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You are here: BAILII >> Databases >> Upper Tribunal (Immigration and Asylum Chamber) >> AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) (18 May 2012) URL: http://www.bailii.org/uk/cases/UKUT/IAC/2012/163.html Cite as: [2012] UKUT 163 (IAC), [2012] UKUT 00163 (IAC) |
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Upper Tribunal
(Immigration and Asylum Chamber)
AK (Article 15(c)) Afghanistan
CG [2012] UKUT 00163(IAC)
THE IMMIGRATION ACTS
Heard at Field House |
Date Sent |
On 14, 15th March 2012 |
|
|
………………………………… |
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
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 | Glossary |
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 ![]() ![]() |
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 ![]() ![]() |
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 |
![]() ![]() |
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 | Pages 86 - 92 |
Index to Asylum Research Consultancy report |
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 spend time there. And, by virtue of the
involvement since November 2001 of U.S. and other international forces, what is
now known as “the Long War” also has an international dimension. Whilst a
recent strategic agreement of 1 May 2012 reached between Presidents Obama and Kharzai confirms that the departure in 2014 of NATO and other international troops
will not result in a cessation of U.S. support of various kinds, the
consequences of that departure are the subject of much debate.
3. Bearing in mind the
global resonance of this conflict, it is as well that we emphasise at the
outset that our task as judges in this case is a limited one. It is not to
pronounce on the political and social conditions in Afghanistan
or the rights
and wrongs of the conflict, but only to furnish answers to a question relating
to how the claims of the appellant and other failed asylum-seekers and/or
enforced returnees to
Afghanistan
are to be assessed so as to decide whether they can be returned consistently with Article 15(c) of Directive 2004/83/EC (the
“Qualification Directive”). At the same time, our task has wider implications because we have to tackle it in the knowledge that this case has been identified as an intended country guidance case, designed to consider among other things, whether
increasing levels of violence in
Afghanistan
require us to take a different
view than has been taken in previous country guidance cases as to the
application of Article 15(c), GS (Article 15(c): indiscriminate
violence)
Afghanistan
CG [2009] UKIAT 00044 in particular.
The Appellant’s Case
4. The appellant is a
national of Afghanistan
, born on 1 January 1990. It is not in dispute that he
arrived in the UK on 31 October 2008, claiming asylum straightaway. The
principal basis of his claim was that he had fled his home area of Ghazni to
escape persecution at the hands of the family of a powerful war lord, Jumra
Khan, who had discovered the appellant had begun a relationship with Khan’s
niece. The fact that the appellant’s family had been high-ranking members of
Dr Najibullah’s Communist regime had added to his difficulties. On 31 July
2009 the respondent rejected his claim, finding it lacking in credibility. In
his subsequent appeal, before Immigration Judge Obhi, the appellant’s claim was
again rejected as lacking in credibility. The judge had nevertheless gone on
to allow his appeal on the basis that the evidence before him demonstrated that his home area of Ghazni was unsafe for Article 15(c) purposes because of the
ongoing armed conflict there and that Kabul would not be a viable internal
relocation alternative. On 19 March 2009 the judge’s decision was found to be
vitiated by legal error in relation to his assessment that in both Ghazni and Kabul the appellant would face a real risk of serious harm, contrary to Article 15(c).
Procedural History
6. When setting aside the decision of IJ Obhi, the Tribunal took steps to progress the appeal as a potential
country guidance case “intended to examine whether circumstances have changed
since the Tribunal CG case of GS as applied to Kabul and other parts of Afghanistan
”. A decision was then taken to await the decision of another Upper Tribunal
panel in AA (unattended children)
Afghanistan
CG [2012] UKUT 00016 (IAC) dealing with some Article 15(c)-related issues albeit mainly
in the context of risk to children. In the event the determination in AA
was not promulgated until 6 January 2012. In the meantime, however, the
Tribunal conducted several Case Management Review (CMR) hearings of the instant
case with a view to clarifying the scope of the issues, the expert evidence and the preparation of background materials. The Tribunal is greatly indebted to both parties for their considerable effort and diligence.
8. At the close of the
hearing on 15 March 2012, the Tribunal indicated that it sought further
materials from the parties in respect of several matters. It is unnecessary to
specify what these were except to note that one concerned further details of recent case law by courts of EU (or EU-associated) Member States dealing with Article 15(c) risk in Afghanistan
. During the hearing the Tribunal alerted the
parties to the existence of three leading decisions made in 2011 by the Swiss
Federal Administrative Court (FAC) addressing whether safe returns to Kabul, Herat and Mazar-i-Sharif were possible. The Tribunal also received swift responses
from the parties to further directions sent on 9th May.
A. THE EVIDENCE
The Expert Evidence
Dr Seddon
10. Until his early
retirement in 2006, Dr Seddon was a professor in sociology and politics at the University of East Anglia with a breadth of academic experience in conflict and development studies as well as in migration studies. In the 1990s and early 2000s he was a
conflict adviser to the British and Canadian governments and several NGOs with
respect to conflicts in Nepal, Algeria, Western Sahara, Israel/Palestine, DRC and South Africa. His report for this case is dated 10 October 2011. Its
first part discusses and analyses the Tribunal country guidance case of GS,
taking the expert witness in that case, Professor Farrell, to task for
concluding that figures for battle deaths and civilian casualties in
Afghanistan
, although on the increase, had remained relatively low, a
conclusion which Dr Seddon considers to underestimate significantly the scale
of casualties, due to over-reliance on figures from the Brookings Institute.
His report then proceeds to give his own assessment of levels of indiscriminate
violence between 2005-2010, stating at para 4.3 that they had experienced a
“dramatic leap” in 2009-2010 as a result of the surge implemented by the coalition
forces and the insurgent response. He adds that there is “no clear indication
yet that 2011 has experienced a significantly lower level of violence and
insecurity”. At paras 4.6-4.7 he discusses the report by Wikileaks of July
2010 alleging that official records significantly underestimated the actual
number of civilians injured and killed by coalition forces. At paras 4.16-4.22
he addresses the issue of the large numbers of IDPs and EDPs. Whilst
acknowledging that there are many factors contributing to the high level of
refugees from
Afghanistan
, he considers that: “it seems reasonable to assume
that the continuing and indeed intensifying and expanding scope of the
conflict, and the increasing level of violence and insecurity, is a major factor”
11. Dealing with the
issue of state protection, Dr Seddon quotes a BBC interview dated 7 October
2011 during which President Karzai said to the reporter, John Simpson, that his
government and the coalition ‘had failed to provide adequate security for the
Afghan people’ . As regards the Afghan police, Dr Seddon quotes sources describing them as poorly trained, incompetent, under-resourced and corrupt: “the objective evidence suggests that, even now, the police have neither the capacity nor the willingness to provide protection for individuals at risk from particular non-state actors”. He describes protection by the Afghan government in Kabul as ineffective, with security in that
city having deteriorated still further recently. He says he views Tribunal
country guidance cases considering Kabul a viable internal relocation
alternative, “even if it was not the case previously, [to be] no longer valid,
and that Kabul, like virtually all other places in Afghanistan
, is insecure and
unsafe”. Internal relocation to Kabul “would not”, he states, “ensure that a
returnee would be able to live there freely and without fear and maintain a
viable private and family life there”. The International Security Force (ISAF)
and the Afghan army “are clearly no longer able to provide adequate security, even in Kabul….”.
12. Dr Seddon concludes that in his opinion “the point has been reached where it is time to revise the current
country guidance and revise the [GS view] so that “the level of
indiscriminate violence in Afghanistan
is now [recognised to be] high enough to
meet the criteria of Article 15(c)”.
Dr Giustozzi
13. Dr Giustozzi is
currently a visiting research fellow at the London School of Economics and
Political Science, Development Studies Institute (DESTIN). His numerous
publications include the book, Empires of mud: wars and warlords in Afghanistan
, 2009. He has extensive field experience in
Afghanistan
, most recently in
September-October in Kabul to research corruption in the police and the
organisation of the Taliban. Dr Giustozzi’s report is dated 2 December 2011. He
also provided a brief response to two clarificatory questions asked by the
Treasury Solicitor in a letter of 27 February 2012 about certain observations
made in his report. Paras 4-18 of his report address evidence relating to the
leftist People’s Democratic Party of
Afghanistan
(PDPA)/Homeland Party,
targeting of former leftists, the poor record of Afghan law enforcement
agencies, both in
Afghanistan
as a whole and in Kabul, land grabs as a source
of conflict, attitudes of the population towards extramarital affairs, honour
killings and blood feuds. Paragraphs 19-20 address the level of violence in
Afghanistan
. Mainly by reference to UNAMA and ANSO statistics, Dr Giustozzi states that the
level of violence has quadrupled since 2007 and appears set to show further
increases by the end of 2011. Dr Giustozzi observes that the actual number of
deaths is likely to be higher than those recorded by UNAMA, “as for example
Afghan police, army and security services never report killing any civilians.
Finally, a larger number of civilians have been injured and maimed, but there
are no exact statistics in this regard”.
14. At paras 21-24 Dr
Giustozzi deals with the likely risks the appellant would face on return.
Since, like the first eighteen paragraphs, they are written on the assumption
that the appellant’s account of his past experiences was accepted as credible,
they have limited relevance, but even so they identify the lack in Afghanistan
of a state benefit system, the limited nature of medical services and the great
difficulties that would face returnees in Kabul in finding accommodation and
employment (unemployment being estimated at 35-50% and rates of pay being very
low ($4 a day).
15. At para 25 Dr Giustozzi concludes:
“In summary, the risk deriving from indiscriminate violence has increased, even if the overall number of civilian casualties remains relatively modest relative to the size of the population. Most indiscriminate violence occurs in the shape of pressure mines, which are indiscriminate by nature. The risk is mainly on the roads connecting the provincial and district cities to the villages. In Kabul city the risk deriving from indiscriminate violence is mainly limited to occasional terrorist attacks, mostly in the central parts of the city, where most government offices and international targets are located…”.
The ARC Evidence
(a) Asylum and Research Consultancy (ARC) Report, February 2012
17. The authors of the
Asylum and Research Consultancy (ARC) Report begin by describing their
background and experience as researchers. In addition to having worked as
researchers for UK organisations, both have also worked as researchers for the
European Council on Refugees and Exiles (ECRE) and the Office for Democratic Institutions
and Human Rights (ODIR/OSCE). Ms Williams holds an MA in Social Anthropology
and Development from SOAS and an MA (Hons) in Philosophy from Edinburgh University. Ms Huber holds an MA in the Theory and Practice of Human Rights from the
Human Rights Centre at the University of Essex, an MSc in Violence, Conflict
and Development from SOAS and a BA in Contemporary History from the University of Sussex. The authors explains their methodology as being to provide objective evidence available in the public domain so as to draw out the salient issues that
illustrate the country conditions in Afghanistan
in relation to people such as
the appellant. “We have not knowingly omitted any fact that could materially
affect our comments given above”. The salient issues are those identified in five questions posed by the appellant’s solicitors.
18. The first question
concerns the security situation in Afghanistan
, especially in Kabul and Ghazni
province, with reference to (a) the number of attacks; (b) the number of
casualties; and (c) the level of insurgent activities. The report gave its
response by way of citing excerpts from various sources. Under the sub-heading “B: Security situation in Kabul”, the report states that:
“The information included in this section demonstrates that despite the fact that Kabul is considered safer than other provinces, it has become increasingly insecure as demonstrated by the incidence and strength of insurgent attacks carried out in the capital, including in fortified areas.”
20. The second question
addressed by the ARC Report is “The prospects for a young man to secure
accommodation, employment, means of support in Afghanistan
, especially in Kabul and Ghazni province”. The report draws attention to sources detailing the country’s
huge number of IDPs (351,907 according to Amnesty International in May 2011)
and the low living standards, (said by the CIA World Factbook to be among the
lowest in the world). The report cites sources saying that the unemployment
rate in
Afghanistan
is 35% and that 36% of the population live below the
poverty line. Around 60% of the population suffer from mental health
problems. There are real concerns about the impact the withdrawal of
international troops in 2014 will have, since around 60% of GDP is in some way
linked to their presence.
25. Regarding Ghazni, the
ARC Report records, inter alia, the Afghanistan
Research and Evaluation
Unit stating in October 2011 that the general perception is that while the
government has maintained control over Ghazni city, it has largely lost control
over the districts and rural areas in the province.
(b) Oral evidence of Ms Stephanie Huber
26. Ms Huber confirmed
that she is a consultant for ARC. ARC had been established in 2010 by her and
her colleague, Liz Williams. In preparing the ARC Report in mid December 2011
they had adopted and applied the criteria set out in the Common EU Guidelines for Processing Country of Origin Information (COI) in full. Their report sought to
synthesise from the mass of materials from recognised sources available on Afghanistan
relevant information relating to the questions they had been asked to address.
It did not seek to provide their personal opinion. Where their report records
opinions (e.g. that the situation for IDPs and returnees in Kabul is “dire”)
that was simply summarising the effect of information from other sources: Amnesty
International, for example, had used the word “miserable” to describe the same situation. She considered that information that had become available since
they signed off their report confirmed the overall picture they had given. In
its February 2012 report, UNAMA, for example, had said that 2011 was the fifth
consecutive year in which there had been an increase in civilian deaths. Whilst she considered it was necessary to examine the methodology of all the bodies
that published data relating to the armed conflict in
Afghanistan
, she attached significance to the fact that UNAMA has a presence on the ground in most
parts of
Afghanistan
and is committed to regular updating. ANSO was another
body whose reports are well-respected for their independence.
Background Evidence
28. The sources of
background evidence we have considered are listed in Appendix References to the
COIS are to its October 2011 report on Afghanistan
.
Parties to the Conflict
(a) Government and pro-government actors
31. Private security
firms also have a strong presence in Afghanistan
, especially Kabul (COIS,
10.69).
(b) The Insurgents
33. Following the US led
surge launched in late December 2009/early 2010, the insurgents have switched
their tactics to avoid large-scale confrontations with ISAF forces and to rely
instead on “asymmetric” tactics featuring an increase in the use of IEDs and
“high profile” attacks on “soft targets” (US Department of Defense (USDoD),
October 2011). Whilst ISAF Forces have enjoyed some success in clearing
insurgents from their strongholds, holding them has proved difficult (COIS,
8.24). According to the IGC report, The Insurgency in Afghanistan
’s
Heartland, 27 June 2011:
“The insurgency has expanded far beyond its stronghold in the south east. Transcending its traditional Pashtun base, the Taliban is bolstering its influence in the central-eastern provinces by installing shadow governments and tapping into vulnerabilities of a central government crippled by corruption and deeply dependent on a corrosive war economy. Collusion between insurgents and corrupt government officials in Kabul and the nearby provinces has increased, leading to a profusion of criminal networks in the Afghan heartland.”
35. It must not be
overlooked that the above identifies only the main actors to the current
conflict; it does not identify all those involved. Dr Giustozzi’s report at
p.25 notes that according to the Disbandment of Illegal Armed Groups (DIAG) UN
Development Programme (UNDP) database maintained by Afghanistan
’s New
Beginnings Group (ANBP) and the Disarmament Commission, as of late 2006 there
were 5,557 illegal armed groups, a figure likely to have increased since.
Causes of the conflict
36. On the causes of the
current armed conflict in Afghanistan
, (Professor) Theo Farrell & Olivier
Schmitt in their March 2012 study published by the Division of International
Protection UNHCR entitled “The Causes, Character and Conduct of Armed Conflict,
and the Effects on Civilian Populations, 1990-2010”, state:
“Internal armed conflict in
Afghanistan
has had multiple causes. Much like the jihad against Soviet
forces from 1979-89, the conflict since 2001 is an Islamic insurgency against
an infidel invader, currently led by Taliban in alliance with the other two
major insurgent groups in the east (the Haqqani network and Hekmatyar’s HIG).
The current conflict is also a civil war. Some view it as a war between
Ghilzai Pashtuns (who form the core of the Taliban) and the victorious Northern Alliance (Durrani Pashtuns, Tajiks, Uzbecks and Hazaras). However, the Taliban
appear to draw support from all Afghan ethnic groups. At the local level,
competition between kinship groups frames a violent competition for resources (land,
water, control of routes, and narcotics revenue). For example, the conflict in
Northern Helmand is primarily a struggle between three Pashtun tribal groups,
the Alizai, Alikozai, and Ishaqzai. The situation in central Helmand is less defined along tribal lines due to the complex tapestry of kinship groups, but still much of the
insurgency is defined by various groups resisting abuse by the Afghan police
who are locally dominated by the Noorzai tribe. This illustrates the larger
point that since Afghan politics is based on patrimonialism, the natural order is for government positions to be used to sustain one kinship group at the expense of
others. This, in turn, further challenges the simple view of the conflict as
an Islamic insurgency against an elected government. Finally, the conflict
also has a significant transborder dimension. The Taliban developed in the 1990s with the support of the Pakistani intelligence service (ISI) in the two
unruly provinces that border
Afghanistan
, Baluchistan and the North-West
Frontier. The Taliban retreated across the border to Pakistan in 2002, and continue to generate forces and direct attacks against the Afghan government
and ISAF from these two provinces with the support of the ISI.”
