ON APPEAL FROM UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUNBY
MRS JUSTICE BARON
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Mr Alan Payne (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
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Lord Justice Pill:
"There has been no challenge to those findings by the respondent ... However the immigration judge also needed to consider whether the appellant would be able to relocate in safety to another part of Afghanistan where he would either not be at risk of Hizb-I-Islami at all or if such risk existed where he would be able to look to the Afghan authorities for a sufficiency of protection."
"the findings on whether it would be unduly harsh for the appellant to relocate to Kabul are insufficiently reasoned."
When that proposal was not accepted on behalf of the appellant it was withdrawn by the Secretary of State.
"This is a worrying case. It is common ground that the appellant fled Afghanistan having refused a request from Hizb-I-Islami that he become a suicide bomber. It is arguable: [and it is the first ground which is in the event material]
(i) that reconsideration ought not to have been ordered and/or
(ii) that there was no proper basis for the Upper Tribunal's findings
(a) that the appellant would be safe in Kabul and
(b) that it would reasonable for the appellant (a man suffering from serious learning difficulties) to relocate there."
"…internal relocation to Kabul is not an option for the Appellant who would have a well-founded fear of persecution for a Convention reason in any part of Afghanistan were he to be returned there.
31. Given my findings that the Appellant is a member of Hizb-I-Islami and I further find that he left Afghanistan as a result of being required to carry out a suicide bombing which he refused to do, I find the Appellant does have a well-founded fear of persecution for a Convention reason, namely being targeted by Hizb-I-Islami for his failure to carry out the order made to him, and his asylum claim succeeds."
Then at paragraph 33:
"…I found that the Appellant's fear of being targeted by Hizb-I-Islami is genuine and objectively supported by the fact that Hizb-I-Islami exists throughout Afghanistan including in the Kabul area, and the fact that the Article 3 claim is founded on the same facts as the asylum claim, I have no difficulty in finding that the Appellant had discharged the burden upon him to the relevant standard and that there would be a breach of Article 3 were he to be returned to Afghanistan."
There had also been a claim for humanitarian protection in addition to the asylum claim.
"It follows that I conclude that it would not be unduly harsh to expect the Appellant to relocate to Kabul. It follows that the original judge made an error of law and a decision dismissing the appeal is substituted. "
The perceived error of law must have been on a perverse finding of fact, though it was not expressed by the tribunal as such. The tribunal held that the critical question was whether there was a real risk in Kabul.
"…a group that is mostly active in eastern Afghanistan and in the provinces surrounding Kabul. The group focuses its military operations on suicide attacks and attacks on the Afghan national security forces and international forces."
"Hizb-I-Islami's strength is low with only 300 to 400 fighters during 2006. Dr Giustozzi considers this is too low, given the spread of the party's activity and regards that as an average for active fighters."
Mr Payne makes the point that Kabul, in the report, refers to the province and not the city.
"…that there is evidence that remnants of Hizb i Islami have re-established a network throughout the
country over the past three years, but that the network includes many individuals who no longer openly claim allegiance to the party. He suggested in his report that it is the existence of these underground networks which explains why the security services are interested in people with the first and second appellant's profiles."
"Also because it is NATO's belief that the insurgents are targeting the capital with an increase in violence. If anything, the search for individuals with a Hizb i Islami background is likely to intensify."
"Now, there is a need to rely on people from the cities and former members of Hizb-I-Islami are valuable. Hizb-I-Islami has always had a strong membership of educated people."
There is then a reference to the Taliban looking for people rooted in the urban areas.
"He thinks that they are trying to improve and identify support. They are looking for safe houses to enable them to increase their activity. ISAF believes they want to infiltrate Kabul City once they have stockpiled enough supplies."
"Hizb i Islami was seen as a serious threat, along with the Taliban, and was blamed for much of the violence in Afghanistan over the past eighteen months. At that stage there were fears that Hizb i Islami may be planning more violence in the run-up to the then forthcoming elections."
That was a report in 2004.
"…that is easier now, with the advent of mobile phones and other communications, and that their pasts would become apparent. It would not thereafter take long for the people and therefore the authorities to hear about them."
"It is not difficult to track people down in Afghanistan although it may take time to."
Mr Jacobs refers to that as illustrating the ability of Hizb, if so minded, to track down the appellant.
"Evidence that the appellant would be personally pursued remains necessary on the principles set out in AF. Where such a real, individual risk is established, the evidence remains that the authorities in Kabul are not capable of individual protection to the Horvath standard and that the ISAF is not tasked with individual protection but rather with generalised peacekeeping within Kabul. It would always be a question of fact whether relocation to a city (in this case Kabul) is reasonable or is unduly harsh, both in relation to the conditions in the city of relocation and the individual history and aptitudes of the particular appellant."
"Where there are individual risk factors it is a question of fact whether the interest in a former soldier is likely to be confined to his home area or be more widely pursued. In particular, elements of 'double cross' in relation to the Taliban or Hizb-i-Islami, if true, may be sufficient to elevate the pursuit of the appellant and the risk to him to such a level that international protection is engaged."
Lord Justice Munby:
"a well-founded fear of ... being targeted by Hizb-I-Islami for his failure to carry out the order made to him"
Mrs Justice Baron:
Order: Appeal allowed