double cross’ in relation to the Taliban or Hizb-i-Islami, if true, may be sufficient to elevate the pursuit of the appellant and the risk to him to such a level that international protection is engaged.
(5) Where the risk to a particular appellant is confined to his home area, internal relocation to Kabul is in general available. It would not be unduly harsh to expect an appellant with no individual risk factors outside his home area to live in Kabul and assist in the rebuilding of his country.
(6) If an appellant establishes a wider risk, extending beyond the home area, internal relocation is not necessarily available and sufficiency of protection will depend on his individual circumstances and characteristics. In particular
(a) internal relocation outside Kabul is unlikely to provide sufficiency of protection as the areas outside Kabul remain under the control of local warlords, and the population is suspicious of strangers; and
(b) the safety of internal relocation to Kabul is a question of fact based on the particular history of an individual appellant and of the warlord or faction known to be seeking to harm him.
This is the appeal of an Afghan national against the Secretary of State's refusal to recognise him as a refugee or grant humanitarian protection under paragraph 339C of the Immigration Rules HC 395 (as amended)). The appellant's claim is based on military service. The appeal was listed initially under the fast track procedure at Harmondsworth but was removed from fast track to enable the appellant to produce certain documents. On the suggestion of Immigration Judge Grant and with the consent of both representatives, the appeal was then listed as a possible country guidance determination on the risk to former members of the Afghan National Army from the Taliban and Hizb-i-Islami.
The appellant is currently 18 years old (date of birth 1 January 1989) and he claims to have served three years in the Afghan military before leaving Afghanistan in or about November 2006, walking for three hours into Iran, and then with the help of an agent and nine or ten lorries, coming by a circuitous route to the United Kingdom. The final lorry was heat-scanned at Dover on arrival and the appellant, along with several others, was discovered and arrested there. He claimed asylum once he arrived at the police station and said he had no relatives in the United Kingdom.
After setting out the account, and making incomprehensible findings at paragraph 12 (not now relied upon) the letter of refusal considered the appellant's claim at its highest. The Secretary of State considered that —
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(1) The appellant's claim to know himself to be wanted by Hizb-i-Islami and the Taliban was mere speculation;
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(2) His army service was no longer a risk factor now that he was discharged; the opposition groups had what they wanted in that respect.
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(3) His threats came only from family members of the appellant and were localised.
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(4) State protection alternatively protection from actors of protection (the International Security Assistance Force) was available and would be adequate.
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(5) There was an internal relocation option to areas outside the East and southeast of Afghanistan.
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(6) Humanitarian protection as defined by the Qualification Directive Regulations 2006 was not available as the claim was not believed and the appellant personally had never been threatened.
The core of this claim is that the appellant says he comes from a Hizb-i-Islami family and knew the whereabouts of two weapons depots used by Hizb-i-Islami and the Taliban, in his local area. He served in the Afghan National Army for the full three years required, having lied about his age to join up; he was 15 but they said he looked 18 and he did not disagree. There was a great need for recruits at the time.
His father's cousins, who were members of the Taliban and Hizb-i-Islami, threatened harm to him and members of his family if he did not leave the army, but the appellant was not put off. After two years, he returned home for five days to marry. He then returned to his posting (in Kunar at the time), only to be telephoned by his uncle who said that his father had been taken. His father had not been seen since. It is the appellant's case that he was so angry that he showed the army where the weapons depots were, and the weapons were removed; now, he fears the wrath of Hizb-i-Islami and the Taliban should he return to Afghanistan.
The Secretary of State considered that the problems were local and that the appellant could either relocate or seek state protection from the Afghan police force, army, or the International Security Assistance (ISAF) in Kabul. Both the asylum and humanitarian protection claims failed on that basis.
The appellant appealed. He relied on the Refugee Convention, paragraph 339C and Articles 2 and 3 ECHR. He contended that the appellant's account was credible and that, despite reporting the threats to his army superiors during the appellant's service, they were unable to do anything and given the end of the appellant's service, would be even less inclined to do so now. The power of the Taliban and Hizb-i-Islami in Afghanistan was rising; outside Kabul, individuals were at the mercy of the local warlords.
The appeal had two abortive hearings at Harmondsworth before coming before the present Tribunal. There were interpreter difficulties on the second occasion; the appellant needs an Afghan Pushtu interpreter but was provided with a Pakistani one whom he could not properly understand. By the 2 March 2007 the appellant had obtained documents to confirm the appellant's military service. After further directions hearings, the appeal was finally effective on 5 June 2007.
The appellant prepared a chronology and two witness statements, one dated 29 January 2007 and one 25 May 2007. He also gave oral evidence at the hearing through an interpreter who spoke Afghan Pushtu. Due to difficulties caused by the Tribunal not having booked the correct interpreter, there was a delay in reaching the appellant's evidence while one was found. The Tribunal also had the benefit of expert evidence from Mr Peter Marsden, MBE, a country expert who had assisted the Tribunal in a number of its leading cases on the situation in Afghanistan (most recently in SO and SO (KhaD, members and family) Afghanistan CG [2006] UKAIT 00003) and from Mr Abdulmalik Bahaar of the Afghan Academy in London.
For the Secretary of State, having seen the documents, Mr Deller accepted that the appellant had indeed carried out military service for the Afghan National Army as claimed; including that he had managed to join the army aged only 15 and completed the appellant's military service at 18 years old. That element of the letter of refusal, and also paragraph 12 (which deals with the question of threats by the Taliban or Hizb-i-Islami) were not relied upon.
The appellant comes from Tehzin in Kabul province. He had two sisters, one older and one younger, and three brothers, all younger. He left school after just a few years, age only 13. He joined the Afghan National Army (ANA) in July 2003. He had three months training at the Army College in Kabul, including basic English. He then had three months' combat training and was posted in early 2004 to Ghazni province, where he spent a year in the run-up to the Presidential elections. It was at this time that the appellant's father started to receive threats from Hizb-i-Islami and the Taliban intended to persuade him to leave the army. He did not do so.
In October 2004 President Karzai was elected. From December 2004 to January 2005, the appellant completed an Engineer Refresher Course conducted by the US Army Engineer Mobile Training Site at Camp Dawson. He was then posted to Kunar, Laghman, Jalalabad, Khogiani, Nooristan, Zabul and Jabal Saraj. On 31 May 2005 the appellant received his ANA Drivers' Licence and from 4 July 2005 he spent three weeks helping the ISAF construct the Afghan National Army compound.
In late 2005, the...
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