Types and indices of violence: several observations
38. In the copious
background materials there is a grim manifest of figures dealing with
casualties. They cover, inter alia, casualties suffered by the ANSF and
the ISAF forces as well as figures for violence caused by them, figures for
“total weekly kinetic events”, “people killed, injured, or kidnapped in acts of
terrorism”, “total attacks”, “total victims”, “security incidents”, “terrorist attacks”, “attack patterns”, “complex coordinated enemy attacks”,
“enemy-initiated attacks”, “caches and(Improvised Explosive Device (IED)
attacks”, “IED efficacy”, “IED activity, ”civilian casualties”, “incidents of hostages and wounded”, “civilian deaths”, “civilian deaths by parties to the
conflict”, ”total civilian deaths and injuries” “causes of civilian deaths and casualties”,” targeted killings and assassinations”. In the Brookings Afghanistan
Index, January 2012 yet further indices of similar ilk are given.
39. When considering these figures we need to bear in mind that there are a number of different bodies
monitoring armed conflict-related indices in Afghanistan
including (the
following is not necessarily an exhaustive list): the US Department of Defence
(DoD/ISAF), the National Counterrorism Center (NCTC), various arms of the UN
(Office of the High Commissoner for Human Rights (OHCHR);UN Assistance Mission
in
Afghanistan
(UNAMA); UNDP; UN Office for the Coordination of Humanitarian
Affairs (UNOCHA); and UN Department of Safety and Security (UNDSS), the Afghan
NGO Safety Office (ANSO), the
Afghanistan
Independent Human Rights Commission
(AIHRC) and the Brookings Institute. It appears that data-collection of this
kind only began on a systematic basis in 2007. Not all these organisations
employ the same methodology or measure precisely the same thing. ISAF
itself, for example, is said to have confirmed that “[f]igures for ANSF-caused
civilian casualties are not monitored by ISAF, and reporting of
insurgent-caused civilian casualties is based on what is observed or on reports
that can be confirmed by ISAF; it therefore presents an incomplete picture”
(UNAMA Annual Report, 2011). Whilst we were not presented with full details of the methodologies of all the data-gatherers involved, it is clear that the figures
produced by the following four organisations are widely referred to by
commentators: UNAMA, ANSO and to a lesser extent the National Counter
Terrorism Centre (NCTC) and the DoD/ISAF.
In relation to UNAMA’s figures, its annual reports contain a detailed description of their methodology and confirm they are based on on-site investigations wherever possible and consultation with a broad range of sources and types of information with corroboration and cross-checking in order to evaluate reliability. Even so, its 2011 report (the latest to hand), emphasises that “UNAMA does not claim the statistics presented in this report are complete; it may be that UNAMA is under-reporting civilian casualties given limitations associated with the operating environment”(Annual Report 2011, p.ii). ANSO is another organisation that provides figures which also enjoy a reputation for reliable and comprehensive data-gathering. The materials we have do not explain the precise methodology used by ANSO, although from a 2009 article in the Journal of Conflict Studies* Vol.29 (2009) we glean that ANSO was formed in 2002 and is currently funded by the European Union, Swiss Aid and the Norwegian government. It has five offices (Kabul, Jalalabad, Herat, Kandahar and Mazar-i-Sharif) with a staff of around 50. The Kabul office collects security information from the regional security advisors in each of the five operational regions.
42. A further observation
is this. We will seek to evaluate the evidence later on, but it can be noted
now that in respect of virtually every indicator tracked by UNAMA and other UN
bodies, violence in Afghanistan
is on the rise. The United Nations Department
of Safety and Security (UNDSS) estimate of total incidents shows an increase
from 11,524 in 2009, 19,403 in 2010 to 22,903 in 2011. The UNAMA figures show
the number of civilian deaths increasing from 2,412 in 2009, 2,790 in 2010 to
3,021 in 2011 and the total number of civilian casualties (deaths and injuries) increasing from 5,978 in 2009, 7,158 in 2010 to 7,528 in 2011. According
to ANSO, conflict-related civilian fatalities increased from 1,590 in 2009 to
2,027 in 2010 but later figures given are 2,534 civilian deaths in 2010 and (as
just noted) a slightly lesser figure for 2011: 2,427. At the same time, the
ANSO figures also show that, in comparison with the second quarter of 2010, the
second quarter of 2011 showed a countrywide attack pattern up from 19.6 incidents to 40.9 per day.
45. With these observations in mind, we return to summarising the evidence and submissions.
Levels of violence: (a) Civilian casualties
“Between 600,000 and 2.5
million civilians were killed in the Soviet War. The Mujahideen Civil War also saw widespread indiscriminate violence against civilians; for example,
around 10,000 were killed in the struggle for Kabul in 1993. In contrast, civilian
fatalities since 2006 have been relatively modest. Starting from under 1,000 in 2006, direct civilian deaths from the conflict have risen by approximately 500 each
year to over 2,700 in 2010. Civilian casualties caused by ISAF attract much
media attention and Afghan government criticism, but most civilians are killed
by insurgent action (ranging from a low of 55 per cent in 2008 to highs of 72
per cent in 2006 and 75 per cent in 2010). Afghanistan
is the largest producer
of refugees in the world, both in absolute numbers and as a proportion of the
national population. Between 2006-2009, around 2 million Afghans were refugees
(out of an estimated Afghan population of 30 million). Many of these are
legacy refugees from the 1980s, when punishing attacks on the population caused
5 million to flee into Iran and Pakistan; the Mujahideen Civil War that
followed discouraged many from returning. But it is also indicative of the
general lack of security, especially in the Southern and Eastern provinces. In
rural communities, civilians face daily threats of violence from corrupt
security forces, insurgents, organised crime, and other armed groups. Afghan
police commonly prey on the civilian communities they are supposed to protect
(though this problem has improved since 2010). In the 1990s, the Taliban were
responsible for some massacres, most notably in Herat. Since 2006, the Taliban
have exercised more discipline, in order to win local consent. However, when
they are unable to subvert tribal clans through subtle means, the Taliban will
use violence and intimidation.”
47. Acceptance on all sides that the level of violence experienced by civilians in Afghanistan
is generally increasing
is expressed by UNAMA in its July 2011 report thus: “the rising tide of violence and bloodshed in the first half of 2011 brought injury and death to Afghan
civilians at levels without recorded precedent in the current armed conflict”.
According to the latest Brookings Institute study, “injury and deaths to Afghan civilians are at levels without recorded precedent in the current armed
conflict”.
Levels of Violence: (b) Targeting of Civilians
“…episodes of targeting of civilians because of their association with one of the parties in the conflict have been rare. The main exception is represented by government officials, whom the insurgents have been proactively targeting and increasingly so… ethnic and religious minorities have not been targeted.”
When talking about the situation in the cities in government-controlled areas, Dr Giustozzi states:
“In sum, for the Afghan urban dweller, there are two main sources of risk: one, quite small, is to get caught in a terrorist attack, usually taking place in city centres. The other is to get caught in the repression, which is only likely for those of recent immigration into the city from a village or from the refugee camps in Pakistan.”
Levels of violence: (c) Targeted categories of civilians
53. For 2010 the
Afghanistan
Independent Human Rights Commission (AIHRC) and UNAMA recorded 381 assassinations and executions – more than double the number for 2009. There were also
251 incidents where at least 559 civilians were abducted. Abductions targeted
senior provincial officials, tribal elders, aid and construction workers and
educational officials among others. The majority of victims were abducted on
suspicion of spying for the government and international military forces. At
the same time, the AIHRC and UNAMA human rights estimated that in 2010 these
abduction figures included at least 151 ordinary civilians (UNAMA Report, 9 March
2011). The UNAMA Annual report for 2011 states that it had documented 495
targeted killings in 2011, exceeding the high rate recorded for 2010. It is
said that women and children increasingly bore the brunt of the armed conflict.
“Targeted killings continued at last year’s high rate. The report notes that those targeted are in general those civilians perceived to support the Afghan government or international forces. It noted attacks on provincial and district governors, provincial council members, chief of police, members of peace councils, tribal elders and fighters entering the reintegration program, off-duty police, teachers, educational officials as being singled out for targeted killings. Between January and June 2011, UNAMA documented 190 targeted killings compared to 181 in the same period in 2010.”
Levels of violence (d) Combatant casualties
Comparison with other conflicts
57. We noted earlier
references in Dr. Seddon’s report to comparisons made by Professor Farrell in GS
between the armed conflict in Afghanistan
and that in several other countries,
including Iraq. Although expressing doubt these were proper comparators, Dr
Seddon himself did not furnish any further data about such comparisons.
58. The respondent relied on very recent comparative data set out in CSIS study by A Cordesman & A Burke,
“Afghanistan
: The Failed Metrics of Ten Years of War” dated 9 February 2012. It
focuses on comparison with Iraq and Pakistan.
“[i]n comparative terms the on-going Afghan conflict has not been particularly bitterly targeted at civilians. Although civilian casualties have gradually increased year-on-year, they have done so less than proportionally with the increase in the number of violent incidents from 2008 onwards. This suggests that the parties in the conflict have been trying to restrain themselves and contain civilian casualties.”
The Swiss Federal Court judgment SA v Federal Office for Migration (16 June 2011) 9.7.4 – see below
para 102 - notes that the Heidelburg Institute for International Conflict
Research in its “Conflict Barometer 2009” rated 31 conflicts around the world
as “extremely violent” and classed seven of these as wars, including
Afghanistan
’s (no more information is given than that).
Protection
60. According to the CRS
Report of 22 September 2011, the Kharzai government is estimated to control
only about 30% of the country. Insurgents control 4%, but have some presence
in another 30%. The remainder are controlled by tribes, warlords or local
groups (COIS, 8.02). Criminality, weak governance, insecurity and a weak rule
of law are prevalent. The Fund for Peace (20 June 2011) has ranked Afghanistan
in the top ten on its Failed States Index for the past five years due to
“security challenges” and the lack of any functioning government capable of
providing access to the basic necessities and able to implement public services
in the face of pervasive corruption and drug lord challenges to state
legitimacy.
Corruption
62. In its 2010
Corruption Perception Index (CPI) Transparency International ranked Afghanistan
at 176 of 178 countries giving it a CPI score of 1.4 (10 is “highly clear” and
0 is “highly corrupt”). Various major country reports describe corruption,
nepotism and cronyism as being rampant at all levels and there being a lack of
political will to protect the population against it. The massive flows of
money from the military, international donors and the drug trade exacerbate the problem. A lack of political accountability and low salaries heightened
government corruption including within the ANP. It is said that the average
Afghan is forced to pay five bribes a year; averaging $156 per bribe.
Socio-economic conditions/IDPs
63. Afghanistan
is a poor country by any reckoning. The World Bank calculates the country’s “poverty
headcount” to be 36% and illiteracy as high. Yet the economy has grown so that
since 2002 GDP has increased from 182 to 592 dollars (Institute for War and
Peace Reporting, 22 August 2011). Although there are huge disparities in
wealth, with 35.4% of the workforce unemployed, the country has moved from 181st
(second to last) in 2009 to 172nd on the HDI Index for 2011, with a strong growth rate.
66. In an April 2011 report
the IDMC recorded that 730,000 people have been internally displaced in Afghanistan
due to conflict since 2006. At the end of January 2011, 309,000 people
remained internally displaced due to armed conflict, human rights abuses and
other generalised violence (COIS, 31.02). The UNAMA report for 2011 states
that “[c]onflict and insecurity displaced 185,632 Afghans in 2011, an increase
of 45% from 2010.”
69. Under the UNHCR repatriation programme, which entered its 10th year in 2011, every
returnee receives US$150 upon arrival to cover their transport and some initial
costs (IRIN, 9 November 2011). The return of large numbers of refugees since
2002 has placed huge pressure on Afghanistan
absorption capacity (Forced
Migration Review (FMR), 8 September 2009).
Humanitarian Aid
70. In terms of development aid, overall figures for the amount of money the international community has spent
on or promised to Afghanistan
are hard to come by, but over $67 billion has
been pledged at four donor conferences since 2002 (Central Intelligence Agency
(CIA) World Factbook, September 2011, COIS, 2.02). The CRS Report for Congress,
Feb 6, 2012 breaks this down, identifying $39 billion of that amount as being
to equip and train Afghan forces, For 2012 it is said that pledged amount is “…
in addition to about $90 billion for U.S. military operations there”.
71. According to the
Agency Co-ordinating Body for Afghan Relief ((ACBAR), June 2010) there are
approximately 1,300 national NGOs, 300 international NGOs and 16 UN
organisations involved in humanitarian and development assistance in
Afghanistan
as of January 2010.
Provincial level
73. We have already noted
evidence indicating both a geographical shift and expansion of the armed
conflict in Afghanistan
from the existing areas in the south and south east to
the east and to a lesser extent in the west and north, although we lack precise
graphs with a breakdown of civilian deaths and casualties and security incidents for each province. The UNAMA report covering 2011 notes that the southern and southeastern
regions accounted in 2011 for 64% of all incidents (32% each), although a steep
decrease after September 2011. Under a subhead, “Geographic Shift in the
Conflict”, it states:
“As the year progressed, the conflict gathered intensity outside those southern provinces where fighting has historically been concentrated and worsened in several provinces in the southeastern and eastern regions. In the last half of 2011, although Kandahar and Helmand remained the provinces with the highest number of civilian deaths with 290 civilians killed; this number is a 39 per cent decrease compared to the same period in 2010.
In contrast, the southeastern provinces of Khost, Paktita and Ghazni and eastern provinces of Kunar and Nangarhar saw a combined total of 446 deaths, a 34 per cent increase compared with the same period in 2010. Between July and December 2011, civilian deaths in the central region jumped from 128 to 230, an 80 per cent increase from the previous year. This rise was prominent in Kabul province, where civilian deaths increased from 23 in the last half of 2010 to 71 in 2011. 61 of the 71 civilian deaths in Kabul during this period occurred as a result of six suicide attacks.
Although targeted killings by AGEs decreased in the southern, central and northeastern regions in 2011, country-wide such killings rose by six per cent, with huge increases in the western region (255 per cent), the southeastern region (14 per cent) and the eastern region (107 per cent). This shift was particularly evident in the second half of the year….”
74. This report also
gives a graph of “Targeted killings by Region July to December” which notes
that of the 495 targeted killings Afghanistan
-wide, the highest numbers were in
the southern eastern and southern provinces. The pattern overall was a decrease in the south, central and northeast regions but increases in other parts of the
country.
(a) Kabul
IDPs in Kabul
(b) Ghazni
“As in other provinces, the Taliban combines assassination and intimidation to consolidate its hold on Ghazni, particularly targeting local Afghan security forces.”
In October 2011 the
Afghanistan
Research and Evaluation Unit noted that:
“[c]ertain groups were also identified to be more at risk in the current period. First, the Taliban target anyone who is perceived to be working for the current government, in any position. Many respondents in Ghazni city were identified to have government-related positions in a variety of roles – in the police, as government staff and even as teachers… Second, anyone who was identified as supporting or [being] part of the Taliban faced being raided, interrogated or killed by the government and coalition forces.”
In Ghazni unemployment is said to run high and the economic situation is said to be poor (ARC, p.12).
Returns Packages
84. In a note produced by
UKBA dated March 2012, assistance to returnees to Afghanistan
is said to be of
two kinds:
(1) Assisted Voluntary Return (AVR) packages
For those in the
asylum stream they consist of £500 cash on departure with a further £1,000
reintegration assistance (£1,500 for family cases) as cover for flights and
onward travel. For irregular migrants, assistance is limited to flights and
onward travel, although for vulnerable persons there is an option for Refugee
Action to apply for up to £1,000 reintegration assistance. Until August 2012
the provider in Afghanistan
is the International Organisation for Migration
(IOM). It is said to provide a meet and greet service at the airport and to deliver reintegration assistance. The latter consists of non-cash payments for certain
activities, goods and services in
Afghanistan
that help build a new life.
Reintegration options are co-ordinated at IOM Kabul’s main office.
Post-arrival, IOM assists with onward transportation and/or temporary
accommodation if required.
(2) Reintegration Services for enforced returnees
This service,
which is part of the UK/Afghanistan
/UNHCR Tripartite Returns Memorandum of Understanding, currently consists, inter alia, in reception at Kabul Airport by IOM staff
and an IOM doctor, onward transportation to the returnee’s final destination, temporary accommodation with full board for up to fourteen days at the Jangalak
Reception Centre. The reintegration component is said to consist, inter
alia, in assistance in vocational and educational training, in kind,
support towards the development of a small business and employment/job
referrals for those interested in direct employment.
UNHCR Position
86. Reference has already
been made to the UNHCR Eligibility Guidelines for Assessing the International
Protection Needs of Asylum Seekers from Afghanistan
, 17 December 2010. They
include references to a considerable body of empirical data about conditions in
Afghanistan
, as well as UNHCR’s evaluation of it in the form of guidelines.
The Guidelines identify two types of risk category. The first concerns persons
with a specific risk profile:
“UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include [NB. For convenience we start each subcategory on a separate line:]
(i) individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the International Security Assistance Force (ISAF);
(ii) humanitarian workers and human rights activists;
(iii) journalists and other media professionals;
(iv) civilians suspected of supporting armed anti-Government groups;
(v) members of minority religious groups and persons perceived as contravening Shari’a law;
(vi) women with specific profiles;
(vii) children with specific profiles;
(viii) victims of trafficking;
(ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals;
(x) members of (minority) ethnic groups; and
(xi) persons at risk of becoming victims of blood feuds.
