08360 No 32 v The Secretary of State for the Home Department [2002] UKIAT 08360 (29 April 2003)

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Cite as: [2002] UKIAT 08360, [2002] UKIAT 8360

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No 32 v The Secretary of State for the Home Department [2002] UKIAT 08360

HX52484-2000

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 04/09/2002

Date Determination notified: 29 April 2003

Before

Mr D K Allen - Chairman

Mr M Shrimpton

Mr J B Wilson

Between

No 32	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS

The Appellant is a citizen of Afghanistan who has been granted leave to appeal to the Tribunal against the determination of a panel of Adjudicators, His Honour Judge Dunn QC, Professor D B Casson and Miss K Eshun, in which they dismissed his appeal against the Respondent's decision refusing him asylum.

The hearing before us took place on 17th June 2002 and on 4th September 2002. Subsequent delay in determining and promulgating this appeal is a consequence of the fact that at the end of the hearing on 4th September 2002, permission was given for written submissions to be provided subsequently. It seems that the submissions of Mr Buckley for the Home Office were received on 21st September 2002 and those from Mr Henderson for the Appellant were received on 9th October 2002. Thereafter these submissions were not linked to the file with the subsequent delay which is regretted.

At the hearing of 17th June 2002, we heard argument from Mr Henderson for the Appellant and Mr Buckley for the Respondent (both of whom appeared at the renewed hearing on 4th September 2002) essentially concerning the issue of internal flight. Mr Henderson based his argument in this regard on his interpretation of the decision in Gardi and the fact that at the present time, the Respondent was not returning anyone to Afghanistan. He argued that the Secretary of State was not returning people until conditions allowed and that the Appellant was entitled to rely upon that state of affairs. Having heard argument, we concluded that we were not dealing with the situation where it had to be practically accessible to return the Appellant to Kabul but on the hypothetical possibility as to whether it would be unduly harsh. On this basis, Mr Henderson sought and was granted an adjournment on the basis that he had not concentrated his argument on that issue but had been concentrating purely on the question of safety in the home area.

At the renewed hearing on 4th September 2002, Mr Henderson put in a report from Mr Marsden of 3rd September 2002, and Mr Buckley put in the most recent CIPU Report which is Bulletin 3/2002.

Mr Marsden then gave evidence. He was soon to go to Afghanistan. The report still reflected his views and also he had had the opportunity to consider the report of Eckart Schiewek and he agreed with Mr Schiewek's conclusions. The conclusions of Mr Schiewek were that the Appellant would be at risk from Jamiat.

He was asked whether the Appellant could find protection in Kabul and said no not at all. It was very hard to find accommodation there and he had no relatives there to protect him and the rents there were very high and he would have to live in makeshift accommodation in the ruins of southern Kabul with the refugees who had returned from Pakistan. His identity would easily become known as he would be asked by the others where he had lived in Pakistan. Rumours might spread about his identity and he could come to the attention of the Tajik forces who wield power in Kabul. Those forces were reported to be questioning and harassing returning refugees and they might question him and find out he had not been living in Pakistan in the refugee camps and then could have recourse to intelligence files which would reveal that his father was a high officer in the former Soviet government and served with Dhostum and Malek. He would be at high risk as a consequence.

It was put to him that the Home Office would return the Appellant by air to Kabul and he was asked whether this attention would occur on his arrival and he said it could easily do so on questioning at the airport.

He was referred to the fact that Mr Schiewek's evidence indicated that the Appellant would be at risk from Jamiat in Mazar-i-Sharif. He was asked what he would say about the argument that the Appellant could approach either the trans-national government forces or ISAF in Kabul to get protection from Jamiat. Mr Marsden's response was that the government did not have any effective army or police force. Efforts were being made to train a new police force and army by the international community. ISAF's mandate did not extend to security for individuals.

He was asked whether the police force were now able to operate any effective protection on the ground in Kabul and said no. Jamiat militia were the effective police force in Kabul and they were often referred to as the police. He referred us to the mention in the CIPU Report of the deputy head of the police and said that this would be the Jamiat militia. He was asked whether this person was a Jamiat commander of militia and said he was clearly presiding over the militia who were wielding power in Kabul. He was accountable to the military chief.

