PM and Others (Kabul – Hizb-i-Islami) Afghanistan CG  UKAIT 00089
Date of hearing: 11 April 2007
Date Determination notified: 12 November 2007
|PM and Others
|Secretary of State for the Home Department||RESPONDENT|
Those returned from the United Kingdom will not, without more, be at real risk at the airport or after arrival in Kabul.
Those returned from the United Kingdom are not at real risk, without more, of being suspected by the authorities as insurgents
The past of an individual seeking accommodation or work in Kabul, or elsewhere, may be discovered and mentioned to the authorities. Similarly, the authorities may become aware of someone newly arrived in an area. That may result in a person being detained for questioning but there is no satisfactory evidence such questioning gives rise to a real risk of serious harm.
Subject to an individual's personal circumstances, it is unlikely to be unduly harsh (or unreasonable) to expect them to relocate to Kabul if they have established a real risk of serious harm in (and restricted to) areas outside Kabul.
There is no satisfactory evidence that a person who has been associated in the past with Hizb-i-Islami will always be regarded as such.
There is no longer evidence of real risk to individuals said to have possible knowledge of the whereabouts of Gulbuddin Hekmatyar.
Immigration History, Established Facts, Reasons for Finding that there was an Error of Law in the Immigration Judge's Determinations.
"1. The appellant is a former Hizb-e-Islami fighter and the Adjudicator found that, in effect, he would be in danger of persecution in his home area. However, she went on to consider whether he would be in danger in Kabul, and found that he would not.
2. Permission to appeal was granted in respect of this finding. The appellant particularly relied upon the evidence of Dr Lau reported in RS Afghanistan  UKIAT 00278. The Tribunal reported Dr Lau's written opinion in full, and found him to be an impressive, authoritative, and careful expert witness. However, it did not report the case as a country guidance case and concluded only that on the particular facts of that appellant's case Dr Lau believed that his fear was well-founded.
3. The Adjudicator in the appeal before us said: 'Dr Lau considers relocation to be a problem due to an outsider not fitting in. He appears to be focusing on areas other than Kabul.' It is unclear whether Dr Lau intended to make this distinction or not. It does not appear that either in his written opinion or in his evidence before the Tribunal in RS he adverted to the question of whether Kabul, as the capital of Afghanistan, was a more cosmopolitan place where his other comments about the difficulty of relocation in general might not apply.
4. Another curious aspect of this appeal is the citation of the Danish Fact-Finding Report, which appears to have come to different conclusions in different places. The Adjudicator cites paragraph 6.10.1 (page 275 of the appellant's bundle) as showing that return to Kabul is a possibility, whereas the appellant cites paragraph 5.5 (page 262 of the appellant's bundle) saying that the UNHCR found that an internal flight alternative is not possible in Afghanistan.
5. In truth the Danish Report is somewhat unsatisfactory. It does not provide references for each of its findings, but only a general list of sources at the end, and it is unclear whether any particular finding is based upon one of the listed documents or upon its own investigations. Insofar as the findings are based upon documentary reports, those reports ought to be considered directly when the evidence is being assessed, rather than in the form of a summary in the Danish Report.
6 We did not consider that the Adjudicator had provided sufficiently clear reasons as to why she preferred the interpretation of these sources to the effect that the appellant would be safe in Kabul against that which would appear to show the contrary. We were also unhappy about her reasoning that the appellant would not now be easily recognisable there. This appears to ignore the necessity for anyone in such a society to be able to explain his name, family and history, and to disregard the established case law that a returning asylum seeker cannot be deemed safe on the basis that he can always lie about his identity and background.
7. We had well in mind the comments of the Court of Appeal in R (Iran) & Others v SSHD  EWCA Civ 982 as to complaints of lack of adequate reasoning by Adjudicators. However, having regard to the difficulty of the issues raised we considered that the Adjudicator's determination showed a material error of law in these respects, and that the appeal should be adjourned for reconsideration in respect of the matters raised in the appellant's grounds of appeal to us.
8. We directed that the adjourned hearing should be held at Field House, and the file referred to the convenor of the country group covering Afghanistan for his consideration whether this appeal should be listed for country guidance decision. He will issue further directions for the adjourned hearing in due course.
9. The presenting officer mentioned the possibility of the respondent raising Article 1 F at a reconsideration hearing, having regard to Dr Lau's description of the Hizb-e-Islami as 'without doubt a very dangerous terrorist organisation determined to attack and destroy the current government and to turn Afghanistan into a "pure" Islamic state."