87. The second type of risk category is
based on risks to persons arising from generalised violence in particular parts
of Afghanistan
. Concerning it, the Guidelines state that:
“In light of the worsening security environment in
certain parts of the country and the increasing number of civilian casualties
UNHCR considers that the situation can be characterized as one of
generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost
provinces. Therefore, Afghan asylum-seekers formerly residing in these
areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition,
given the fluid and volatile nature of the conflict, asylum applications by
Afghans claiming to flee generalized violence in other parts of Afghanistan
should each be assessed carefully, in light of the evidence presented by the
applicant and other current and reliable information on the place of former
residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.” (Emphasis added).
In relation to internal relocation the Guidelines state:
“UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary.”
89. In Safe at Last:
Law and Practice in Selected EU Member States with respect to Asylum Seekers
Fleeing Indiscriminate Violence, UNHCR, July 2011, the authors note in relation
to Afghanistan
at p22 that:
“…it was UNHCR’s view at the time of the research in 2010 that there was a worsening security situation in certain parts of the country – in particular Helmand, Kandahar, Kunor and parts of Ghazni and Khost province – with high levels of violence and human rights violations linked to the conflict. Moreover, other provinces including Uruzgon, Zabul, Paktita, Nangahar, Badghis, Paktya, Wardak and Kunduz were also experiencing significant although fluctuating levels of violence. The violence continued to cause significant population displacement and high numbers of civilian casualties, in particular due to suicide attacks and the use of improvised explosive devises. UNAMA documented 3,268 civilian casualties during the first six months of 2010 alone.”
UKBA Operational Guidance Note (OGN) v9, 20 February 2012
90. UKBA Operational Guidance Notes are not, of course, a source of COI, although they do sometimes contain some references to relevant COI; they are essentially a source of guidance to caseworkers on relevant issues related to country conditions: see EM and others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), para 114. The paragraphs of the current OGN dealing with Article 15(c) are 3.6.11-3.6.12. They state:
“3.6.11 At
the end of 2010, UNHCR considered that the worsening security environment and
increasing number of civilian casualties was such that the situation in
Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces could be
characterised as one of generalised violence. However, whilst there is
indiscriminate violence in some parts of Afghanistan
, it is not currently at
such a level in
Afghanistan
generally or a material part of it, that
substantial grounds exist for believing that any civilian would, solely by
being present there, face a real risk of serious harm. Given the complexity
and fluidity of the situation, asylum applications by Afghans claiming to flee
generalised violence in parts of
Afghanistan
should each be assessed carefully,
in light of the current country information specific to the profile of the
applicant.
3.6.12 To establish a claim under Article 15(c) of the Qualification Directive it will therefore be necessary for a claimant to establish that particular factors place him or her at additional risk above that which applies to the civilian population generally, such that he or she is at real risk of serious harm from the levels of indiscriminate violence that do exist, and that internal relocation to a place where there is not a real risk of serious harm is not reasonable. Case owners must consider carefully whether the existence of such factors mean that the harm they fear is not in fact indiscriminate, but targeted, if not at them personally, at a Refugee Convention defined population to which they belong, in which case a grant of asylum is likely to be more appropriate.”
91. At paras 2.3.7-2.3.8, in a subsection dealing with actors of protection, the OGN states:
“2.3.7 State protection outside of Kabul will only be accessible in exceptional cases. In Kabul the authorities, including the ISAF forces, are in general willing to offer protection to citizens. However, case owners must bear in mind that for the reasons above, their ability to provide effective protection is limited. It is important that case owners refer to the most up to date country information to ascertain whether in the circumstances prevailing at the time the decision is made, effective protection is available in Kabul for an individual applicant, taking full account of their personal circumstances.
2.3.8 Effective protection is not available, even in Kabul, for single women or female heads of household without a male support network.”
92. In the subsection dealing with internal relocation the OGN states at paras 2.4.5-2.4.7:
“2.4.5 The traditional extended family and community structures of Afghan society continue to constitute the main protection and coping mechanism, particularly in rural areas where infrastructure is not as developed. Afghans rely on these structures and links for their safety and economic survival, including access to accommodation and an adequate level of subsistence. In certain circumstances, relocation to an area with a predominantly different ethnic/religious make-up may also not be possible due to latent or overt tensions between ethnic/religious groups.
2.4.6 In practice, all returns are currently to Kabul. Careful consideration must be given to any other place of proposed internal relocation and how it will be accessed, taking account of the latest security, human rights and humanitarian conditions in the prospective area of relocation at the time of the decision, including the availability of traditional support mechanisms, such as relatives and friends able to host the displaced individuals; the availability of basic infrastructure and access to essential services, such as sanitation, health care and education; and their ability to sustain themselves, including livelihood opportunities. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control.
2.4.7 Unescorted
internal travel for single women and female heads of household who do not have
a male support network can be extremely difficult. Discrimination and
harassment are common, as would be establishing themselves in an area where
they did not have such a support network. Sufficient protection is not
available to them, even in Kabul, and it would therefore generally be unduly
harsh to expect single women and female heads of household who have a well-founded fear of persecution in one part of Afghanistan
, and who do not have a male support network,
to relocate internally.”
Tribunal Country Guidance and related domestic case Law
93. In PM and Others
(Kabul – Hizb-e Islami) Afghanistan
CG [2007] UKAIT 00089, the Tribunal held
that it was possible for failed asylum seekers to relocate to Kabul if they had
a well-founded fear of what might happen to them in their home areas. In RQ
(Afghan National Army – Hizb-e Islami – risk)
Afghanistan
CG [2008] UKAIT 00013
the Tribunal expressed a similar view.
94. The main focus of
this case being on Article 15(c), however, it is essential to focus primarily
on Tribunal country guidance cases that have addressed the applicability of
this provision to conditions in Afghanistan
in the light of the legal guidance
given by the CJEU in Case C-465/07 Elgafaji [2009] WLR and QD (Iraq)
v Secretary of State for the Home Department [2009] EWCA Civ 620.
95. The first such case
was GS (Article 15(c): indiscriminate violence) Afghanistan
CG [2009] UKIAT 00044. This held that the objective evidence did not establish
that the Article 15(c) threshold was reached for mere civilians in any part of
Afghanistan
. At para 117 the Tribunal stated:
“In assessing the evidence, the one thing which struck us particularly was Professor Farrell’s assertion that the
number of civilian fatalities directly caused by both sides to the conflict in Afghanistan
(including those assassinated by the Taliban/Al Qaeda) was low in comparison
with conflicts of a similar size elsewhere. This emerges in particular from
the questions put to Professor Farrell regarding page 17 of his report. Whilst
it is apparent that any assessment of risk to civilians needs to cover not only
those casualties, but also those who are injured as a result of intimidation by
insurgents (which the table on that page does not cover and as to which no reliable
data was presented), Professor Farrell was nevertheless clear that the current
conflict in
Afghanistan
cannot be said to involve a high level of civilian
casualties (albeit that he urged us to take account of what he considered were the conflict’s indirect effects). We conclude that the number of direct victims of
indiscriminate violence, arising as a result of the armed conflict, does not demonstrate that the appellant, upon whom the burden of proof lies, has established that there
is such a high level of indiscriminate violence that there are substantial
grounds to establish that he would, solely by being present in that country,
face a real risk which threatens his life or person. We reach this view
bearing in mind what the Court of Justice had to say. The appellant has not
shown that incidents of indiscriminate violence are happening on so wide a scale, and/or in such a way, as to pose a serious threat of real harm. So far as indirect
effects of violence are concerned, we have already explained why we do not
consider that these can be said to fall within the scope of Article 15(c).”
96. The next CG case to
address Article 15(c) risks was HK and Others (minors – indiscriminate
violence – forced recruitment by the Taliban) Afghanistan
CG [2010] UKUT 378 (IAC). Whilst confined to issues relating to risks to minors, including
Article 15(c) risk, the Upper Tribunal noted that it saw no reason to take a
different view from GS regarding Article 15(c) risks in
Afghanistan
more widely.
97. Likewise, in AA
(unattended children) Afghanistan
CG [2012] UKUT 00016 (IAC), whilst
focusing its guidance on children, the Tribunal at para 65 again saw no reason
to take a different view more widely about Article 15(c) risks in
Afghanistan
,
although it noted at paras 47-66 that the background material demonstrated an increase in indiscriminate violence since 2009 (paras 47 and 63), a worsening
security environment in certain parts of the country and increasing civilian
casualties (paras 48-53). It noted at para 53 that the situation in Kabul had
been reported as deteriorating and that many returning refugees were going
hungry and were unemployed (paras 56 and 58). It highlighted sources noting
the shortcomings in the ability of the Afghan government to provide effective protection (para 60), but concluded that “the evidence as to state failure does not
demonstrate a significant decline since 2009” (para 66). In the same para it
noted that “there is no clear evidence as to the scale of increase in displaced
persons since 2009”.
98. It is to be noted, of
course, that in HK (Afghanistan
) and Ors v Secretary of State for the Home
Department [2012] EWCA Civ 315 the Court of Appeal remitted the
appeals of HK and two others to the Upper Tribunal on the basis that HK
was on all fours with DS. DS’s appeal had earlier been remitted to the
Upper Tribunal in DS (
Afghanistan
) v Secretary of State for the Home
Department [2011] EWCA Civ 305 so that the Tribunal could give consideration to the best interests of the child duty under s.55 of the Borders, Citizenship and
Immigration Act 2009 and to the significance of efforts made by the Secretary of State to discharge her duty under Article 19(3) of the Reception
Directive as implemented into domestic law by the Asylum Seekers (Reception
Conditions) Regulations 2005. That duty is to endeavour to trace the members
of the minor’s family as soon as possible after the minor makes his claim for
asylum (reg 6). It is significant, however, that the Court of Appeal in HK
(
Afghanistan
) made no comment on the country guidance given in HK
and that in any event the Tribunal’s current country guidance in HK now
has a separate (and updated) basis as set out in AA.
99. We should also make
mention at this stage of two further country guidance cases of the Upper
Tribunal, which although not dealing with Afghanistan
, have examined both the
law on Article 15(c) and its application to armed conflicts situations: AMM
and Others (conflict; humanitarian crisis; returnees; FGM) Somalia CG
[2011] UKUT 00445 (IAC) and MK
(documents - relocation)
Iraq CG [2012] UKUT 126 (IAC).
Both of these post-date the Court of Appeal judgment in HM (Iraq) [2011] EWCA Civ 1536 holding that HM and others (Article 15(c)) Iraq CG
[2010] UKUT 331 (IAC) (hereafter “HM”) in the Tribunal was vitiated by
legal error.
Foreign Cases
(i) European Court of Human Rights (ECtHR)
(a) Case of N v Sweden, App.no. 23505/09, 20 July 2010
In N v Sweden the applicant was a
female Afghan national from Afghanistan
who had separated from her husband and
tried in vain to divorce him. At para 52 the ECtHR stated that:
“Whilst being aware of the
reports of serious human rights violations in Afghanistan
…the court does not
find them to be of such a nature as to show, on their own, that there would be
a violation of the Convention if the applicant were to return to that country.
The Court thus has to establish whether the applicant’s personal situation is
such that her return to
Afghanistan
would contravene Article 3 ECHR.”
The Court proceeded to find at para 55 that
women were at risk of ill-treatment in Afghanistan
“if perceived as not
conforming to the gender roles ascribed to them by society, tradition and even
the legal system”. Having noted the great difficulties women faced in
obtaining protection against domestic violence or after leaving their house
without a male guardian (paras 57-59), the Court found at para 60 that “[w]omen
without male support and protection generally lack the means of survival, given
the social restrictions on women living alone, including the limitation on
their freedom of movement.”
(b) Case of Husseini v Sweden, App.No. 10611/09, Judgment 13 October 2011
100. In Husseini v Sweden, the ECtHR (5th Section) dealt with the case of an applicant who was
an ethnic Hazara, Shia Muslim from Ghazni (his father was of Hazara ethnicity,
his mother of Pashtun ethnicity). At para 84, under the sub-head “The general
situation in Afghanistan
”, the Court in a majority decision stated that it
considered “there are no indications that the situation in
Afghanistan
is so
serious that the return of the applicant would constitute, in itself, a
violation of Article 3 of the Convention”.
“9.8 In the present case,
having regard inter alia, to the government’s submission… and the UNHCR
Guidelines, it appears that an internal relocation alternative is available to
the applicant in Afghanistan
…”.
(c) JH v UK App.No.48839/09, [2011] ECHR 2251, judgment 29 November 2011
In JH , which concerned an Afghan
national from Kabul, the ECtHR (4th Section), again considering inter alia, the December 2010 UNHCR Eligibility Guidelines together with more recent
country information, reached a similar conclusion as to the general situation
in Afghanistan
(see para 55).
(ii) Leading
Swiss cases dealing with Article 15(c) in the context of Afghanistan
104. The same court’s decision D-7950/2009 of 30 December 2011 dealt with whether it would be reasonable for a “Sunni
Pashtun” applicant to return to Mazar-i-Sharif in Samangan province. The court
held there was no general danger there, nor did the applicant’s circumstances
make his return there unreasonable (he had a stable family network there, he
was educated and had already worked as an owner of a shop in Afghanistan
prior to his departure).
(iii) Other national decisions
105. In response to a
direction from the Tribunal the respondent sent a request for information about
recent court decisions on Article 15(c) applicable to Afghanistan
to the relevant authorities in 14 Member States and also Switzerland. The responses
confirm the view expressed by UNHCR in Safe at Last? in July 2011 that
there are wide divergences of approach. The question the respondent asked was “have your superior courts recently determined a case or cases, in which they had
to consider whether all or part of
Afghanistan
reaches the threshold for
Article 15(c)?” Some of the replies went further.
106. In certain Member
States, e.g. Finland, the position is reported as being that “no part of Afghanistan
reaches the threshold of Article 15(c)”; this position is said to have been
confirmed by the Finnish Appeals Court.
107. In other Member States
certain regions of Afghanistan
were considered to cross the Article 15(c)
threshold or to be generally unsafe. In Belgium the majority of
Afghanistan
’s regions are considered unsafe but not Kabul and certain northern, western and central
regions (which are said to be safe). It is added, however, that the Belgian
Council of State had confirmed that “more than 50% of the Afghan territory
(mainly the south and east) [qualifies] under Article 15(c)”. In France “indiscriminate violence has so far been determined in the provinces of Baghlan, Helmand, Kabul, Kunar, Kunduz, Bamion, Logor, Nangahar, Sorobi and Wardak”, although it appears that
this is in the context of cases where the applicant has “individualised” his
threat. So much is suggested by the response going on to state that the French
asylum court has examin[ed] this requirement of “individualisation” in Kapisa,
Ghazni and Parwan, although in respect of the last mentioned, two cases of the
court have reached different views.
108. In other countries
there is significant disagreement even among courts within a Member State: e.g.
in Germany it is reported that “[w]hile the higher administrative courts of
Bavaria (VGH Munchen) and Baden-Württemberg (VGH Mannheim) are currently
unmistakenly [sic] denying an overall danger for every non-military, civilian
persons in all or part of Afghanistan
, the higher administrative court of
Hessen (VGH Kassel) maintains a somewhat different point of view”.
110. In Spain, Afghanistan
as a whole is considered to cross the Article 15(c) threshold.
B. LEGAL FRAMEWORK
“Article 9
Acts of persecution
1. Acts of persecution within the meaning of Article 1A of the Geneva Convention must:
(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).
2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;
(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);
(f) acts of a gender-specific or child-specific nature.
3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.
Article 15
Serious harm
Serious harm consists of:
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
Article 8
Internal protection
1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.
2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member states shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.
3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.”
These provisions have been implemented in UK law by the Refugee or Person in Need of International Protection Regulations 2006 and certain provisions of the Statement of Changes in the Immigration Rules (HC395) (paras 334-342 in particular), but it is convenient to refer to provisions of the Qualification Directive as (except where our national provisions are more generous) these are the common point of reference for judges in the EU Member States.
In relation to Article 15(c), the Tribunal in AMM at para 328 (observing that in overturning the Tribunal country guidance in HM case, the Court of Appeal in HM (Iraq) had expressed no criticism of what was said about the applicable law) endorsed the following summary of the legal principles as set out in HM at para 67 as follows:
“(a) The Article seeks to elevate the state practice of not returning unsuccessful asylum seekers to war zones or situations of armed anarchy for reasons of common humanity into a minimum standard (QD [i.e. QD(Iraq) [2009] EWCA Civ 620] at [21]).
(b) The scope of protection is an autonomous concept distinct from and broader than Art 3 protection even as interpreted by the European Court of Human Rights (ECtHR) in NA v United Kingdom (Elgafaji at [33]-[36]; QD at [20], [35]; HH and Others) at [31].
(c) It is concerned with ‘threat…to a civilian’s life or person’ rather than to specific acts of violence…the threat is inherent in a general situation of …armed conflict… The violence that gives rise to the threat is described as indiscriminate, a term which implies that it may extend to people irrespective of their personal circumstances (Elgafaji [34]).
(d) The Article is intended to cover the ‘real risks and real threats presented by the kinds of endemic acts of indiscriminate violence – the placing of car bombs in market places; snipers firing methodically at people in the streets – which have come to disfigure the modern world’. It is concerned with ‘serious threats of real harm’ (QD at [27] and [31]).