He was asked whether there was any rule of law in Kabul given that he was saying that the police had no effective operation and was also asked whether there were courts and whether the legal system was effective. He said no. The Taliban had its own court system which was very arbitrary. The judicial system was to be set up and a judicial commission was being established. There was no effective judiciary now in Afghanistan. There was a rudimentary system of sorts and courts might be being convened, but it was unclear whether standards would conform to international standards. There was presently no rule of law in Kabul in the sense of being held to account for your activities or any redress and the individual was vulnerable.

He was asked how moderate Jamiat were. He said they were established in the 1960s and it was an intellectual movement and a radical Islamic party and they had confronted the Soviets and played a major role in that respect. They were not significantly less radical than the Taliban. They were more liberal about women's rights. The climate of opinion in Kabul was very conservative. The religious police force was to be reinstated and was likely to be focused on matters such as women wearing makeup in public. He agreed that there were stories after the Taliban had left about films being made and some other things were going backwards and he said in that sense yes, there was a slow backwards march. There was a very real fear of a backlash. The President, Mr Karzai was a moderate liberal Pashtun, who had been living in exile in Pakistan and the United States. He was relatively powerless with regard to people operating at local levels. He was referred to the reference in the July report at page 5 in the last paragraph to 400,000 refugees and agreed that it was consistent with his sources in Kabul. He was asked about the water situation and the reference in the CIPU Report to this. He said that as a result of drought, the water table had gone down dramatically and this was also the case in Kabul. It was necessary to dig 30 metres deep now. There could be a problem in accessing clean water. There were low prospects for destitute refugees in Kabul as regards water and there were public health problems and problems of overcrowding also.

When cross-examined by Mr Buckley, Mr Marsden was asked whether there was no legal system yet in place according to what he said, and he said that it depended upon your definition. He said that something like the Taliban system was arbitrary and not an established mechanism of hearings and fair procedures or case law. It was probably like the Taliban period, but less radical.

He was asked whether he was funded partly by the Department of International Development and said that he was. He was referred to paragraph 14 of the CIPU Report for July 2002 and it was put to him that it was rather different from what he said. With regard to the reference to there being a judicial and legal system which existed but with limited function, Mr Marsden said that he would say it was highly limited. Where there was de facto control by one group which was very influential, you could not say there was a fair judiciary. The Appellant in such a case would not have a fair hearing. There was no effective judicial system and it was arbitrary, like the Taliban. It was put to him that the report did not say that the system was not effective, but simply referred to it being limited and he was asked whether that did not denote resource problems, rather than being partial. Mr Marsden did not agree with this suggestion. He said that the department would say if it hoped to increase resources. They were saying that it had no real function in a sense.

He was referred to the effect of paragraphs 13 and 14 of the report together and was asked what had had such an effect on levels of crime as set out there since ISAF took over. He referred to the reference that crime rates had decreased across the city by as much as 70% and made the point that this was in one district only perhaps and also it had decreased from a very high level. It was higher than under the Taliban. It was also unclear what the statistical analysis was that was being used as no effective records were kept across the board and it could be that they were relying on Jamiat. He gathered that the level of crime remained high and security was a problem. International staff felt very nervous. There had been a number of security attacks. International staff could not move freely around the city. He was asked whether he was saying that the ISAF figures were unreliable and he said that they were to be taken with caution and crime was still a serious problem. He was asked what had caused the decrease in crime and he said that during the period of the UK mandate, there was a climate of confidence caused by the UK forces and that had eroded rapidly. It was not attributable to any policing function. The hope factor had diminished criminality. He was asked whether he had any figures to show that this reduction in confidence had increased the figures and said that he had seen no figures either way since then.