The Second Appellant
"In his interview he refers to his father's prominence. As to his own role, he was 'army officer and soldier, when they needed me I would go, otherwise I was a member'. At the hearing the appellant said that he was a bodyguard for someone and commanded 22 men but in the context of his earlier evidence I consider that, although he may have fought for Hizb-i-Islami, he was not a prominent or senior person in the movement. Any prominence that he may have had would have been on account of his family links."
"A preliminary issue arose as to whether we had jurisdiction to entertain any of the grounds upon which leave had been sought to appeal to the Immigration Appeal Tribunal. In granting leave on 25th January 2005, Mr Freeman alluded only to the possibility of reconsidering the appeal in the light of RS  UKIAT 00278, which was promulgated shortly after the adjudicator's determination in the instant case. Since then, Lord Justice Brooke has explained in R (Iran)  EWCA Civ 982 that an adjudicator cannot commit an error of law by not taking account of a later Tribunal determination. So we clearly cannot use RS to identify an error of law at the first stage of this reconsideration.
On the other hand, we think that the Vice-President, by focusing on the above 'reported' case, may have regarded it as unnecessary to deal with the other grounds of appeal. He certainly has not refused leave on any of them. Given Mr Justice Collins' comments on rule 62(7) of the Procedure Rules 2005 in Wani  EWHC 2815 (Admin), we think we can interpret the grant of leave as impliedly allowing all the grounds to be argued.
Mr Harding, who settled those grounds, contends that, having accepted most of the appellant's account – that his father had been a member of Hesb-e-Islami since 1978, that his cousin had been a commander, that the appellant himself had fought for Hesb
We agree that, in logic, the fact that someone has not been found does not mean that he has not been looked for. We note that the Adjudicator ends his survey of the background material by quoting from the Danish report, at paragraph 22 of his determination, that 'it depends on a person's history whether a former Hezb-e-Islami member runs a risk of being persecuted at present in Afghanistan.' The adjudicator may not have given sufficient weight to this appellant's personal history, including both his own and his family's involvement with Hesb-e-Islami, in finding that the appellant will not be at risk on return.
There is thus a want of sustainable reasoning from the adjudicator's acceptance of the appellant's history of personal and family involvement with Hisb-e-Islami to his rejection of any real risk to the appellant, based largely on the fact that the Northern Alliance did not find the appellant when he went into hiding. This insufficient reasoning is a material error of law, in that it clearly affected the Adjudicator's decision upon the appeal.
The reconsideration will therefore proceed to the 'second stage', so that the current risk to the appellant (if any) can be assessed. Mr Tarlow, for the Secretary of State, agrees that credibility is not an issue, and that the factual matrix should be the history accepted by the Adjudicator. The Tribunal will need to consider up-to-date country background material, as well as the 'reported' cases of RS and WK  UKIAT 00280 ."
"because we were all together, the Mujahedin are now separated (divided) – part in the government and part fighting against the government. I am a Pashtun from Kandahar and live there. Whether you are Pashtu or Taliban or Hizb
i Islami or Al Qaeda, you are the enemy to the government".
He was also asked how people would know that he had been employed as a nurse in a hospital and had treated Hizb
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
The Previous Position on Risk and Those Associated with Hizb
"The war against terrorism in Afghanistan is being fought by numerous agencies and groups. It is fought largely in secret and has so far stayed clear of Afghanistan's legal system. The silence of the objective evidence on the trial of suspected terrorists, of the rate of those arrested as suspected terrorists, indeed the almost complete absence of any information in the public domain on the number of persons arrested because they are accused of being associated with Al Qaeda, the Taliban and Hizb-i-Islami is deceptive. Occasional newspaper reports reveal that arrests and interrogations of suspects take place on a very regular basis. They are carried by Afghan internal security and intelligence agencies, US agencies and even private mercenaries co-operating with members of the Northern Alliance …"
He later said:-
"13. Secondly, I have been asked whether his continuing fear of return to Afghanistan for the reasons given in his statement are well-founded. In my opinion the most serious risk arises from his association with the Hizb
i Islami. The group is without doubt a very dangerous terrorist organisation determined to attack and destroy the current government and to turn Afghanistan into a 'pure' Islamic state. Its leader is believed to be in hiding in Afghanistan and despite concerted efforts he has not been apprehended. His group continues to carry out terrorist attacks.