(e) ‘Individual’ must be understood as covering harm to civilians irrespective of their identity where the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level that substantial grounds are shown for believing that a civilian… would solely on account of his presence on the territory… face a real risk of being subjected to the serious threat’ (Elgafaji [35]).
(f) ‘The more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required’ (Elgafaji [39]).
(g) A consistent pattern of mistreatment is not a necessary requirement to meet the real harm standard. ‘The risk of random injury or death which indiscriminate violence carries is the converse of consistency’ (QD at [32]).
(h) There is no requirement that the armed conflict itself must be exceptional but there must be ‘an intensity of indiscriminate violence great enough to meet the test spelt out by the ECJ’ and this will self evidently not characterise every such situation (QD at [36]).
(i) ‘The overriding purpose of Article 15(c) is to give temporary refuge to people whose safety is placed in serious jeopardy by indiscriminate violence, it cannot matter whether the source of the violence is two or more warring factions (which is what conflict would ordinarily suggest) or a single entity or faction’ (QD at [35]).
(j) ‘Civilian’ means all genuine non-combatants at the time when the serious threat of real harm may materialise (QD [37]).”
112. More recently, the Tribunal in MK at para 101 has given a similar endorsement of the above summary.
In relation to internal relocation, the leading UK cases are Januzi v Secretary of State for the Home Department [2006] UKHL 5 and AH (Sudan) v Secretary of State for the Home Department. In Januzi their lordships appeared to expressly reject a submission that assessment of the circumstances relevant to whether there was a viable internal relocation alternative had to be done by applying human rights norms.
“In paragraph 21 of my opinion in Januzi I summarised the correct approach to the problem of internal relocation in terms with which all my noble and learned friends agreed:
‘The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so….There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department, [2002] 1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls… All must depend on a fair assessment of the relevant facts’.
Although specifically directed to a secondary issue in the case, these observations are plainly of general application. It is not easy to see how the rule could be more simply or clearly expressed. It is, or should be, evidence that the enquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant. There is no warrant for excluding, or giving priority to, consideration of the applicant’s way of life in the place of persecution. There is no warrant for excluding, or giving priority to consideration of conditions generally prevailing in the home country. I do not underestimate the difficulty of making decisions in some cases. But the difficulty lies in applying the test, not in expressing it. The humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution in their home country or some part of it; it is not to procure a general levelling-up of living standards around the world, desirable though of course that is.”
“As the UNHCR put it in their very helpful intervention in this case:
‘…the correct approach when considering the reasonableness of IRA [internal relocation alternative] is to assess all the circumstances of the individual’s case holistically and with specific reference to the individual’s personal circumstances (including past persecution or fear thereof, psychological and health condition, family and social situation, and survival capacities). This assessment is to be made in the context of the conditions in the place of relocation (including basic human rights, security conditions, socio-economic conditions, accommodation, access to health care facilities), in order to determine the impact on that individual of settling in the proposed place of relocation and whether the individual could live a relatively normal life without undue hardship’.
I do not understand there to be any difference between this approach and that commended by Lord Bingham in paragraph 5 of his opinion. Very little, apart from the conditions in the country to which the claimant has fled, is ruled out.”
At paras 21-22 she added:
“21. We are also all agreed that the test for internal relocation under the Refugee Convention is not to be equated either with a ‘well-founded fear of persecution’ under the Convention or with a ‘real risk of ill-treatment’ contrary to article 3 of the European Convention on Human Rights. By definition, if the claimant had a well-founded fear of persecution, not only in the place from which he has fled, but also in the place to which he might be returned, there can be no question of internal relocation. The question pre-supposes that there is some place within his country of origin to which he could be returned without fear of persecution. It asks whether, in all the circumstances, it would be unduly harsh to expect him to go there. If it is reasonable to expect him to go there, then he can no longer claim to be outside his country of origin because of his well-founded fear of persecution. Mercifully, the test accepts that if it is not reasonable to expect him to go there, then his continued absence from his country of origin remains due to his well-founded fear of persecution.
22. Further, although the test of reasonableness is a stringent one – whether it would be ‘unduly harsh’ to expect the claimant to return – it is not to be equated with a real risk that the claimant would be subjected to inhuman or degrading treatment or punishment so serious as to meet the high threshold set by article 3 of the European Convention on Human Rights. As Lord Bingham points out, this is not what was meant by the references to article 3 in Januzi, including what was said by my noble and learned friend, Lord Hope of Craighead, when he referred to ‘the most basic of human rights that are universally recognised’ at para 54. Obviously, if there were a real risk of such ill-treatment, return would be precluded by article 3 itself as well as being unreasonable in Refugee Convention terms. But internal relocation is a different question.”
C. SUBMISSIONS
Mr Vokes and Ms Rutherfords’ written submissions
115. The central tenet of the
written submissions on behalf of the appellant was that given the very
significant variations in levels of intensity of indiscriminate violence in
different provinces of Afghanistan
, the Tribunal should apply the same
“differential” model it had applied in the Somali and Zimbabwean contexts.
Accordingly the country guidance cases of GS and AA, insofar as
they treated the situation in
Afghanistan
as a whole as decisive, should be
regarded as misleading. At the very least the issue of the “differential” for
indiscriminate violence in different parts of the country was not adequately explored in either GS or AA. By reference to the ARC report and the
UNAMA Annual report for 2011, it was clear that the geographical reach of the
armed conflict was spreading and that the south and south east regions now
accounted for 64% of all incidents, with the situation in the central area,
including Kabul province, becoming increasingly unstable. As a result the south
east and east should be regarded as areas which had now crossed the Article
15(c) threshold, with the Central areas (including Kabul) being areas which
“may” cross that threshold and the west and north as areas where there was a
possibility of that threshold being crossed.
117. Insofar as the
Tribunal had dealt with comparison with other conflicts in the world, and had
taken the view in GS that the level of civilian casualties in
Afghanistan
was “surprisingly low”, Mr Vokes and Ms Rutherford sought to rely
on the report by Dr Seddon which showed that a present comparison with the
conflict in Somalia in terms of deaths and injuries would appear to show (in
relation to a majority of observers) that the level of casualties is
significantly higher over the immediate past period of time in
Afghanistan
than
in Somalia: he referred to AMM, para 254.
The appellant’s
written submissions also sought to persuade us by reference to Elgafaji para
39 (which sets out what has become known as the “sliding-scale” principle as follows:
“…the more the applicant is
able to show that he is specifically affected by reason of factors particular
to his personal circumstances, the lower the level of indiscriminate violence
required for him to be eligible for subsidiary protection”) and GS, paras 62 and 74, that even if
we were to find that ordinary civilians are not at Article 15(c) risk anywhere
in Afghanistan
, we should nevertheless identify intermediate categories of
persons who might be at risk by virtue of being less able than ordinary
civilians to avoid the on-going violence. We refer to these as “intermediate
categories” as those submissions clearly meant to identify categories falling
short of the outright risk categories ((i)-(xi)) as identified by UNHCR in its
17 December 2010 Eligibility Guidelines cited at para 86 above. Mr Vokes and
Ms Rutherford gave as examples of intermediate categories:
“ fruit sellers outside public buildings, day labourers on state construction projects who need as a necessity of life to be employed in this fashion or small farmers or landless labourers who out of economic necessity have to keep farming in situations of armed warfare breaking out on their land or the land that they work. The latter category would include businessmen, more senior state officials, war lords, large landowners.”
120. As regards the
appellant, his home province of Ghazni is one of the worst-affected areas of Afghanistan
in relation to levels of violence. In such circumstances he should be considered as at Article 15(c) risk in his home area. It is accepted he has an uncle and aunt in Kabul, but it was not accepted it would be reasonable to expect the appellant to relocate
to Kabul, in view of the above considerations.
Mr Vokes’ oral submissions
121. Amplifying his and Ms
Rutherford’s written submissions, Mr Vokes contended that the background evidence now to hand showed that the situation in Afghanistan
had worsened since the UNHCR Report
of December 2010 when five provinces (including parts of Ghazni and Khost) were
considered to be in a situation of generalised violence at the Article 15(c)
threshold making it unsafe to return anyone there.
122. Significant gaps in
the evidence when the Upper Tribunal looked at the situation in AA (Afghanistan
), e.g. as to the number of IDPs in different regions, had now been filled. The
UNAMA reports for 2010-2011 showed that whilst the south and south-east
provinces accounted for 64% of all security-related incidents, the armed
conflict had increased its spread geographically. As Amnesty International
said, it was a “deteriorating situation”. In addition, the nature of the
armed conflict had become more dangerous for civilians, with the use by the
insurgency of IEDs having caused increasing rates of civilian death and casualties.
125. Mr Vokes acknowledged
that in order for a person to show a real risk on return of persecution,
serious harm or ill-treatment contrary to Article 3 ECHR, merely on the basis
of being a civilian, there was a high threshold, but he considered that the latest evidence demonstrated that in certain areas of Afghanistan
, including
Kabul and Ghazni, that threshold had been crossed, at least in relation to
Article 15(c) serious harm.
126. Civilian casualties
had doubled since 2007. The tactics and methods used by parties to the armed
conflict, particularly the insurgents, increasingly threatened and harmed
civilians. Even the targeted killings, said Mr Vokes, had collateral side effects on civilians. There was no bright line to be drawn between targeted killings and
indiscriminate violence. There was clearly still a significant degree of under-reporting. Bearing in mind the Upper Tribunal’s acceptance that other metrics
than civilian casualties were relevant, including that of population
displacement, there had been a very considerable increase in the number of
IDPs, from 102,658 in 2010, 143,000 in 2011 to 185,632 in the early months of
2012, which could not be put down to natural disasters. Armed attacks had
caused a great deal of displacement in the past two years. UNHCR already had
real concerns at the failure to reintegrate of more than 40% of persons who had
returned to Afghanistan
. The UN had access to less than half the country.
Tracing Tribunal country guidance cases starting with GS, it was evident that things had been getting steadily worse even before AA which itself had noted
that there had been a deterioration in the situation since HK. The degree of risk had clearly increased and it was time to recognise that a significant number of
provinces in
Afghanistan
were unsafe. There was now considerably more information available about the intense nature of the armed conflict in
Afghanistan
than had been before the Tribunal in GS, HK and AA. The
Tribunal had to take a holistic approach to the conflict, taking into account,
for example, that economic circumstances might prevent a number of persons
leaving an area beset by armed conflict.
Mr Blundell’s written submissions
133. Mr Blundell’s skeleton
argument on behalf of the Secretary of State took issue with the apparent
attempt by Dr Seddon and Mr Vokes in written submissions to question the
historic validity of the country guidance given by the Tribunal in GS
and AA. It also maintained that Mr Vokes was wrong to portray those
cases as having confined themselves to conditions in Afghanistan
as a whole
without regard to parts of the country; on the contrary they had properly
applied the Court of Justice guidance in Elgafaji which required (see
paras 35 and 43 of that ruling) asking whether there was a sufficiently high
level of indiscriminate violence to reach the Article 15(c) threshold not just
in a country but in any material part of it.
134. Turning to consider the evidence, in particular the UNAMA reports, relating to whether the Article 15(c)
threshold was met in either Afghanistan
as a whole or certain parts of it, the
respondent’s skeleton accepted that the situation has, to a limited degree, deteriorated since 2010, but, by reference to rates for civilian deaths etc, argued
that: (i) the actual change in the number of civilian deaths is small (an
increase of 231 between 2010 and 2011); (ii) the rate of year-on change has
slowed substantially (from 15% in 2010 to 8% in 2011); (iii) the number of deaths whose source is not known has fallen from 326 to 279; (iv) the UN Secretary General
report of 13 December 2011 refereed to a decline of “security-related events”
in the last three months of 2011; (v) in contrast to the view taken in GS
(which assumed a ratio of 8 injuries for every civilian death), the figures
available now showed a ratio of less than 2:1; and (vi) ANSO figures for
civilian deaths were in fact lower and showed a reduction in the total figure
for civilians deaths from 2,534 in 2010 to 2,427 in 2011. Hence the overall
picture was little different from that considered by the Tribunal in AA,
with reference to the situation in May 2011. In addition, some allowance had to
be made for the fact that a significant number of deaths were targeted killings:
185, 431 and 495 in 2009, 2011 and 2011 respectively. In most of these killings
the victims were associated with NGOs, local elders, private security
contractors and ANP recruits or civilian government officials and workers. The
number of deaths caused by pro-government forces had also significantly decreased. The figures for combatant casualties for US and collation troops were relatively low
(711 in 2010 and 566 in 2011). Insurgents killed were said by Brookings
Institute figures to be 3,200 in 2011; these demonstrated the success of
security operations generally. Drawing on the CSIS report for 2012 (see above
para 58), Mr Blundell said that comparing indiscriminate violence in Iraq,
where the level of violence had decreased drastically since 2006/7, the figures
of civilian casualties for the two countries in 2009, 2010 and 2011 were presently
roughly the same
135. Turning to other
“metrics”, although the number of IDPs in Afghanistan
had increased (UNHCR
estimating 433,066 in June 2011), there were many factors underlying these high numbers, including previous years of conflict and natural disasters.
Moreover, five million refugees had actually returned to
Afghanistan
since 2002 and such returns were on-going, with heavy involvement from UNHCR, ICRC and
other humanitarian agencies.
138. As to the facts of the
appellant’s case, the respondent did not accept that the appellant had
established a real risk of Article 15(c) serious harm in his home area of
Ghazni. Alternatively, if which was denied, the Tribunal should find that the
Article 15(c) threshold was met in the appellant’s home province of Ghazni,
then it would be reasonable for him to relocate to Kabul or, indeed, any other area of Afghanistan
.
Mr Blundell’s oral submissions
139. Mr Blundell began with three points about the relevant law. First, he submitted that although Mr Vokes
appeared to have given ground in relation to certain arguments he had advanced
in his written submissions, the Secretary of State wished to reiterate the main
points raised in the skeleton argument submitted on her behalf. To the extent
that the expert report from Dr Seddon sought to cast doubt on the historic
validity of existing Tribunal country guidance cases, he pointed out that there
was simply not the assemblage of background evidence to justify revisiting
them. Insofar as Mr Vokes sought to argue that GS and AA had not
undertaken an analysis of the levels of violence in Afghanistan
province-by-province, that was incorrect, albeit the evidence they had was not
as developed and as detailed as now available: both GS and AA did
furnish a “differential” analysis by reference to the Brookings Institute
data. Indeed in AA the Tribunal’s guidance as set out at paras 92-93
expressly emphasised the importance of location.
145. As to the evidence of Dr Seddon, which asserted that the indiscriminate violence in Afghanistan
had now reached Article 15(c) levels, there were a number of reasons for attaching
little weight to his report. It had not been tested by cross-examination; his
knowledge of
Afghanistan
was extremely limited; in contrast to Dr Giustozzi, he
had no up-to-date information about the situation on the ground; some of his
assertions, (e.g. that at para 3.8 of his report, which maintained that
Professor Farrell’s evidence in GS did not include civilians killed by
the Taliban and other insurgent forces), were factually wrong (see GS,
paras 85 and 106); it was apparent that he had not read the underlying reports disclosed by Wikileaks in 2010; his opinion sought to furnish his own analysis
of legal issues, outside his own expertise.
146. As regards Dr
Giustozzi, whilst the respondent accepted he had considerable expertise on Afghanistan
, the report he had produced for this case had several blemishes. It was clear
he had not read the appellant’s appeal documentation properly; paras 1-18 of
his report wrongly assumed that the appellant’s account had been accepted as
credible; Dr Giustozzi had committed the same error in GS (see para
76). In any event his report did not assist the appellant’s case since he
clearly did not consider, the level of risk in
Afghanistan
as a whole or in Kabul or Ghazni to be at a high level.
147. Mr Blundell turned to the general issue of the levels of indiscriminate violence in Afghanistan
. The respondent accepted, he said, that there had been deterioration in the situation
since AA, but it was relatively modest and the rate of increase in key
indices such as civilian casualties had slowed. There was now less need to
make allowances for under-reporting as accuracy in data collection had
improved. As noted in the respondent’s skeleton, whereas Professor Farrell had
posited a ratio of 8:1 for numbers wounded as compared with numbers killed,
figures now available showed less than two injuries for every death. The increased number of targeted killings did reduce the level of risk to civilians at
large.
148. The respondent noted, said Mr Blundell, that Mr Vokes did not seek to argue that Afghanistan
as a whole
was at an Article 15(c) level of risk. The respondent did not accept, however,
Mr Vokes’ contention that several areas of
Afghanistan
were at such a level.
There had been a very significant drop in levels of violence in the worst
areas, Kandahar and Helmand. There had been an increase in such levels in
Ghazni, but they were still modest and it was safe to infer a significant
number of the casualties in that province arose from targeting by the
insurgents of governmental employees.
150. Mr Blundell said that the respondent was not able to agree with the analysis given by UNHCR in its
December 2010 Guidelines (and reiterated since then). It was pertinent that
UNHCR itself was continuing to facilitate the return of large numbers of
displaced persons to Afghanistan
, although that body made clear its concern
about the significant numbers of those who had failed to re-integrate. It was
difficult to regard the serious problems of IDPs as having been the simple
product of the present armed conflict; their problems had their origins in
social, political turmoil and floods and natural disasters going back four decades.
151. In relation to any
return to Ghazni, the evidence did not show that that province was at Article
15(c) levels of risk and, given that government security forces patrolled
highways, it could not be said it was unsafe to travel there. Indeed, apart from areas controlled by the insurgents, there were no real obstacles to a person
travelling anywhere in Afghanistan
.