He was referred to the reference to the Danish Report and said that he had not seen that report. The Danes were seen as a reliable source in their efforts to find out information but they might not be fully aware of all the facts. He was asked whether it was harder for them to get facts than the organisations upon which he relied. He said that as they were people who were not expert interviewers and there for a limited time and it was necessary to be someone who knew the country well and those who informed them were new to Afghanistan. He was asked whether he was assuming they had no access to experts or that he knew what the situation was. He said no, but he could not assume it was reflective of reality on the ground. They might not be able to make an informed judgment. It could be hard to access the grass roots. Good faith by the Danes could be assumed, but there could be reasons to receive their conclusions with some caution. He was asked whether it was true in the context of Afghanistan to take that view with any report from there and he said that there could be greater confidence in reports from some sources than others and he would trust an observer of twenty years rather than a newcomer.

He was referred to the report of the Danish Committee for Aid to Refugees (DACAAR) and was asked whether they were different from fact finders and said yes, DACAAR were reliable. The director had just changed and the leader now (as from a couple of months ago) was new to Afghanistan. The outgoing director was very good.

He was asked about the question of ethnically motivated violence in Kabul, that was referred to at paragraph 14 of the CIPU Report. The director of DACAAR did not consider that there was any ethnically motivated violence in Kabul. Mr Marsden responded that the director could have commented that he was not aware of any. There were high levels of fear among the Pashtuns in Kabul. The Tajik dominance of security forces existed and Pashtuns were targeted in Northern Afghanistan. There was no documentary evidence of particular incidents, but that did not mean there was no violence. The police would usually be the main monitors of violence. There was no international organisation mandated to investigate localised incidents. Amnesty International, Human Rights Watch and the United Nations focused on the higher profile cases.

He was asked whether where there were references to the police this was Jamiat militia. He said yes. They were loyal to General Fahim, the Minister of Defence. The ethnic makeup was specifically Tajik. He was asked what proportion of Uzbeks lived in Kabul and he said it was a tiny minority, not enough to have their own neighbourhood. Elsewhere in Afghanistan, Mazar was the main centre and the outlying villages. He was asked how many Tajik militia operated in Kabul and said there were thousands. It was in a population of perhaps around a million, although this was only a rough figure. It was put to him that it would not be so difficult in the circumstances for the Appellant to maintain himself there without being discovered by the militia. He said that you have to accept that there was a powerful rumour-mill, and this would be this case wherever he was. He would need to pass through customs also and he could be at high risk of harassment by the Tajik authorities. There was a high risk he would come to the Tajik forces attention even if he sought to hide. Around 400,000 refugees had returned to Kabul. It was put to him that the Appellant would be at the back of a pretty long queue if the Tajiks were targeting returning refugees. He said that he could be picked on at random and there would be questions about who lived in the neighbourhood and his identity would be known to others in the neighbourhood and they would know he had not been in Pakistan. There was arbitrary picking on refugees and links with an asylum seeker would become well known. He was asked whether there was a high probability of him being questioned by the police and said yes he thought so. The refugees were seen as a threat to stability and there was a focus by the Tajik forces on returning refugees. He was asked how the Appellant's background would be discovered if he did not reveal it, given the mass of strangers in Kabul. He said that on questioning it would become clear that he had not lived in Pakistan in the refugee camps so there would be immediate interest in his background and police checks and the files of the intelligence services would be opened.

We asked Mr Marsden if there was any evidence in any of the reports of this process and he said that this was from his own sources and his own information that the intelligence services had remained effective. The Appellant's father had a high profile and therefore he was in extreme danger. He was asked in this regard also about the procedures of the police and said this was again from his sources, conversations with people living in fear. People were nervous in speaking on the telephone about political issues and there was an intense level of fear. He would be very concerned if responsible for sending the Appellant back as there was a risk from the Tajik forces and his life would be in danger. His father had a high profile. He was in the highest possible risk category and the UNHCR's views on this were relevant. It would be very hard for him or indeed anyone to hide their identity. There was a high risk he would come to the attention of the authorities given the rumour-mill and customs in that regard.

We put to Mr Marsden that he was saying that the police did not seem to be effective and the judiciary was said to be ineffective and he was asked whether it was the case that the security forces were nevertheless very good and he said yes that was always true in Afghanistan. He was asked whether he was aware from sources of refugees returned to Kabul who were not in a refugee camp in Pakistan and he said he was aware of one. A number had gone back and they knew they returned to a high level of risk. He was asked whether from his sources they speculated about a person returning from the west whether these related to actual instances. He said that he was basing it on a lot of conversations with Afghans there and here and all had made it clear that they felt a high level of fear concerning their identity being known if they were returned or if they came to the attention of the authorities and they were keeping a low profile. It was well-founded in that you heard a lot of people disappearing and a lot of violence and families had to move and there was evidence of the authorities entering houses and a lot of assassinations. He was asked whether Jamiat were as strict as the Taliban and he said they were radical.