14. In my opinion it is difficult to discount the appellant's fear as irrational only because his own association with the Hizb
i Islami ceased some time ago. It appears that members of the Northern Alliance think otherwise, as evidenced by his arrest, interrogation and mistreatment [it should be noted that the Adjudicator had not accepted that the appellant had been arrested, interrogated and mistreated]. I am not aware of any public trials of suspected terrorists and thus there is no judicial forum for him to protest his innocence. Given the substantial financial rewards for information leading to the arrest of suspected terrorists promised by the US there is ample motivation to 'test' the knowledge of anyone who is believed to have been close to the Hizb i Islami. In my opinion the appellant's fear in this regard is well-founded."
"The country's societal structure is very tribal in nature and it is most problematic for an outsider to fit into an area where he has no family and relatives."
He then said that he did not consider that the legal system as it was at that stage could offer any chance of effective protection and that ISAF does not protect individuals.
"The main conclusion to be drawn from that decision was that an appellant would be at real risk of persecution and ill-treatment on return to Afghanistan if he had a past association with the Hizb
i Islami, actual or perceived through his family, in the absence of clear evidence before the authorities in Afghanistan that he had disassociated himself with Hizb i Islami. There were substantial rewards for information leading to the arrest of suspected terrorists promised by the United States. There was ample motivation to 'test' the knowledge of anyone who was believed to have been close the Hizb i Islami; the passage of time did not help suspects."
The court, in drawing its conclusions in paragraph 152, noted the submission by Mr Manjit Gill QC that, although RS Afghanistan had not been formally treated as country guidance because the IAT had remitted the case to the Adjudicator, it had informed all future decisions taken within the Immigration Appellate Authority about the risks facing those formerly associated with Hizb
Dr Giustozzi's Evidence
26. … The risk to both Mr PM and Mr SS would arise from the fact that in the current conflict situation the security forces will be looking out for individuals with personal or family links to the insurgent groups (Taliban and Hizb
i Islami). The fact that both of them had relatives arrested by the security forces contributes to strengthen their profiles as potential recruits for the insurgency. In the case of Mr Sadat two factors compound his personal risk. The first one is that being one of the limited number of Tajik activists in the ranks of Hizb i Islami, his value to both Hizb i Islami and the security service is highlighted as the former tries to expand its activities into Tajik territory. Since the security service are still largely staffed by Jamiatis who see Afghan is Tajik in the north east and around Kabul as their own political monopoly, there will be an additional incentive for them to target somebody with Mr Sadat's profile. The second factor of risk derived from the fact that Mr Sadat is from Charasyab, a district which the insurgents started infiltrating very recently and that is one of the gates to Kabul. The security force services must as a consequence redouble their effort to round up suspect individuals from this district.
27. In the case of Mr PM, a factor compounding his situation is that he hails from Nangarhar province, where a local warlord Hazrat Ali has for some time been busy trying to root out Hizb
i Islami in order to prevent the expansion of the insurgency in the area. As despite all there are signs (sic) that the insurgency is slowing spreading anyway, it is unlikely that there will be any let up in such efforts. It is worth noting that Hazrat Ali is well networked in Kabul, through his Jamiati connection."
Dr Giustozzi's Oral Evidence
Evidence-in-Chief – Mr Jacobs for the First and Second Appellants
Evidence-in-chief – Mr Lams – For the Third Appellant
Cross-Examination – Mr Kovats
Re-examination by Mr Jacobs
Re-examination – Mr Lams
Submissions and Background Material
Mr Kovats' for the Respondent
Submissions – Mr Jacobs for the First and Second Appellant
"Notes on Afghanistan, presented on 28 June 2006 at a Country of Origin Information Conference by Dr Antonio Giustozzi, an expert on Afghanistan, stated that Hizb
i Islami, like most Afghan political groups, were known to recruit by way of family connections:
'Current activists will approach former members, perhaps right up to the age of 45 – 50 years, with a view to asking them to collaborate with political or terrorist activities. The security services (NSD) are aware of this policy and try to keep track of their progress. The NSD have stated their ambition is to have an informant in every village, but this remains an ambition due to budget constraints and due to the difficulty of recruiting in areas of the country where the population is hostile.