D. OUR ASSESSMENT
(a) General
Initial observations
153. We have to decide this case taking into account the entirety of the evidence and bearing in mind that,
whilst the burden of proof rests on the appellant, the standard of proof is a
relatively low one and requires us to apply anxious scrutiny. In addressing the
questions raised concerning Article 15(c) of the Qualification Directive, we
have to decide what the situation is in Afghanistan
now so as to make a
forward-looking assessment of risk.
154. We have already made several observations at paras 37-44, so as to help the reader have a better understanding of the figures set out subsequently. We shall not repeat these here, but simply note that they too form part of our assessment. We do, however, venture one further observation here. It relates to the fact that our task in this appeal is limited to an examination of the Article 15(c) question. The appellant applied for international protection and his appeal against refusal of his application by the respondent resulted in his appeal being dismissed by the First-tier Tribunal on asylum and Articles 2 and 3 ECHR grounds but being allowed on subsidiary protection (humanitarian protection) grounds. There was no cross-appeal and permission to appeal to the Upper Tribunal was only granted (to the respondent) on Article 15(c) grounds. All case management directions and the responses by the parties have proceeded on that basis. However, the fact that we are as a result confined to a consideration of Article 15(c) should not be construed as a general message by the Upper Tribunal that when dealing with asylum-related claims based wholly or significantly on risks arising from situations of armed conflict and indiscriminate violence that it will be right for decision-makers to skip over the question of refugee status or Article 15(b) subsidiary protection status and go straight to Article 15(c). On the contrary, they should ordinarily deal first with the issue of refugee eligibility and not deal with Article 3 ECHR until last. That is so for a two main reasons. First of all, decision-makers are obliged by the structure of the Qualification Directive to give primacy to the issue of eligibility for refugee protection; whereas Articles 15(b) and (c) are species of “subsidiary” protection: see recitals 3, 5. Second, to skip over refugee eligibility would be to lend support to the misconception that persons fleeing armed conflict cannot fall within the Article 1A(2) Refugee Convention definition. That has never been so, even if there has been recurrent hesitation about the criteria that should apply to such cases: see AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091, paras 17, 68.
156. As regards whether or not to deal with Article 15(b) or 15(c) first, it might seem that because the Court of Justice in Elgafaji has held that Article 15(c) has an additional scope to Article 3 ECHR that it would always be easier to address Article 15(c) first as having broader scope. But establishing subsidiary protection eligibility under Article 15(b) may sometimes be more straightforward than seeking to do so under Article 15(c). This may arise where, for example, the claimant falls within a risk category but cannot show a Refugee Convention ground (e.g. where he is at real risk of persecution/serious harm at the hands of a powerful criminal gang). It may also arise where there is a recent ECHR case that establishes comprehensively that there is an exceptionally high level of generalised violence in the claimant’s country that amounts to a violation of Article 3 ECHR (see NA v UK Application no. 25904/07, paras 115-116; Sufi and Elmi v UK Applications nos. 8319/07 and 11449/07, paras 218, 250) and there is no valid reason to take a different view. Another problem is that whilst it is now established that Article 15(c) has an additional scope to Article 3 ECHR (a near equivalent to Article 15(b) of the Qualification Directive), the ascertainment of that additional scope may not always be a simple matter.
157. The sole focus of this
case being nevertheless Article 15(c), we turn to the central issue for decision: whether the country guidance given by the Tribunal in 2009 in GS on Article
15(c) in the context of Afghanistan
stands in need of revision. In a trite
sense it must: events have moved on some three years and the state of the evidence is by definition different. But what we are concerned with is whether developments since require a different answer to be given to the question of generic risk
arising under Article 15(c) of the Qualification Directive. Whilst several
Tribunal country guidance cases since GS – HK and AA in
particular – have inevitably had regard to the post-GS state of the evidence relating to this question, they were not convened to review it and have sought to do no
more than register their understanding of the general state of affairs then
current in the context of deciding more specific issues relating to children.
“the degree of indiscriminate violence characterising the armed conflict taking place… (reach) such a high level that substantial grounds are shown for believing that any civilian, returned to the relevant country or, as the case may be, to the relevant region, would solely on account of his presence on the territory or that country or region, face a real risk of being subject to that threat ?”
160. This criticism
reflected the view embraced in HM that it was necessary in the context
of contemporary armed conflicts to adopt an “inclusive approach”, so that in
assessing whether levels of indiscriminate violence had reached the Article
15(c) threshold, all types of violence having a potential bearing were to be
taken into account: see paras 70, 75. (We note that whilst the Tribunal in HM
at para 78 appeared to consider that GS correctly took the view that, in
establishing whether there was a causal nexus between the armed conflict and
the indiscriminate violence, regard was had to indirect effects, it is not
entirely clear that GS consistently took that view: see last sentence of
para 117 cited above at para 95). However, neither party in this appeal has
sought to argue that the above failure(s) of legal approach in GS had
any material impact on its assessment of the levels of indiscriminate violence
in Afghanistan
at that time and nor do we.)
The inclusive approach
162. Whilst not asking us
to reconsider the inclusive approach, Mr Blundell urged us not to conceive it
as a fixed verity applicable to all factual situations in a uniform way, but
rather as an approach responsive to contingent facts, e.g. that the figures
given for civilian casualties and related incidents in present day Afghanistan
are inevitably imprecise and may reflect a significant level of underreporting. He pointed out that improved levels of monitoring appear to have reduced the need
to allow for underreporting as much as had been valid previously. He also
cautioned against a possible misuse of the multi-factor approach to the
analysis of armed conflict as advanced by Professor Farrell and others which
highlights the need to consider not just figures relating to civilian deaths and injuries but other “metrics” such as degree of state failure and population
displacement. We think his observations are well-made and properly reflect the
careful language used in the Tribunal case of HM (see e.g. the reference
in para 77 to an inclusive approach only being “ordinarily” appropriate and to
the fact that “There may be armed conflicts in which civilians are little
affected by the fighting going on, but far more often that is not the case”).
163. We also agree that the
degree of underreporting of civilian deaths and casualties and related indices
is an issue of fact and it is notable that in the context of Afghanistan
the systems
for collecting and analysing indicators of violence in place when GS was
decided have become more sophisticated so that, for example, the rough
indicator used by Professor Farrell of eight wounded to every one death now appears to have been an overestimate, at least in the context of
Afghanistan
.
Further, whilst the inclusive approach is an indispensable safeguard against
any artificial exclusion of relevant types of violence, it must not lead the decision-maker to run everything together and to overlook or blur important features of the
ongoing conflict, for it is only by a careful delineation and understanding of
these features that a proper assessment can be made about the levels of
indiscriminate violence for Article 15(c) purposes. Ours must be a qualitative
as well as a quantitative analysis. Thus, for example, in AMM at para
339 the Tribunal considered that, in addition to the level of civilian
casualties, another factor leading them to conclude that in Mogadishu the
Article 15(c) threshold had been crossed related to the “conduct of the
parties” by reference to the highlighting in background evidence of widespread violations of international humanitarian law.
164. In the light of the
above, we consider that whilst we must guard against any attempt to work with a
fixed equation in which in assessing the level of indiscriminate violence
targeted attacks are subtracted from the assessment of the level of civilian
casualties, it is relevant in the context of Afghanistan
to analyse such
matters as: (i) whether the violence employed by the parties to the conflict is
characterised by systematic targeting of civilians on a wide scale; (ii) whether, for example, the violence employed by the insurgents, when they have
targeted civilians, focuses in large part on certain categories of civilian
only; and (iii) whether when the insurgents target particular categories of
civilians they routinely cause heavy ”collateral” harm to civilian lives and
property. None of these observations is intended to underplay the terrible
toll the “Long War” is inflicting on the Afghan population; on the contrary, it
is to ensure that in deciding the Article 15(c) question, due regard is paid to
all relevant aspects.
The expert evidence
Dr Seddon
165. We do not consider that most of Mr Blundell’s criticisms of Dr Seddon’s report are justified.
166. Insofar as Mr Blundell was dismissive of Dr Seddon’s credentials, we note that he has good contacts with US and
British experts on Afghanistan
, with the FCO and the Royal Institute of
International Affairs and is currently preparing a book on ‘The War in
Helmand’, in which, he states, a number of publishers are interested. This
evinces an ongoing focus on the affairs of the country.
169. Another significant
shortcoming with Dr Seddon’s report was said by Mr Blundell to be that he
appears to attempt in para 6.1 to address what is essentially a legal question
about the applicability of Article 15(c) and opines that the level of
indiscriminate violence in Afghanistan
was now high enough to meet the Article
15(c) threshold (para 6.1). Whilst we agree that the Article 15(c) issue was
outside Dr Seddon’s expertise, we consider there were mitigating
circumstances. He had been directly asked to consider the evidence about “levels of indiscriminate violence in relation to Article 15(c)”
[emphasis added] and he had done his best to comply.
170. Whilst discounting the
above criticisms, we still do not find Dr Seddon’s report assists us very
much. Despite being asked by Blakemores to prepare a report which considered, inter alia, “whether the situation in Afghanistan
has changed since the case of GS”,
he appears to have taken that as a cue to analyse in retrospect the evidence of Professor Farrell in GS and the Tribunal in GS’s own conclusion on
Article 15(c). Whilst we can understand that as an academic unversed in the
workings of the Tribunal country guidance system, Dr Seddon might wish to
advance his own views on previous Tribunal country guidance, we find it hard to
understand how he thought he was adhering to the formal instructions by devoting such space to them. In any event, as Mr Vokes confirmed, the appellant has not raised
any challenge to the historic validity of GS or any other Tribunal
country guidance case on
Afghanistan
and, as has been made clear on a number of
occasions, in order for such a challenge to be made a party is expected to
present all relevant evidence pointing for and against the proposed revision:
see e.g. para 13(ii) TK (Tamils, LP updated) Sri Lanka
(Rev) CG [2009] UKAIT 00049, AM and AM (armed conflict: risk categories)
Somalia CG [2008] UKAIT 03444, at para 123. It cannot by any measure be
said that Dr Seddon’s report identified all relevant evidence; it was
essentially a statement of his opinion (based on pre- and post-GS evidence supportive of his own conclusions) in opposition to the evidence and opinion given by
Professor Farrell at the time of the GS hearing. On this point of
criticism, we do agree with Mr Blundell.
171. Dr Seddon criticises
Professor Farrell for assessing the level of civilian casualties experienced in
Afghanistan
as being “relatively low” in comparison with ‘conflicts of a
similar size elsewhere’ without apparently considering conflicts other than
Somalia, Rwanda, Cambodia, etc “although there are many others that could have
been considered”. Yet his report fails to mention any such others or demonstrate that figures for any other country cast doubt on Professor Farrell’s comparisons (at para 82 of GS Professor Farrell had given as examples
three internal conflicts where the battle death threshold was less than
1,000 but where there were massive civilian losses; these were: 2 million dead in Cambodia between 1975 and 1978, 350,000 dead in Somalia between 1990 and 1991, and
800,000 dead in Rwanda in 1994). Mr Vokes in his written submissions appears to
submit to the contrary, asserting that Dr Seddon in his report demonstrated that the comparison with (present-day) Somalia showed that levels of violence in
Afghanistan
were more severe than in that country. We cannot see that this
report states that, but as it is a potentially significant proposition in its
own right, we examine it separately below.
172. We observe as well
that Dr Seddon’s level of expertise on violence and conflict in Afghanistan
is not as research-based as we would have hoped. He is principally an expert
on parts of the world other than south-east Asia and, whilst noting that he is
planning to write a book on
Afghanistan
, we find it slightly troubling that he
should state that he had written on
Afghanistan
“most recently … on the deep history of
Afghanistan
” when in fact the publication concerned - the Journal of Conflict
Studies - appears to be of 2003 vintage (Vol 35, issue 2, 2003). A related
observation we have about Dr Seddon’s report is that, if in fact his report
draws on and is informed by his own network of contacts, he fails to demonstrate this.
Dr Giustozzi
174. Dr Giustozzi has provided reports and/or given evidence in a number of Tribunal country guidance cases including GS,
HK and AA. In relation to the report he wrote for GS, the
Tribunal noted at para 76 that he has been accepted by the Tribunal as an
expert on Afghanistan
in a number of previous cases. We note from his CV for
his report in this case that he has continued to publish materials on the
conflict in
Afghanistan
and to visit
Afghanistan
regularly, having last been
there in September-October 2011 in Kabul.
175. At para 76 of GS
the Tribunal noted that his report for that appeal was of limited value
“because it was prepared on the assumption that the appellant’s fear of Gul
Karim [a warlord] and land grabs was correct”. It is somewhat unfortunate to
find that Dr Giustozzi’s report prepared for this appeal makes a similar
misplaced assumption in respect of the appellant’s claimed fear of a different
warlord. Having noted that paras 4-18 of his report (and several other
passages) appear to address aspects of the appellant’s account that had
previously been rejected, we asked to see the letter written by Blakemores
formally instructing him. It is clear from this letter that its author sought
Dr Giustozzi’s opinion not only on the country guidance issues the Tribunal had
identified (to consider the current position with regard to Article 15(c) and
whether Afghanistan
had changed since GS) but also the appellant’s
original account. That is an unfortunate blemish on the firm’s otherwise
excellent preparation for and handling of this appeal and in our view it
largely excuses Dr Giustozzi’s faithful attempt to respond. That said, we
concur with Mr Blundell that the fact that Dr Giustozzi devoted space to the
appellant’s account does not suggest that he had carried out in full the
reading of all the case documents sent to him which he said he had done (see
para 2 of his report), since those documents included the First-tier Tribunal decision and the subsequent Upper Tribunal decision stating that the findings of fact of the
First-tier Tribunal Judge were to stand.
176 As regards the passages
in his report that address the general situation in Afghanistan
in terms of the
level of violence and risk on return, we attach significant weight to them
although it remains, of course, for us to consider their purport in the context
of the evidence as a whole (which includes far more detailed and up to date
sets of figures than those to which he refers). It would have assisted if his
report could have explained whether and to what extent the opinion he expresses
in it about the situation in Kabul is different from that he gave in the
Norwegian LANDINFO report of September 2011. It would also have assisted if his
treatment of likely accommodation problems facing returnees to Kabul had not assumed that for a single man such as the appellant there would not be the
option of sharing a flat or rooms or quarters. Leaving aside the fact that it has been found the appellant has an uncle living in Kabul who has a
livelihood there, we do not understand sharing of accommodation to be an option
unavailable to single men in Kabul or that to expect a single man to share
accommodation would of itself give rise to undue hardship.
The ARC Evidence
180. Third, Ms Huber said
that ARC’s methodology did not differ significantly from that used by the Home
Office COIS Reports, but the latter do not always, as the identified issues in this case illustrate, address relevant issues in a concerted or organised
way, The COIS Report for October 2011, for example, covers some of the relevant
matters, e.g. at 8 “Security Situation”, but not systematically. In this
appeal ARC was able, on the basis of a research request, to focus in a much
more bespoke way on key aspects of the evidence relating to the central issue
of indiscriminate violence both in Afghanistan
as a whole and in specific
provinces as well as in relation to certain matters relevant to issues of
internal relocation. It may be that the same bespoke COI analysis can be
furnished by the COIS Research Inquiry Service, but we understand there are
sometimes resource considerations preventing that.
181. Fourth, the ARC Report demonstrates the value of presentation of salient COI evidence. Partly in response to criticisms for being (unduly) selective and unrepresentative, COIS reports currently sometimes resemble a collage of conflicting sources. It is not always easy to make sense of their overall purport. The ARC Report, although seeking to avoid being (unduly) selective, does endeavour to draw together what sources disclose about trends and patterns in the background evidence. So long as it does that by close adherence to established standards, both legal standards as set out, for example in Article 4 of the Qualification Directive and Article 8 of (2005/85/EC (the Procedures Directive) (see TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 and soft law standards, e.g. the Common EU Guidelines on processing Country of Origin Information (COI), April 2008, we see no drawback to such an enterprise. (Our use above of the adverb “unduly” is a considered one; in our view it is impossible in the “Age of Information” for any COI analysis, certainly on generic country guidance issues, to cover every item of material available via the internet etc.)
“The information included in this section demonstrates that despite the fact that Kabul is considered safer than other provinces, it has become increasingly insecure as demonstrated by the incidence and strength of insurgent attacks carried out in the capital, including in fortified areas” [emphasis added].
What in our view the researcher should have added here was chapter and verse as to the sources which considered Kabul to be safer than other provinces and greater precision as to which provinces (all provinces?).
“The following incidents resulting in civilian deaths and injury detailed in this section are not exhaustive, but rather indicative of the current security situation in Ghazni province”.
Yet of the fifteen incidents then listed, eight refer to deaths of police officers or insurgents [i.e. combatants] without any reference to civilian deaths or injuries. Another incident refers to the killing on 18 June 2011 of four Afghan private security guards protecting supply trucks for NATO-led troops – hardly (if at all) typical civilian casualties.
186. Keeping in mind the
observations we made at paras 37-44 and 153-164 above in particular, we turn
then to the central topic of indiscriminate violence in Afghanistan
and whether
the Article 15(c) threshold is reached in respect of returnees who are ordinary
civilians with no relevant risk characteristics.