He was referred to paragraph 15 of the CIPU Report where it was said in the final sentence that many women on the streets of Kabul were to be seen in dresses, either with head scarves or with their heads uncovered and he was asked whether that was consistent with what he said. He said that many did not mean a majority and some were brave enough and he was told that most covered up and there were few women on the streets. The religious police force had been reinstated and there was a ban on women wearing makeup in public. There were threats from radical organisations about sending girls to school and a lot had decided not to, mainly in Kandahar. It was a very conservative climate. He was asked whether little had changed concerning liberalisation and the position of women and he said that he would say that it was a marginal improvement with the main change being that women could work. He accepted that there had been changes concerning the playing of music. However, recent developments caused concern about that also. There had been a move in a conservative direction. Now was not the time to send people back to Afghanistan. The situation was very fluid and the trend concerning security was negative. He was asked whether the information he was giving about the resurgence of reactionaries came from his contacts or whether it was reported. He said that it was well established in all the documentation and in press reports. It was clear that power was in the hands of those who wielded power at a local level. There was a predominance of conservative elements in the regime. The original minister for women was forced to abandon her position at the Loya Jirga as there were so many threats and complaints and instead she was made head of the Human Rights Commission.

He was referred to paragraph 22 of the CIPU Report which indicated that the water problems were being tackled. He said yes, but there was a caveat in that it did not mean that the problem was solved. The task was well beyond the reach of those seeking to tackle it. It would be a while before there was adequate water for all the population and most would remain dependent on inadequate and potentially contaminated water supplies.

On re-examination, he was asked whether, concerning the Home Office report with regard to ISAF and the fall in crime whether he knew of any organisation with access to reliable crime reporting statistics in Kabul, and replied no. With regard to paragraph 14 of the CIPU Report, he was asked whether he was aware of any organisation on the ground in Kabul who would agree with what was said there and he said no. Most people in Kabul would regard it as being rather fragile and just about all right with a risk of underlying violence. It had been exacerbated by the recent bombing attacks. The report from the deputy chief of police did not surprise him as this man presided over the Tajik forces who would be the main perpetrators. Everything was always said to be fine. On return, the Appellant would speak to the Tajik forces. Given his background and his family's experiences, he would put him pretty well at the top at the range of risk. There was the fact also of his arrest by the UK authorities on the plane which was a very significant factor and again it would cause his family background to be likely to be apparent. There would be an atmosphere that he was guilty even though he had not been prosecuted in the United Kingdom.

He was asked about his resources and the point was made that he was employed by governments and the United Nation and agencies concerning risks on the ground in Afghanistan. He was asked what he was paid to do that was not in the reports. He said this was to maintain day to day awareness of a highly fluid situation and draw on information not in public sources and to analyse the situation. He had been studying Afghanistan and developing contacts there since the start of 1989. Previously he had worked for the Foreign Office. Contacts in Afghanistan are available to anyone theoretically and being in London meant he was in a web of information. It was far harder in Kabul where there were very limited communication systems and he could find out what was going on in Afghanistan as he knew whom to telephone and had a lot of contacts there.

As noted above, we gave the representatives time to put in written submissions. We have copies of those submissions before us and we have of course read them carefully, though we do not propose to reproduce them in any detail but we will refer to them when appropriate in our assessment of this claim.