The security services in Communist times enjoyed significant resources and strong intelligence, but now have to rely more exclusively on more basic methods. Physical beatings are common to try and obtain information, both within the NSD and the police. Occasionally deaths in custody are reported. Those formerly associated with the Hizb are singled out for harassment, either to obtain intelligence or simply to intimidate them into avoiding future associations – the message being sent is that "we are with the government, we can hurt you."'
Mr Jacobs referred particularly to the harassment and risk of persecution demonstrated in that article. He argued that the respondent's own evidence shows that what Dr Giustozzi was saying is not speculative and he had been quoted with approval. Mr Kovats reminded us, at the end of submissions, of the introduction to the COI report which says:-
"The report is compiled wholly from material produced by a wide range of recognised external information sources and does not contain any Home Office opinion or policy."
"Others who fear that they would be victims of violence, in a situation in which there is no law or order, on the basis of a settling of old scores."
Mr Jacobs suggested that a Jamiat-i-Islami warlord, with a grudge, would be particularly interested in seeking out members of Hizb
"The war against terrorism in Afghanistan is being fought by numerous agencies and groups. It is fought largely in secret and has so far stayed clear of Afghanistan's legal system. The silence of the objective evidence on the trial of suspected terrorists, of the rate of those arrested as suspected terrorists, indeed the almost complete absence of any information in the public domain on the number of persons arrested because they are accused of being associated with Al Qaeda, the Taliban and Hezb-i-Islami is deceptive. Occasional newspaper reports reveal that arrests and interrogations of suspects take place on a very regular basis. They are carried by Afghan internal security and intelligence agencies, US agencies and even private mercenaries co
operating with members of the Northern Alliance."
Later, at paragraph 14 of his report, Dr Lau said:-
"In my opinion it is difficult to discount the appellant's fear as irrational only because his own association with the Hezb-i-islami ceased some time ago. It appears that members of the Northern Alliance think otherwise."
Mr Jacobs argued that Dr Giustozzi had said there were no public trials and he said much the same as Dr Lau about regular arrests. He said there is reference to silence about arrests in the background evidence. He said that so far as paragraph 14 is concerned, for 'the Northern Alliance' now read 'the Government'. The Tribunal, in RS Afghanistan, accepted that a history of involvement does not mean no interest. At paragraph 16 of his old report, Dr Lau commented on internal flight and said that society in Afghanistan is tribal in nature and it is problematic for an outsider to fit into an area where he has no family or relatives. He also emphasised that ISAF does not protect individuals. Challenged about the fact that Dr Lau was not in court to say that he stood by his original opinion, Mr Jacobs argued that he had been accepted in 2004 and that Dr Giustozzi updates the report. Mr Jacobs argued that Dr Lau's report was based on a historic knowledge of Hizb
"Afghans associated with the Taliban or other groups opposed to the current transitional process."
He argued that 'other groups' would clearly include Hizb
"Even in a city like Kabul, which is divided into neighbourhoods (Gozars) where people tend to know each other, the risk remains, as news about a person arriving from elsewhere in the country travels fast …
The protection provided by families, extended families and tribes is limited to areas where family or community links exist and without them, a relatively normal life without undue hardship at another location than one's place of origin or residence is unlikely. As documented in studies on urban vulnerability, the household and the extended family remains the basic social network in Afghanistan and there are indications that existing traditional systems of sharing and redistribution function less in the extended urban family. It would therefore, in UNHCR's view, be unreasonable to expect any Afghan to relocate to an area to which he or she has no effective links, including in urban areas of the country."
He argued that if any of the appellants were at risk in their home areas they could not relocate without undue hardship.
"In looking at the nature of the threats inside Afghanistan, I often drew out a diagram of interlocking circles characterised as the 'three walls of Afghanistan'. This diagram outlined not only the activities US and Coalition forces were involved with daily, but also highlighted the interrelated aspects of Afghanistan's challenges. It neatly defines in graphic form many of the sources of instability in Afghanistan as well. The first circle reflects the war against the senior leadership of Al Qaeda, the Taliban and the Hizb
i Islami Gulbuddin (HIG) – the three primary enemy organisations, all affiliated with each other in a marriage of convenience. Senior leadership of these organisations includes Osama Bin Laden, Al Zawarhiri, Mullah Omar and Hekmatyar as well as their most senior lieutenants – the brain power of each terrorist group."