Afghanistan
as a whole
187. We have no doubt that
in general terms the level of violence in Afghanistan
is rising. Despite some
indications of a downturn in some relevant indices in certain quarters of 2011
and despite significant differences between the UNAMA and ANSO figures for
civilian casualties, all major studies agree the underlying trend is worsening
or at least not improving significantly. We remind ourselves that we recorded earlier the number of civilian deaths according to UNAMA as having risen from 2,412 in 2009,
2,790 in 2010 to 3,021 in 2011. Civilian injuries rose from 3,556 in 2009,
4,368 in 2010 to 4,507 in 2011. Other indicators, such as “security incidents”, show a broadly similar rise.
188. The respondent’s position, as articulated before us by Mr Blundell and set down in its current OGN and
other sources, is that nevertheless the level of violence for Afghanistan
as a whole does not cross the Article 15(c) threshold. Bearing in mind, however, that
(i) in December 2010 UNHCR, an international organisation with an extensive on
the ground presence in
Afghanistan
, was of the view that even then there were
several provinces where the level of indiscriminate or generalised violence had
already reached the Article 15(c) threshold; (ii) the position taken by courts
in some European countries is similar to that of UNHCR; and (iii) the level of
violence (according to UNAMA figures among others) has risen since then, it is
right that we consider this question with great care.
UNHCR
190. We attach considerable weight to the UNHCR Guidelines, not least because in Afghanistan
UNHCR has staff on the
ground at least in some parts of the country and because the Guidelines are based on a very considerable body of evidence subjected to a rigorous methodology.
We also take note that these Guidelines make sufficiently clear
(notwithstanding the use of the word “may”: see above para 87 and the passage
“Afghan asylum seekers formerly residing in these areas may be in need of
international protection….”) that UNHCR considers the level of generalised
violence in Helmand, Kandahar,
Kunar, and parts of Ghazni and Khost provinces to cross the Article 15(c) threshold: see p3 and n.240. At
paras 155-6 of AMM, in response to a submission from Counsel acting for
UNHCR as an intervener that the Tribunal “should accept the assessment” set out
in the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Somalia (May 2010), with update to June 2011 Guidelines (para 154), the Tribunal stated:
“155. Both the evidence cited in the Guidelines and the legal interpretation of that evidence, particularly as regards Article 15(c), are highly significant to our tasks. At the end of the day, however, it is our job, on the basis of all the evidence and submissions, to reach a view as to whether the evidence, properly interpreted, reaches the particular threshold, whether as regards a well-founded fear of persecution or a fear of indiscriminate violence in the context of Article 15(c). That is what Parliament requires us to do, in the context of re-making decisions on appeals under the Nationality, Immigration and Asylum Act 2002. The fact that UNHCR lawyers, on the basis of the evidence before them, have reached a particular conclusion, whilst extremely helpful, cannot be determinative.
156. The exercise undertaken by the UNHCR lawyers is also significantly different from the proceedings which have generated this determination. The parties have not only respectively sought to place before us evidence which (compatibly with their professional duties) points towards different legal outcomes; they have also probed and tested each other’s evidence, not least that of the experts who gave oral evidence. It is no criticism of the UNHCR Guidelines to observe that the circumstances surrounding their compilation were very different. This is not to trumpet the merits of an adversarial system of adjudication; one can detect the same dialectic at work in the judgment in Sufi & Elmi. It is merely to be aware of the points of difference between an assessment by a non-judicial organisation tasked with pursuing humanitarian objectives and the responsibilities of fact-finding courts and tribunals...”
192. A further feature of
the UNHCR evidence in this case is that it is not confined to that set out in
its Eligibility Guidelines but also includes numerous documents dealing with its involvement in voluntary returns and repatriation programme. As the Tribunal
has observed in other country guidance decisions dealing with countries in
which UNHCR participates in voluntary return and repatriation programmes, it is
not always easy to see how such participation is consistent with a set of Guidelines that identify certain parts of the country concerned as unsafe - unless such programmes
avoid return to those parts. We are not aware that UNHCR’s programmes in Afghanistan
avoid any particular parts of the country. Whilst we must do our best to
reconcile these two different bodies of evidence, we shall not treat the
apparent conflict in UNHCR’s stance as in itself an adverse factor in this
case, as we did not have proper submissions on it.
Decisions by other courts in Europe
194. It is a drawback that
we do not have certified translations or full transcripts of all the decisions cited to us, but it has been helpful nevertheless to have translations of some and
summaries of others. Whilst it seems to us highly desirable that judges in
Europe (who have to apply common legal standards set out in EU law and have to
have regard to ECHR jurisprudence) should look to each other’s decisions as a source of assistance in terms of the application of the relevant law to facts relating
to general conditions in a country such as Afghanistan
, the extent of help such
decisions can provide on issues related to Article 15(c) and its application
must be a function, inter alia, of the extent to which they apply the
legal guidance given in Elgafaji and the extent to which they apply that
guidance on the basis of comprehensive COI and support their findings by clear
reasons. We do not attempt in this decision to try and identify more precisely
what is meant by “comprehensive COI” except to note that such evidence appears to be one of the elements of what Laws LJ in S and Others [2002] EWCA Civ 539 - when delineating what was necessary in order for findings of fact on
general country conditions to serve as country guidance - described as the need for the decision to be “effectively comprehensive”
(para 29). In relation to the decisions of the Swiss Federal Administrative
Court, however, some of which (S.A. principally) do refer to a
significant number of background sources, including UNAMA and ANSO reports, we
would observe that in addition to Switzerland not being an EU Member State, its
courts plainly do not apply the legal criteria set out in the Qualification
Directive. The S.A. case was also addressing the situation 11 months
ago.
(i) We are mindful that the limited supervisory role of the Strasbourg Court means that fact-finding – whether about general country conditions or any other subject – is at the outer margins of that role. Even though its clear jurisprudence establishes that in asylum-related cases it must apply an ex nunc or current assessment of the facts, and even though in the past few years (especially following its decision in Salah Sheekh v Netherlands App.no.1948/04 and NA v UK), it has been prepared in this context to undertake a comprehensive assessment of general country conditions, its readiness to do so appears to depend very much on whether the submissions of the respective parties and/or third-party interveners adduce what they consider to be comprehensive COI; and also on whether the Court identifies a case as a “lead case”. In addition, whether the ECtHR applies its own jurisprudence setting out criteria for evaluating COI is, as always, a question of fact. A further complication is that (unlike the practice followed in our country guidance cases for a number of years now) the ECtHR does not always enumerate in full the background country materials on which it has relied.
(ii) Further, even if the Strasbourg Court has had regard to comprehensive COI, that does not necessarily mean we will follow its findings. As the Tribunal has observed in AMM at para 115:
“…whilst the Strasbourg Court’s guidance as to the general approach to evidence is part of its jurisprudence, to be followed by United Kingdom courts and tribunals to the extent demanded by the House of Lords and Supreme Court authorities, the weighing of the evidence and the conclusions as to the relative weight to be placed on the items of evidence are ultimately matters for the tribunal. Whilst the factual finding the Strasbourg Court has made as a result of applying its own guidance is something to which the domestic tribunal must have regard, the tribunal is not bound to reach the same finding.”
Accordingly, one relevant factor the Tribunal will take into account when deciding what weight to attach to judgments of the ECtHR that set out findings on general country conditions, will be the extent to which the Court has before it comprehensive COI (Country of Origin Information). But even when there is a relevant Strasbourg decision that makes findings based on comprehensive COI, the Tribunal is not bound to reach the same findings.
197. Leaving to one side for the moment the issue of the levels of indiscriminate violence at the provincial level, we
are not persuaded that the level of violence in Afghanistan
taking the country
as a whole is at, or is even close to, that which would cross the Article 15(c)
threshold. There are a number of reasons.
198. First, although
figures for civilian deaths and casualties in the low thousands must always be
an acute concern, they have to be considered in the context of the size of the
overall population which is widely accepted as now being in excess of 30
million. On the 2011 UNAMA figures for civilian deaths of 3,021 and injuries
of 4,507 (which added together totals 7,528) there are less than 0.1 per cent
of the population who are direct victims of violence. On 2011 figures as set
out in the CSIS report of February 2012, the total number of casualties (adding
together hostages (755), wounded (3,625) and dead (2,494) came to 6,874. That
amounts again to less than 0.1 per cent of the population. (We also note that
according to Farrell and Schmitt’s March 2012 study, “in contrast” to the two
previous wars in Afghanistan
, “civilian fatalities since 2006 have been
relatively modest.”).
200. In HM, although finding that neither Iraq as a whole nor any specific region of it was at that time at the Article 15(c) threshold, the Tribunal did indicate: (i) that it did not rule out that the levels of violence in Iraq at the height of the conflict in 2006/7 may have crossed the Article 15(c) threshold (para 255); and (ii) that the situation in Mosul/Ninewah province at the time (2010) may have been at or nearing the Article 15(c) threshold (para 263). (We bear in mind, of course, that in HM (Iraq) [2010] EWCA Civ 1322 HM was found to be wrong in law and so it lacks the status of country guidance, but, as noted earlier, the Court of Appeal made no adverse comment on the above findings).
201. Further perspective on
the Tribunal’s past assessments on Iraq is afforded by the evidence now to hand from the Center for Strategic and International Studies (CSIS) in its February
2012 study on “Afghanistan
: the Failed Metrics of Ten years of War”. Although
Mr Vokes quite rightly urged that we should read this report as reflecting its
authors’ own agenda, he did not seek to cast doubt on its use of existing
figures drawn from various established sources.
202. The comparison made in this study with Iraq, whilst we approach any comparison with caution, strikes us as of
help in providing some perspective since both this country and Afghanistan
have
a roughly similar population and both have been embroiled in conflict in which,
in addition to armed encounters between different internal actors, has featured
armed encounters between various domestic insurgents (aided by foreign
fighters) and international forces led by US military forces. Both conflicts
are also still ongoing. The principal findings of the CSIS study, based on
figures up to the end of 2010/2011, are: (i) that the figures for victims of
the Iraq War in its two peak years – 2006/2007 – are nearly ten times as high
as in
Afghanistan
currently; (ii) that in more recent years, the total number
of attacks in
Afghanistan
, whilst higher in 2011 than in Iraq, is still lower
than comparable levels in Iraq in 2009 and 2010; and (iii) that the type of
violence in Iraq had produced a much higher ratio of wounded/killed (in Iraq in
2009-2010 the rate was two and a half times that of
Afghanistan
in 2009-2011).
CSIS figure 5 shows that in Iraq in 2009-2011 the figures of killed/wounded were 3,654/13,168 (2009), 3,363/11,689 (2010), 2,310/6,848 (2011), as compared to figures
for
Afghanistan
of 2,779/4,192 (2009), 3,205/4,877 (2010) and 2,494/3,625
(2011).
203. Mr Vokes in his and Ms
Rutherford’s written submissions sought to argue that on the basis of Dr
Seddon’s report it was evident that levels of violence in Afghanistan
were now worse than in Somalia. Whilst we cannot see that Dr Seddon’s report says as
much, it is right that we address this contention by reference to the recent
country guidance case of AMM. Whilst finding it difficult to gauge
whether civilian deaths were increasing or decreasing from previous years, the
Tribunal in AMM noted the very high figures for wounded – see e.g. the mention in para 271 of there being, in the nine months January to September
2010, 5,485 weapons-related injuries reported just by three Mogadishu
hospitals. The population of Somalia, of course, is roughly one third that of
Afghanistan
. Further, as already noted, the Tribunal clearly saw
the level of intensity being aggravated by the systematic targeting of
civilians including by mortar shelling.
204. A third reason relates
to the fact that a significant number of acts of violence carried out against
civilians in Afghanistan
as a whole appear to have arisen in the context of
attacks targeting certain types of civilians (essentially persons in some kind
of influential position perceived by the insurgents as supporting the Afghan
government or international forces (see above paras 50, 51, 75)), without such
attacks having routinely caused widespread harm to other civilians unconnected
with such persons.
205. As we go on to
explain, our above finding does not mean that Article 15(c) has no application
to civilians in targeted categories. Were it not for the fact that such persons
would if facing a threat of removal be very likely to be able to establish both
refugee and Article 15(b) eligibility, their being in a targeted category would
be highly relevant to applying Article 15(c)’s “sliding side”. But it does serve to indicate that the figures for acts of violence against ordinary
civilians, grim reading though they make, remain at a relatively modest level. In this context it seems to us that the words of Dr Giustozzi (who is after all one
of the expert witnesses relied on by Mr Vokes in this appeal) stating that the
armed conflict in Afghanistan
so far has “not particularly bitterly targeted
civilians” (see above para 59), are particularly apt.
206. A further factor,
although we note straightaway that we did not have full and precise evidence on the matter, is that the major reports do not appear to regard the violations of international
humanitarian law presently occurring in Afghanistan
as being anything like as
large-scale or systematic as have occurred in the past in Iraq or more recently
in Somalia. Whilst the prevalent use by the insurgents of IEDs is a major and
increasing cause of civilian casualties, by the same token such devices are in general terms small-scale and their increased heavy use is regarded, by ISAF (with some justification we think), as symptomatic of the insurgency’s degraded capacity to inflict large-scale violence. Even if not all the figures support Mr Blundell’s contention that the deaths/wounded ratio in
Afghanistan
is now less than 1:2, the CSIS
report of February 2012 shows that it is certainly less than prevails (even
now) in Iraq.
207. We bear in mind, of course, that the targeted killing of particular types of civilians is not only murderous but also contrary to international humanitarian law and its occurrence degrades the security environment for ordinary civilians not in the targeted categories: the effects of civilian deaths, however caused, on any population may be extreme and long-lasting. Because targeted killing is one of “the varieties of ways in which civilians come to harm” (to borrow from the formulation in the Tribunal case of HM para 82), it does indirectly impact on risk to ordinary civilians. That is why it can never be right to attempt some simple subtraction of targeted violence from the overall sum of indiscriminate violence. Nevertheless, it cannot be said that such targeting killings, without more, directly establish the “more general risk of harm” or that such indiscriminate violence within the meaning of Article 15(c) is the violence that “.. extend[s] to people irrespective of their personal circumstances” contemplated by Elgafaji at paras 33, 34.
“Enhanced risk categories”
208. We have referred to
submissions made by Mr Vokes and Ms Rutherford seeking to persuade us by reference to GS, paras 62 and 74 that even if we were to find that ordinary
civilians are not at Article 15(c) risk anywhere in Afghanistan
, we should
nevertheless identify “enhanced risk” categories of persons who might be at
Article 15(c) risk by virtue of being less able than ordinary civilians to
avoid the on-going violence. As already noted, we prefer to refer to these as
“intermediate categories” as they are clearly meant to identify categories
falling short of outright risk categories ((i)-(xi)) as identified by UNHCR in
its 17 December 2010 Eligibility Guidelines cited at para 86 above. Mr Vokes
and Ms Rutherford gave the examples (see above para 117) of fruit sellers outside public buildings, day labourers on state construction projects who need as a necessity of
life to be employed in this fashion or small farmers or landless labourers who
out of economic necessity have to keep farming in situations of armed warfare
breaking out on their land or the land that they work. (They also added that “the latter category would include businessmen, more senior state officials, war lords,
large landowners”, but we must confess to finding it difficult to see how such
examples come within the “necessity”-based criterion seemingly relied on in
relation to all the other examples.)
“If there are no personal circumstances increasing risk, an especially high level of indiscriminate violence is necessary; if personal circumstances increasing risk are present, a lower level of indiscriminate violence will suffice. These factors that increase risk primarily include those personal circumstances that make the applicant appear more severely affected by general, non-selective violence, for example because he is forced by reason of his profession – e.g. as a physician or journalist – to spend time near the source of danger…”
It also seems to us
that this is consistent with the position set out in the UKBA OGN 3.6.12 (see
above para 90). But we found Mr Vokes’ and Ms Rutherford’s proposed examples
somewhat too hypothetical (and in part somewhat too diverse: see above para
208) and we think it unwise to attempt identification of actual categories
without fuller analysis of actual existent examples in relation to specific
locations. Further, and this was the point mainly relied on by Mr Blundell, in the context of Afghanistan
, there would ordinarily be (save for certain categories of
women) a viable internal relocation alternative for a returnee who appeared to
fall into any such intermediate category. Manifestly the appellant in this case
did not fall within any intermediate risk category.
Relevance of other metrics
210. In our analysis so far
we have placed focus on available figures relating to civilian deaths and injuries and related measurement of violence. Mr Vokes, however, has urged us to
continue the approach taken in GS and in HM and AMM of
considering other relevant “metrics”. Subject to insisting upon such metrics
being treated as “secondary” rather than “primary”, Mr Blundell did not seek to argue that such metrics were not important indicators in our holistic
Article 15(c) assessment. Indeed, the documents produced by the respondent included the World Development Report for 2011 entitled “Conflict, Security and development, Ch.2 Vulnerability to violence” which advocates a similar approach to that of
Professor Farrell. In our view such statistical information and data helps
inform our holistic approach and reminds us of our opening words that in
addition to being war-stricken Afghanistan
has many other problems.