The Appellant is an Uzbek and a single man. He caught the plane which was subsequently hijacked and came to the United Kingdom when he was returning home from Kabul to Mazar-i-Sharif having been taking his mother to see her mother in Peshawar. He claimed fear on return partly from the Taliban, who had arrested him and held him for five or six days in Mazar-i-Sharif as his hair was too long and his beard was too short, and he also claimed fear because of being an Uzbek and the fact that his father was a policeman who worked as a policeman for Najibullah's Regime and also worked as an undercover agent for General Dhostum. He said that his father fought against the Taliban with General Dhostum's army when the Taliban first attempted to win control of Mazar-i-Sharif in 1997. Initially the Taliban were chased out of Mazar but they made a successful assault on the city in 1998 at which time many of Dhostum's supporters fled, including the Appellant's father. The Taliban sought revenge for losses they had earlier suffered and detained and killed many people associated with the previous regime and the Appellant's father therefore took them into hiding with him some three hours away from the centre of Mazar. He said that since his father came out of hiding subsequently they had moved to a new home in a different area of Mazar and his father rarely left the house in order to avoid seeing members of the Taliban.

The panel of Adjudicators accepted the Appellant had fought as a general in Najibullah's forces and was subsequently a general in the Uzbek forces up to 1997. The Appellant's story was refined somewhat subsequent to the hearing before the Adjudicators, including the claim that divisions opened up in 1997 in Dhostum's forces between those loyal to Dhostum and those supporting his Senior Commander General Malek. The Appellant said that his father eventually took the Malek line, and set out in some detail his account of what happened, this can be found in his fourth appeal statement. His explanation for not giving details about the splits in the Uzbek forces previously was that they were confusing and not relevant to his claimed fear at the time, i.e. risk from the Taliban. He claimed that subsequent to his arrival in the United Kingdom, he was worried for his family. His family returned to Mazar after the fall of the Taliban in January 2002. Mazar was now under the control of the Jamiat and some other territory in the area was under the control of General Dhostum. His father remained worried and returned to Peshawar whence they had fled subsequent to the Appellant's departure from Afghanistan. He claimed that several days after his family returned to their home, men from Jamiat came to the house and demanded to know where the Appellant's father and eldest sons were. His mother and sister and 13 year old brother who had remained there said they did not know and they were questioned and harassed and the men from Jamiat returned on two subsequent occasions. Subsequently his mother and sister and younger brother left for Pakistan again and his father who it seems had relocated elsewhere in Mazar also went to Pakistan. He claims now to fear Jamiat in Mazar because of his father's role as a general involved in killing many Tajiks from Jamiat. He did not think that if Dhostum were to take over Mazar that they could look to him for protection because his father sided with his rival in the power struggle in his forces.

The Secretary of State appears not to take issue with the Appellant's credibility in this regard. The Appellant also has put in the report to which we referred earlier from Eckart Schiewek who it seems from his curriculum vitae can properly claim to have a degree of expert knowledge of conditions in Afghanistan. He considers that as the Appellant is the son of an ex-communist military, there is a plausible risk from Jamiat elements and generally finds the Appellant's account to be credible. He saw no more than a slight chance that Jamiat would try to shelter any anti-Dhostum ex-communists such as the Appellant. Nor did he consider that the Appellant could safely return to an area held by General Dhostum's forces. In this regard we also note that the written submissions of Mr Buckley on behalf of the Respondent at no point take issue with the claimed fear of the Appellant in Mazar. We do not take Mr Buckley's submissions as conceding this point, but he sets out the basis of the Appellant's claimed fear and goes on to state that irrespective of any well-founded fear of persecution for a Convention reason that he may have in his home area there is said to be an internal flight alternative available in Kabul, and the rest of Mr Buckley's submissions concentrate on that point.

In his submissions, Mr Henderson reminds us of the qualifications of Mr Schiewek including the fact that he was based at Mazar as civil affairs officer to the United Nations special mission to Afghanistan for a substantial period until October 2001 and was subsequently in Afghanistan for three weeks in March to April 2002. Mr Henderson also reminds us of aspects of the documentary evidence that corroborate Mr Schiewek's evidence, and sets out various reports from, for example, the BBC, Human Rights Watch and the general UNHCR position that there may be a risk of violence, harassment or discrimination for, among others, persons associated or perceived to have been associated with the communist regime. He also notes that the Respondent does not take issue with the Appellant's credibility which among other things involves the claim that he and his family remain of interest to the Jamiat militia in Mazar.

