Upper Tribunal (Immigration and asylum chamber), 2012-05-18, [2012] UKUT 163 (IAC) (AK (Article 15(c)))
| Jurisdiction | UK Non-devolved |
| Judge | Mr D K Allen, Dr HH Storey, Mr Dawson B, W |
| Status | Reported |
| Date | 18 May 2012 |
| Published date | 18 May 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 15 March 2012 |
| Subject Matter | Article 15(c) |
| Appeal Number | [2012] UKUT 163 (IAC) |
IAC-fh-nl-V1
Upper Tribunal
(Immigration and Asylum Chamber)
AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163(IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Date Sent |
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On 14, 15th March 2012 |
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………………………………… |
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
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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.
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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.
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TABLE OF CONTENTS
GLOSSARY Pages 7 – 8
Paragraphs
INTRODUCTION 1 – 3
The Appellant’s Case 4 – 5
Procedural History 6 – 8
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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:
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Civilian casualties 46 – 50
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Targeting of civilians 51
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Targeted categories of civilians 52 – 55
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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
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LEGAL FRAMEWORK 111 – 114
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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
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OUR ASSESSMENT
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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
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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...
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