211. One such metric or
indicator is state ineffectiveness. Here it seems to us Mr Vokes is able to
mount a formidable argument for saying that Afghanistan
is a failed state and
that there is widespread evidence of its inability to protect its population in
the way that a stable State can. Nevertheless, this metric must be considered in the context of the existing levels of physical violence and the related threats they
pose to the civilian population. It is principally about the protection a state
is able to afford its citizens in a time of war and emergency; it is not
principally about whether, for example, there is a criminal justice system
ensuring punishment of offenders. Further, even if a somewhat artificial effect
created by the NATO intervention, the heavy involvement of the international
community and more recently the building up of a very sizeable Afghan army and
security force, it is an inescapable fact that by way of direct or indirect
support for security from the international community, there are sources of
immediate physical protection and assistance available to the Afghan
population. Even though the current timetable envisages large-scale withdrawal
of international forces by 2014, it is clear that the ANSF is being expanded and trained up to some level of capability so that, even if the ANSF does significantly less
well post-2014 at providing security, there will not be a security vacuum.
(This appears to be confirmed by the May 1, 2012 strategic agreement reached
between Presidents Obama and Kharzai.)
EDPs and IDPs
213. We take into account
the population displacement in large numbers has been and is still taking place
in Afghanistan
both in terms of persons leaving (EDPs) and persons returning
(returning IDPs) and persons moving internally (IDPs per se). We attach
significant weight to the views expressed by UNHCR in its December 2010
Eligibility Guidelines and their subsequent reiterations of the same. We are
mindful, as well, of the huge challenges facing UNHCR and other bodies in
seeking to address what is one of the world’s largest IDP problems and we
acknowledge straightaway that the UNHCR research and reports are studiously
careful to highlight ongoing shortcomings in current return and reintegration
programmes, e.g. the fact that 40% of returned IDPs appear not to reintegrate.
Equally those reports show that many IDPs do achieve reintegration and that large
numbers of people are making a voluntary choice to return, including to areas
of
Afghanistan
most affected by the on-going armed conflict. By virtue of the
involvement of UNHCR and other major humanitarian agencies, we cannot infer
that such people are kept in the dark as to the general situation in their home
areas/places of relocation.
214. As we noted earlier,
we have not as yet seen any clear explanation of how, if UNHCR’s International
Protection Division considers return to certain provinces of Afghanistan
to be
unsafe due to the levels of generalised violence, other arms of the same
international organisation can be active in facilitating their return. We have
given thought to whether there are features that might distinguish the
UNHCR-supervised returnee from the ordinary returnee sent back by the UK government. On the face of it, it is difficult to see any distinguishing features that
would render the former generally safe and the latter generally unsafe, since
both sets of persons, receive cash grant as well as reintegration assistance.
But in the absence of full submissions on this matter, we confine ourselves
here to the fact that the evidence shows significant numbers of voluntary
returns.
The situation province-by-province
215. To this point the
Tribunal’s view as to the absence of any Article 15(c) level of risk in Afghanistan
as a whole is not one which either party to this appeal has opposed. Mr Vokes
for the appellant has carefully confined his challenge to the issue of whether
the situation in certain provinces (or parts of provinces) in
Afghanistan
now crosses the Article 15(c) threshold. He asks us to find that there are now at least
several provinces in the south, south-east and east of the country that engage
Article 15(c) generally, including in particular Ghazni, which is the
appellant’s home province.
217. Nevertheless, we do
not think that bearing in mind their known populations the current evidence
indicates that there is any province where the level of violence reaches the
Article 15(c) threshold. Thus according to the UNAMA 2011 report, the two
provinces with the highest number of civilian deaths were in Kandahar and Helmand, with 290 civilians killed. The combined total of the south-eastern and eastern
provinces (which Mr Vokes identified as the main hub of recent increases in the
levels of violence) accounted for 446 deaths. In Ghazni province, even taking
into account that it has seen a significant rise in violent incidents, the figure of the numbers of civilians killed are still relatively low (even assuming for
the moment that the majority of the 446 deaths recorded by UNAMA for the five
south-western and eastern provinces occurred in Ghazni). A factor which
appears to be particularly important in relation to Ghazni is that the
background sources consider the proportion of targeted attacks to be very
significant. As already noted, both the 9 September LANDINFO report by Dr
Giustozzi and the October 2011 the report by the Afghanistan
Research and Evaluation
Unit, for example, describe the Taliban as targeting anyone in Ghazni city identified as having a government-related position in a variety of roles – in the police, as
government staff and even as teachers.
220. It is not entirely
clear that the national court decisions that have found the level of
indiscriminate violence in certain provinces of Afghanistan
to cross the Article
15(c) threshold have considered the matter of civilian deaths/casualties by
reference to the relevant population figures, but even assuming that is so,
none of those to which we were referred, except some of the Swiss cases, appear
to have looked at a comprehensive body of sources. In relation to the Swiss
decisions, as noted already, they do not apply Article 15(c) and in any event
their approach to internal relocation is clearly inconsistent with authorities
that are binding on us (Januzi, AH (Sudan). A further consideration is, of course, that in any event we have to consider the position as of now, not as it
was previously and must make our decision according to the weight we ascribe to
the evidence before us.
221. Mr Vokes has sought to
argue that, just as we must look at more than the metric or data relating to
“civilian casualties” when considering Afghanistan
as a whole, we must do
likewise in relation to assessment of Article 15(c) risk at a provincial level.
We agree. In this regard he highlighted various features of the evidence relating to Ghazni and Kabul especially those relating to socio-economic conditions.
225. In addition (as
already indicated in relation to Afghanistan
as a whole), whilst the overall
picture is of aid and humanitarian organisations struggling unequally to deal with the manifold problems of the urban poor and IDP population, and whilst we do not seek
to minimise the significant incidence of physical and mental health problems
and food insecurity, there is little evidence of significant numbers of such
persons in Kabul suffering destitution or inability to survive at subsistence
levels. These are cold words for those actually living in these conditions,
but we reiterate our opening observation that our task in this case is a
limited one of assessing country conditions by reference to established legal
criteria, Article 15(c) in particular.
Internal relocation
227. One of the issues we
have to decide in revisiting the application of Article 15(c) in the context of
present-day Afghanistan
concerns internal relocation. Whilst confined to the
Article 15(c) context, it is inevitable that what we say below will have
implications for consideration of this issue in the context of Article 1A(2) of
the Refugee Convention, Article 15(b) of the Qualification Directive and
Article 3 ECHR; but it is not our task here to spell out what they are.
When analysing this issue, it is important
to clarify that the respondent’s position as expressed in submissions before us
must clearly be read in the context of the concession that has been made in recent Home Office OGNs on Afghanistan
, namely 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. (Much
the same position was taken by the ECtHR in the case of N v Sweden on the basis of a close consideration of major background sources.)
Kabul
Ghazni
Internal travel
245. Mr Blundell’s skeleton
argument notes that the appellant has not sought to suggest that any route of
return within Afghanistan
would place him at risk. “Where an appellant in any
given case wishes to rely on risk on a route of return, it is for them to
demonstrate on the evidence before the Tribunal that it would meet the high
threshold required by Article 15(c): HH (Somalia) [2010] EWCA Civ 426 at
paragraph 84. Having not done so, the Secretary of State proceeds on the basis
that it is no part of the appellant’s case that the route of return to his home
area of Ghazni would create an Article 15(c) risk”. We consider this to be an
accurate statement both of the law and of the position as regards the
appellant’s case. Since we did not have full submissions on the issue of safety
of different routes of return in
Afghanistan
, we do not seek to give guidance
on it, although we are bound to say that nothing in the evidence before us
indicates that the main routes of travel from Kabul to other major cities and
towns experience violence at an intensity sufficient to engage Article 15(c)
for the ordinary civilian. The position may be different when it comes to
travel from the main cities and towns to villages: we note in this
regard that Dr Giustozzi in his report at para 25 (see above para 15) said that
“[m]ost indiscriminate violence occurs in the shape of pressure mines, which
are indiscriminate by nature. The risk is mainly on the roads connecting the
provincial and district cities to the villages.” Routes of this kind may be
under the control of the Taliban and/or other insurgents and hence will require
a case-by-case approach. It is true that the FCO, among others, has issued
travel guidance warning against travel to certain parts of
Afghanistan
(including Ghazni) but they have not done so seeking to apply legal criteria.
We make two final observations on the general situation, one concerns the past, the other the future.
Previous country guidance
246. It is necessary for us
to specify the effects of our above assessment for relevant country guidance
pertaining to Afghanistan
. Given the limited scope of our inquiry – into the
applicability of Article 15(c) for ordinary civilians in
Afghanistan
- it is not appropriate for us to review all current CG cases on
Afghanistan
, although our findings plainly have implications for some of the matters covered in
them, in particular our findings on internal relocation. It will suffice to say
first of all that whilst in general terms we have not been persuaded that the time has come to revise the position as regards Article 15(c) as set out in GS,
nevertheless, the need for our guidance to be up-to-date, coupled with the need
to ensure it is applied in the light of post-GS guidance on the law,
leads us to conclude that GS is no longer to be considered as country guidance as to the present relevance of Article 15(c) to
Afghanistan
.
The future situation
248. Whilst we have reached
our assessment of country conditions in Afghanistan
so far as they relate to
Article 15(c) so as to make a forward-looking assessment of risk based on the
present evidence, we cannot overlook the fact that the current overall trend is
one of rising levels of violence now over several years, even if relatively
gradual. Nor can we overlook that although we consider the planned departure of most of the NATO and international troops in 2014 is not reasonably likely to leave
a security vacuum, this departure obviously gives rise to more unknowns about
what is likely to happen than otherwise. Hence it seems to us that whilst the
guidance we give will continue to have validity for the immediate future, we
will need to keep the situation in the country under careful review over the
next few years.
General conclusions
249. Drawing together the assessment given above, our principal conclusions are as follows:
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 126 (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] UKIAT 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.
(b) The Appellant
The First-tier Tribunal materially erred in law in its decision on Article 15(c) and its decision as regards Article 15(c) has been set aside.
The decision we remake is to dismiss the appellant’s appeal on Article 15(c) grounds (It has already been dismissed on asylum and human rights grounds).
Signed Date
Upper Tribunal Judge Storey
APPENDIX A: ERROR OF LAW DECISION
Upper Tribunal
(Immigration and Asylum Chamber)
Re: AK (Appeal Number: AA/08956/2009)
Representation:
For the Appellant: Miss R Akther, Counsel, instructed by Malik & Malik
For the Respondent: Miss F Saunders, Home Office Presenting Officer
ERROR OF LAW DECISION AND FURTHER DIRECTIONS, 19 March 2010
1. The
appellant is a national of Afghanistan
. On 31 July 2009 the respondent made a
decision to refuse leave to enter having refused to grant asylum. In a
determination notified on 28 September 2009 Immigration Judge (IJ) Obhi allowed
his appeal. The respondent’s success in an application for reconsideration
brought the matter before me, who must now decide it as a judge of the
Immigration and Asylum Chamber.
2. Having heard submissions from both sides on 19 March 2009 I have decided that the IJ materially erred in law. There is no challenge to the IJ's principal findings of fact. These involved wholesale rejection of the appellant's claim that he and his family had been targeted by a powerful warlord and had attracted additional wrath in his local area by running away to Kabul with a young woman, Parveen. The only reason the IJ gave for allowing the appeal nevertheless was his belief that in both the appellant's home area (Ghazni) and in Kabul he would be at risk of serious harm in the form of indiscriminate violence, contrary to Article 15(c) of the Refugee Qualification Directive. Having cited the judgment of the European Court of Justice (ECJ) in Elgafaji C-465/07 [2009] 2 CMLR 45 and that of the Court of Appeal in QD (Iraq) [2009] EWCA Civ 620, the IJ concluded:
“30. The
appellant has said that the risk to him arises from the threat posed by Ghulam
Mohammad and Jumma Khan. He has not described a situation of indiscriminate
violence or a fear of being caught up in the general violence in the country.
I note that his uncle lives in Kabul and that he appears to have carried on a
business there even in the face of the conflict which has continued there. It
is clear that there is a high level of indiscriminate violence and the COIR
report for June 2009 describes an increasingly difficult situation in Kabul, with elements of the Taliban and criminal forces joining. Paragraph 8.17 of the
report states that of the four doors leading out of Kabul, four are compromised
by Taliban activity. The report goes on to describe a hostile and threatening
situation for the security forces as well as the general civilians. I note also
that in the case of QD and AD the Court confirmed that AIT was not
necessary to establish whether the risk of serious violence came from, namely
whether it arose out of the armed conflict or criminality and that often it
would be difficult to distinguish. Whereas it is usually argued that it would
be safe to return an individual to Kabul because of the presence of the
international forces, based on the information contained in the COIR I am less
inclined to accept that the appellant would be safe if returned there, even
noting that his uncle has resided there for some time and none of his evidence suggest a fear of the general situation in Afghanistan
. However I note that the COIR
report also suggests that Ghazni is assessed as being insecure. Most of the
areas are described as being insecure. I am therefore satisfied that at the
present time the appellant has shown that there is a real risk that the
appellant's life or person would be threatened as a result of indiscriminate
violence. I am not persuaded that there is an area to which he could relocate
without facing a real risk.”
3. There
are two related reasons why I consider the IJ's reasoning to be legally
erroneous. First he appeared to consider that the Elgafaji test of “a
high level of indiscriminate violence” was met in respect of Kabul simply by
virtue of the June 2009 COIR Report describing the situation there as
“increasingly difficult”, hostile and threatening for civilians and security
forces as well and noting that gates leading out of Kabul were compromised by
Taliban activity. That approach ignored the fact that the Elgafaji test
as analysed in QD (Iraq) requires not just a “high level of individual
violence” but “such a high level ... that substantive grounds exist for
believing that an applicant ... would, solely by being present there, face a
real risk which threatens his life or person”. The IJ's approach also failed
to explain why he considered the COIR report’s analysis demonstrated such a
high level. At the very least he should have examined what this report said
about the available figures for deaths and injuries. Had he done this he
would have had to engage with the fact that the latest figures for civilians
killed in the conflict, around 2,100 during 2008 for the whole of Afghanistan
, scarcely suggested the high level for indiscriminate violence envisaged in Elgafaji
and QD.
4. The
IJ also erred in wholly failing to explain why he was departing from Tribunal
country guidance dealing with Afghanistan
which included several cases reported
since the Qualification Directive came into force on 10 October 2006, including
PM and Others (Kabul – Hizb-I-Islam)
Afghanistan
CG [2007] UKAIT 00089
and MI (Hazara - Ismaili – associate of Nadiri family)
Afghanistan
CG
[2009] UKIAT 00035. Whilst these cases did not deal expressly with Article
15(c), they made clear that they did not consider that the levels of insecurity
and danger in Kabul and
Afghanistan
generally were sufficient to make returns
unsafe for civilians generally. By virtue of AIT Practice Direction 18.2 an IJ
was required to follow Tribunal CG unless there is fresh evidence justifying a
departure. The IJ's attempt at para 30 to treat the coverage given in the COIR
report for June 2009 as justifying an abandonment of existing Tribunal country
guidance was plainly inadequate. He also failed to heed the warning given by
the Tribunal in a number of reported cases, e.g. MK (AB & DM
confirmed) DRC CG [2006] UKAIT 00001 at para 20 to the effect that the wider
the risk category concerned (and here the effect of his reasoning was that no
Afghan asylum seeker could be returned to that country) the greater the need
for the IJ to have regard to a comprehensive body of evidence (as opposed to
one or two items).
5. Although
the more recent Tribunal country guidance case of GS (Article 15(c):
indiscriminate violence) Afghanistan
CG [2009] UKAIT 00044 had not been
published at the time as the IJ determined the appeal of the appellant – and so
it was not an error on his part to fail to follow it – the analysis of the
evidence in this case highlighted the extent of the IJ's failure to address
adequately the issue before him concerning the threshold of indiscriminate
violence. Their conclusion (which also took into account the same COIR report
of June 2009) was that the current conflict “cannot be said to involve a high
level of civilian causalities” (para 117).
6. Both
parties were in agreement with me that were I to set aside the decision of the
IJ for a material error of law the case would need to be adjourned for a further
hearing. The present position is that the Tribunal will now consider whether
this case should go forward as a potential country case intended to examine
whether circumstances since the Tribunal CG case of GS [2009] UKAIT
00084 have changed so that a different view should be taken of Article 15(c) as
applied to Kabul and other parts of Afghanistan
. To that end, the next step
will be to convene a CMR hearing.