We have considered the evidence in this regard carefully. We note Mr Schiewek's view that the Appellant's evidence conforms to objective evidence concerning risk to a person in his situation and consider that his report in particular as somebody who has particular experience of Mazar and has been to Afghanistan recently, i.e. earlier this year, has weight. We consider that the Appellant has made out his claim to face a real risk of persecution in Mazar-i-Sharif, bearing in mind the lower standard applicable in asylum claims.

There remains what appears to have become the central issue in this case, whether the Appellant can relocate safely to Kabul where indeed he would be returned. In this regard we have the evidence of Mr Marsden, both written and oral and as against that, perhaps the main document is the most recent CIPU Report. Mr Marsden contends that the Appellant is at risk from Jamiat in Kabul. He argues that there is no functioning police force and that power on the ground is exercised by the Jamiat militia.

Mr Buckley's submissions do not take issue directly with this point. Mr Buckley essentially places reliance on Bulletin 3 of 2002 dated 11th July 2002 from the Country Information and Policy Unit. There is reference at paragraph 13 to the International Security Assistance Force (ISAF) stating in late April 2002 that the security situation in Kabul has improved significantly since the arrival of the ISAF and it was according to ISAF ongoing statistical analysis, crime rates have decreased across the city by as much as 70%. The point is made however in paragraph 14 that ISAF are not responsible for the protection of individuals or minority groups and have no official authority to investigate complaints or take action. It is said that complaints could be taken to the police but that they have a limited capacity to react in the face of a high level of crime and domination of warlords. It is also said that ISAF are not specifically mandated to assist the Afghan police in Kabul. No specific issue was taken with Mr Marden's contention that such policing as is carried out in Kabul is carried out by forces of Jamiat, and that the deputy chief of police who is quoted in paragraph 14 of the CIPU bulletin is in fact a Jamiat militia figure.

This is clearly an issue of some significance given that the Respondent does not dispute that the Appellant is of clear interest to the Jamiat authorities in his home area. A point is also made by Mr Marsden and not refuted by the Secretary of State that indeed the Appellant would be met at Kabul Airport by Jamiat militia who are in control there.

We note the comments from the Danish Fact Finding Mission that are quoted in the Home Office report, and also the quotes from the director of the Danish Committee for Aid to Refugees. We take both of these reports very seriously. Unlike Mr Marsden they are entities who are actually in place in Kabul and who are therefore in our view particularly well placed to comment on the situation. We find it surprising that Mr Marsden prefers his own sources, relayed to him as they appear to be by a telephone and perhaps through the internet, to those of people working on the ground. For ourselves we prefer the comments of bodies such as these two groups which are actually in Kabul and are commenting on the position as they see it. We must therefore attach significant weight to the view of the Danish Fact Finding Mission in May 2002, that the security situation in Kabul is generally good, although some politically motivated crime was reported, and the view in particular of the director of the Danish Committee for Aid to Refugees that there is not in his view any ethnically motivated violence in Kabul. It would have been helpful if we actually had the text of these reports before us, but that has not been done. We place these reports in the context of the specific evidence given by Mr Marsden concerning the situation for this Appellant. We accept on his evidence that the policing in Kabul is essentially done by Jamiat militia, and that also Jamiat militia have a significant presence at the airport. Given the apparent acceptance by the Respondent that the Appellant faces risk from Jamiat in Mazar-i-Sharif, and in particular our findings above in that regard, we do not consider that it is a particularly significant step to take the view that on the lower standard of proof appropriate to asylum cases, the Appellant faces a real risk on return to Kabul, either at the airport or elsewhere in the city. Though we consider that a good deal of Mr Marsden's evidence is speculative, it is nevertheless evidence of someone who has contacts in Afghanistan and has to be set against the absence except in general terms of evidence on behalf of the Secretary of State concerning the security situation in Kabul.

We conclude therefore that the Appellant has made out his claim that he does face a real risk of persecution not only in Mazar-i-Sharif, but also in Kabul. We therefore find that it would not be possible for him in the alternative to Mazar to relocate in Kabul and, bearing in mind that it is to that city that he would be returned, we find that his claim is made out.

This appeal is allowed.

D K Allen

Vice President

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