UPPER TRIBUNAL JUDGE STOREY, 19 March 2010
APPENDIX B: LIST OF BACKGROUND COUNTRY OF ORIGIN INFORMATION (COI)
DOCUMENTATION CONSIDERED
Item
|
Document |
Date |
1 |
BBC News, “Does deal mark new era in US-Afghan relations?” |
3 May 2012 |
2 |
Theo Farrell and Olivier Schmitt / UN High Commissioner for Refugees, “The Causes, Character and Conduct of Armed Conflict, and the Effects on Civilian Populations, 1990-2010” |
April 2012 |
3 |
Country of Origin Information
Service – Casualty Figures in |
Submitted March 2012 |
4 |
Country of Origin Information
Service – Humanitarian Aid in |
Submitted March 2012 |
5 |
Country responses to UKBA’s request for information concerning recent court cases about Article 15(c) –Belgium, Cyprus, Denmark, Finland, Germany, France, Hungary, Lithuania, Luxembourg, Slovenia, Sweden, Switzerland |
Submitted March 2012 |
6 |
Population Figures in |
Submitted March 2012 |
7 |
UK Border
Agency, “Assistance for Returnees to |
26 March 2012 |
8 |
United Nations Assistance Mission in |
February 2012 |
9 |
UNHCR, “2011 UNHCR country operations profile – |
Undated (accessed 23 February 2012) |
10 |
UK Border
Agency, “Operational Guidance Note: |
20 February 2012 |
11 |
Central Intelligence Agency
(CIA), “World Factbook: |
15 February 2012 |
12 |
Center for Strategic &
International Studies, A. H. Cordesman and A. A. Burke, “ |
9 February 2012 |
13 |
Congressional Research Service
(CRS), “ |
6 February 2012 |
14 |
|
January 2012 |
15 |
Human Rights Watch, “World
Report 2012: |
22 January 2012 |
16 |
BBC News, “ |
12 January 2012 |
17 |
|
2011 |
18 |
The World Bank, “World Development Report 2011: Conflict, Security, and Development. Chapter 2: Vulnerability to Violence” |
2011 |
19 |
United Nations Development Programme, “Human Development Report 2011: Frequently Asked Questions (FAQs) about the Human Development Index (HDI)” |
2011 |
20 |
United Nations Development Programme, “Human Development Report 2011: Human Development Index and its components” |
2011 |
21 |
United Nations Development Programme, “Human Development Report 2011: Human Development Index trends, 1980 – 2011” |
2011 |
22 |
United Nations Development Programme, “Human Development Report 2011: Technical notes” |
2011 |
23 |
United Nations, “Report of the
Secretary-General on the situation in |
13 December 2011 |
24 |
US Department of State, “Background
note: |
28 November 2011 |
25 |
|
October 2011 |
26 |
UK Border
Agency, “Country of Origin Information Report: |
11 October 2011 |
27 |
U.S. Department of State, “Country
Reports on Terrorism 2010: |
August 2011 |
28 |
|
July 2011 |
29 |
United Nations Assistance Mission in |
July 2011 |
30 |
The Long War Journal, “Afghan National Army update: July 2011” |
21 July 2011 |
31 |
Islamic Republic of |
June 2011 |
32 |
United Nations, “Report of the
Secretary-General on the situation in |
23 June 2011 |
33 |
|
21 June 2011 |
34 |
US Department of State,
“Trafficking in Persons Report 2010: |
14 June 2010 |
35 |
Freedom House, “Freedom in the
World 2011 – |
16 May 2011 |
36 |
|
April 2011 |
37 |
The Brookings Institution, “ |
30 April 2011 |
38 |
Internal Displacement Monitoring
Centre (Norwegian Refugee Council), “ |
11 April 2011 |
39 |
Jacob Rothing, Middle East
Institute, “Protracted Displacement in |
5 April 2011 |
40 |
US Department of State,
“Trafficking in Persons Interim Assessment 2011: |
5 April 2011 |
41 |
Centre for Strategic and
International Studies, “ |
7 March 2011 |
42 |
International Council for
Security and Development (ICOS), “ |
February 2011 |
43 |
The World Bank, “ |
25 February 2011 |
44 |
Refugee Documentation Centre of
Ireland, “ |
23 February 2011 |
45 |
House of Lords European Union Committee, “House of Lords European Union Committee 8th Report of Session 2010-2011: The EU’s Afghan Police Mission: Report with Evidence” |
16 February 2011 |
46 |
Human Rights Watch, “ |
13 February 2011 |
47 |
Amnesty International, “Afghan parliament inauguration highlights crisis of accountability” |
27 January 2011 |
48 |
Human Rights Watch, “Annual
Report 2011 – |
24 January 2011 |
49 |
UNHCR, “UNHCR Seeks Common Sense European Approach towards those fleeing violence” |
19 January 2011 |
50 |
The Brookings Institution
(contributors E Ferris, Khalid Koser, Susanne Schmeidl), “Displacement in the
Muslim World, A Focus of Afganistan and Iraq, 2009 & Internally Displaced
persons in Pakistan and |
2010 |
51 |
The Brookings Institution, “Internal Displacement and Refugee Status Determination” |
15 December 2010 |
52 |
Refugee Documentation Centre of
Ireland, “ |
19 November 2010 |
53 |
United
Nations, “Report of the Secretary-General on the situation in |
14 September 2010 |
54 |
Council on Foreign Relations
(CFR), “Backgrounder: |
19 August 2010 |
55 |
|
8 August 2010 |
56 |
United Nations, “Report of the Secretary-General pursuant to paragraph 40 of resolution 1917 (2010)” |
16 June 2010 |
57 |
Amnesty International, “Amnesty
International Report 2010: |
27 May 2010 |
58 |
United Nations, “Report of the
Secretary-General on the situation in |
10 March 2010 |
59 |
United Nations Assistance Mission in |
13 January 2010 |
60 |
|
2009 |
61 |
David T MacLeod, “Leveraging Academia to Improve NGO driven Intelligence” Journal of Conflict Studies Vol.29 |
2009 |
62 |
UK Border
Agency, “Country of Origin Information Report: |
26 June 2009 |
63 |
United Nations, “World
Statistics Pocketbook – |
18 April 2009 |
64 |
|
December 2008 |
APPENDIX C: INDEX OF FULL DOCUMENTS USED IN THE ARC REPORT (as furnished by ARC)
1 |
UN News Service, “Security Council condemns ‘heinous’ attacks on Afghan civilians” |
7 December 2011 |
2 |
Foreign and Commonwealth Office,
“ |
6 December 2011 |
3 |
Central Intelligence Agency (CIA), “World Factbook” |
31 November 2011 |
4 |
“ |
30 November 2011 |
5 |
BBC News, “Afghan president announces second troop transition” |
27 November 2011 |
6 |
Khaama Press, “IED explosion injures at least 3 NATO troops near Kabul” |
23 November 2011 |
7 |
|
22 November 2011 |
8 |
Congressional Research Service,
“ |
22 November 2011 |
9 |
BBC News, “Afghan police killed during Nato night raid” |
19 November 2011 |
10 |
Pajhwok, “Would-be suicide bomber detained in Kabul” |
16 November 2011 |
11 |
Center for Strategic and
International Studies, “The |
15 November 2011 |
12 |
Radio Free Europe / Radio
Liberty, “FACTBOX-Security developments in |
11 November 2011 |
13 |
Integrated Regional Information Networks News (IRIN), “Numbers of returnees down” |
9 November 2011 |
14 |
BBC News, “ |
3 November 2011 |
15
|
|
October 2011 |
16 |
|
October 2011 |
17 |
U.S. Department of Defense,
“Report on Progress Toward Security and Stability in |
October 2011 |
18 |
The Guardian (London), “Taliban car bomb attack kills US troops in Kabul: Deadliest insurgent blast in months leaves 13 dead” |
30 October 2011 |
19 |
Agence France-Presse, “Kabul street children struggle to survive” |
24 October 2011 |
20 |
Human Rights Watch, ““Just Don’t Call It A Militia”: Impunity, Militias and the ‘Afghan Local Police’” |
September 2011 |
21 |
Reuters, “Security developments
in |
27 September 2011 |
22 |
The New York Times, “Gunman Kills C.I.A. Employee At Embassy Annex in Kabul” |
27 September 2011 |
23 |
The Guardian (London) - Final
Edition, “Taliban tight-lipped over killing of former Afghan president: |
22 September 2011 |
24
|
Reuters – AlertNet,
“FACTBOX-Security developments in |
21 September 2011 |
25 |
United Nations, “Report of the
Secretary-General on the situation in |
21 September 2011 |
26 |
Norwegian Country of Origin
Information Centre (LANDINFO), “ |
20 September 2011 |
27 |
Norwegian Country of Origin
Information Centre (LANDINFO), “ |
20 September 2011 |
28 |
Reuters – AlertNet,
“FACTBOX-Security developments in |
16 September 2011 |
29 |
Radio Free Europe / Radio Liberty, “Attack On Kabul Ends After 20 Hours” |
14 September 2011 |
30 |
Norwegian Country of Origin
Information Centre (LANDINFO), “ |
9 September 2011 |
31 |
The Brookings Institution, “ |
6 September 2011 |
32 |
Danish Refugee Council, “Danish
Refugee Council upscale reintegration efforts in |
8 September 2011 |
33 |
US Department of Defense,
“Report on Progress Toward Security and Stability in |
23 November 2010 |
34 |
BBC Monitoring South Asia – Political Supplied by BBC Worldwide Monitoring, “Taleban attack district centre in Afghan east” |
30 August 2010 |
35 |
Institute for War and Peace Reporting, “Troop Pullout Bad for Afghan Economy” |
22 August 2011 |
36 |
Reuters, “FACTBOX-Security
developments in |
20 August 2011 |
37 |
Agence France-Presse, “Suicide blasts target British Council in Kabul” |
19 August 2011 |
38 |
US Department of State, “Country
Report on Terrorism 2010 – |
18 August 2011 |
39 |
Radio Free Europe / Radio Liberty, “Afghan Policeman Killed In Attack On Governor's Office” |
15 August 2011 |
40 |
Daily Outlook |
9 August 2011 |
41 |
Institute for War and Peace
Reporting, “Deadly Mines Still Take Toll in |
28 July 2011 |
42 |
Integrated Regional Information
Networks, “Kabul: |
6 July 2011 |
43 |
International Crisis Group, “The Growing Danger in Kabul” |
29 June 2011 |
44 |
Radio Free Europe / Radio Liberty, “Taliban Attack On Landmark Kabul Hotel Kills 12, Injures 18” |
29 June 2011 |
45 |
Refugees International, “U.S. Congress must halt payments to Afghan local police due to human rights abuses” |
28 June 2011 |
46 |
International Crisis Group, “The
Insurgency in |
27 June 2011 |
47 |
International Crisis Group, “The
Insurgency in |
27 June 2011 |
48 |
BBC News, “Afghan policemen die in attack in Ghazni province” |
22 June 2011 |
49 |
The Fund for Peace, “The Failed States Index 2011” |
20 June 2011 |
50 |
Business Recorder, “Taliban kill nine in Kabul police station attack” |
19 June 2011 |
51 |
Reuters, “FACTBOX-Security
developments in |
18 June 2011 |
52 |
UNESCO, “Arming the Afghan Police with literacy” |
14 June 2011 |
53 |
Centre for Strategic and International Studies, “Can Afghan Forces Be Effective By Transition?” |
13 June 2011 |
54 |
UN High Commissioner for Refugees, “World Bank, Study Reveals Vulnerability of IDPs Living in Afghan Cities and Urges a Comprehensive Approach to Support Durable Solutions” |
1 June 2011 |
55 |
Amnesty International, “Annual
Report 2011: |
May 2011 |
56 |
Associated Press Online, “Afghan police: Kabul market blast kills civilian” |
31 May 2011 |
57 |
The Evening Standard (London), “Restoration work is symbol of a country not yet ready” |
25 May 2011 |
58 |
Al Arabiya, “Taliban suicide bomber kills 6 medical students at Kabul military hospital” |
21 May 2011 |
59 |
The New York Times, “Suicide Bomber Attacks Kabul Military Hospital” |
21 May 2011 |
60 |
Reuters, “FACTBOX-Security
developments in |
14 May 2011 |
61 |
International Crisis Group, “The Afghan National Army: A Force in Fragments” |
12 May 2011 |
62 |
Oxfam, “No Time to Lose: Promoting the Accountability of the Afghan National Security Forces” |
10 May 2011 |
63 |
BBC News, “Fresh violence in |
9 May 2011 |
64 |
Reuters, “FACTBOX-Security
developments in |
1 May 2011 |
65 |
BBC News, “Afghan pilot kills eight US troops at Kabul airport” |
27 April 2011 |
66 |
Reuters, “Security developments
in |
23 April 2011 |
67 |
International Business Times News, “Suicide bombing in Kabul targets defense minister” |
18 April 2011 |
68 |
Reuters, “FACTBOX-Security
developments in |
18 April 2011 |
69 |
Pajhwok Afghan News, “Suicide blast hits army vehicle in Kabul; 7 injured by Khwaja Basir Ahmad” |
10 April 2011 |
70 |
US Department of State, “2010
Country Reports on Human Rights Practices: |
8 April 2011 |
71 |
Pajhwok Afghan News, “4 bombers killed, 3 ISAF soldiers injured in Kabul attack by Khwaja Basir Ahmad” |
2 April 2011 |
72 |
United Nations, “Report of the
Secretary-General on the situation in |
16 March 2011 |
73 |
Internal Displacement Monitoring
Centre, “ |
13 March 2011 |
74 |
United Nations Assistance Mission in |
9 March 2011 |
75 |
Danish Refugee Council, “Reaching out to poor Afghans in urban tent settlements” |
16 February 2011 |
76 |
Agency for Technical Cooperation
and Development, “ |
15 February 2011 |
77 |
Voice of America News, “Taliban Claims Responsibility for Kabul Blast” |
14 February 2011 |
78 |
Associated Press Online, “Bomb explodes in central Kabul; no dead reported” |
8 February 2011 |
79 |
Radio Free Europe / Radio Liberty, “Kabul Housing Shortage Leaves The Middle Class Behind” |
31 January 2011 |
80 |
Institute for War and Peace Reporting (IWPR), “Afghans Complain of Police Harassment” |
28 January 2011 |
81 |
Radio Free Europe / Radio Liberty, “Suicide Attack Kills Eight In Kabul Supermarket” |
28 January 2011 |
82 |
Office of the United Nations
High Commissioner for Human Rights (OHCHR), “Report of the United Nations
High Commissioner for Human Rights on the situation of human rights in
|
19 January 2011 |
83 |
Pajhwok Afghan News English, “Giro residents facing starvation by Mirwais Himmat” |
13 January 2011 |
84 |
Agence France-Presse (AFP), “Four killed, 29 wounded in Kabul suicide attack” |
12 January 2011 |
85 |
Integrated Regional Information
Networks News (IRIN), “ |
10 January 2011 |
86 |
Radio Free Europe / Radio Liberty, “Explosion In Kabul Kills One, Wounds Three Others” |
4 January 2011 |
87 |
BBC News, “ |
19 December 2010 |
88 |
United Nations High Commissioner
for Refugees (UNHCR), “UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from |
17 December 2010 |
89 |
Refugees International (USA), “ |
1 December 2010 |
90 |
Associated Press Online, “9 Afghan guards kidnapped in Kabul province” |
30 November 2010 |
91 |
International Crisis Group, “ |
28 November 2010 |
92 |
The Washington Post, “ |
22 November 2010 |
93 |
Oxfam, “Nowhere to Turn: The
Failure to Protect Civilians in |
19 November 2010 |
94 |
BBC Monitoring South Asia – political supplied by BBC Worldwide Monitoring, “Police numbers in Afghan capital need to double - Kabul police chief” |
18 November 2010 |
95
|
Integrated Regional Information
Networks News (IRIN), “ |
15 November 2010 |
96 |
Associated Press Online, “Afghan officials: Kabul attack kills 1, wounds 2” |
12 November 2011 |
97 |
Integrated Regional Information
Networks News (IRIN), “ |
3 November 2010 |
98 |
United States Institute of Peace, “Dangerous Liaisons with the Afghan Taliban: The Feasibility and Risks of Negotiations” |
October 2010 |
99 |
The Times of Central Asia, “New project to clear mines from Ghazni city begins” |
27 October 2010 |
100 |
Daily Outlook |
15 October 2010 |
101 |
Integrated Regional Information
Networks News (IRIN), “ |
14 October 2010 |
102 |
Pajhwok Afghan News English, “Woman injured in Kabul rocket strike” |
5 October 2010 |
103 |
Integrated Regional Information Networks News (IRIN), “All hopes pinned on Kazakhstan wheat” |
4 October 2010 |
104 |
US State News, “Coalition forces kill Taliban senior commander planning Kabul attacks” |
11 September 2010 |
105 |
New York Times, “Fatal Attack on Guesthouse in Afghan Capital” |
10 August 2010 |
106 |
The Independent (London), “Kabul blast kills three ahead of Afghan state-building conference; As international delegates start to arrive, militants declare their intent” |
19 July 2010 |
107 |
Eurasianet.com, “Corruption
Expanding at Alarming Rate in |
13 July 2010 |
108 |
UN News Centre, “Attack on UN vehicle in Afghan capital leaves one staff member dead” |
29 June 2010 |
109 |
Office of the United Nations
High Commissioner for Human Rights (OHCHR), “Concluding observations of the
Committee on Economic, Social and Cultural Rights: |
7 June 2010 |
110 |
Pajhwok Afghan News English, “Nawa residents face numerous problems” |
3 May 2010 |
112 |
Internal Displacement Monitoring
Centre (Norwegian Refugee Council), “ |
15 April 2010 |
113 |
The International Council on Security and Development, “Operation Moshtarak: Lessons Learned” |
March 2010 |
114 |
BBC Monitoring South Asia – political supplied by BBC Worldwide Monitoring, “Article says corrupt, incompetent Afghan officials must be sacked” |
3 March 2010 |
115 |
Ria Novosti, “Haggling over
goods in |
24 October 2009 |
116 |
OCHA, “ |
18 October 2009 |
117 |
International Committee of the
Red Cross (ICRC), “ |
25 September 2009 |
118 |
International Crisis Group, “ |
31 August 2009 |
119 |
BBC Monitoring South Asia, “Afghan TV debates impact of Helmand operations” |
10 July 2009 |
120 |
Immigration and Refugee Board of
Canada, “ |
23 February 2007 |