At page 17 of 29, the testimony of an academic from John Hopkins University is recorded as saying that part of the resurgence of the Taliban can be summarised in the word Pakistan. It suggested that, among others, Hekmatyar is based there and that some, including the leader of the Taliban, never leave Pakistan. A little later, at page 25 of 29, there is reference to HIG sanctuaries in Pakistan, and to the areas they operate in within Afghanistan, having increased four-fold between 2005 and 2006.
"The Taliban and anti-Government elements continue to be responsible for threatening, robbing, attacking and killing villagers, Government officials, foreigners and non-governmental organisation workers. Whilst the Government expanded its authority over provincial centres, a few areas remained under the control of regional commanders or the Taliban following insurgent offences. During the year, over 1,400 civilians died as a result of terrorist activities, including suicide attacks, roadside bombs and gun assassinations. There continue to be instances in which security and factional forces committed extra-judicial killings and torture. Human rights problems included: extra-judicial killings; torture; poor prison conditions; official impunity; prolonged pre-trial detention; abuse of authority by regional commanders; restriction on freedoms of press, religion, movement, and association; violence and societal discrimination against women, religious converts, and minorities; trafficking in persons; abuse of worker rights; and child labour."
On the following page there is reference to increased violence involving terrorists and insurgents including HIG, all of whom had killed more civilians than in the previous year.
"The situation in the south, south east and east is unlikely to improve in the near future and the prospect of further deterioration cannot be excluded. While the rest of the country remains relatively secure, Afghans everywhere understand the insurgency poses a grave threat to the political transition nationwide."
Referring to the Commission, the report said at paragraph 81:-
"The programme to disband illegal armed groups addresses one of the clearest and most consistently expressed demands of the Afghan people, the compliance to date has been disappointing."
And at paragraph 82:-
"Corruption and the narcotics industry continue to threaten Afghanistan's transition and must be dealt with as matters of priority by the Government and the international community."
"The Afghan Government continues to lack effective control over Kabul, and efforts to create a new national army and police force and to reform the judicial system throughout the country remain at an embryonic stage."
As to torture this is dealt with from paragraph 6.55. The 2004 Danish Fact-Finding Mission had said that the Lawyers Union of Afghanistan report that people in custody are beaten up until they confess. Human Rights Watch, in September 2004, reported that local military and police forces even in Kabul are involved in arbitrary arrests, kidnapping and extortion, the torture and extra-judicial killings of criminal suspects. Outside Kabul commanders, and their troops, in many areas are implicated in the widespread rape and murder. Amnesty, in 2005, reported evidence emerging that US forces had tortured and ill-treated detainees.
Mr Lams' Submissions of Background Evidence for the third appellant
"a most radical and violent group which has been implicated in numerous attacks on individual members of the interim administration, bomb attacks in Kabul and other cities, attacks on ISAF troops with rockets and more recently by employing a suicide attack and attacks on Coalition troops operating in Afghanistan".
At paragraph 40, Dr Lau said that he had been asked to comment upon whether the third appellant's continued fear of return to Afghanistan was well-founded. He considered that it was. He said:
"I think that his membership in the Hizb
i Islami exposes him to a significant risk from both the Northern Alliance and in fact the current Government."
He said that, unlike the Lau report in RS Afghanistan, in the third appellant's case weight was not put on factors which were subsequently disagreed with by Dr Giustozzi i.e. financial rewards for identifying Hekmatyar's whereabouts. He argued that Dr Giustozzi's report supports the position from 2003. He asked, rhetorically, what had changed since then. He said the situation had deteriorated. He said the factor in 2003 was Hizb
Findings and Conclusions
Summary of general conclusions relating to Kabul
(i) Those returned from the United Kingdom will not, without more, be at real risk at the airport or after arrival in Kabul.
(ii) Those returned from the United Kingdom are not at real risk, without more, of being suspected by the authorities as insurgents.
(iii) The past of an individual seeking accommodation or work in Kabul, or elsewhere, may be discovered and mentioned to the authorities. Similarly, the authorities may become aware of someone newly arrived in an area. That may result in a person being detained for questioning but there is no satisfactory evidence such questioning gives rise to a real risk of serious harm.
(iv) Subject to an individual's personal circumstances, it is unlikely to be unduly harsh (or unreasonable) to expect them to relocate to Kabul if they have established a real risk of serious harm in (and restricted to) areas outside Kabul.
(v) There is no satisfactory evidence that a person who has been associated in the past with Hizb-i-Islami will always be regarded as such.
(vi) There is no longer evidence of real risk to individuals said to have possible knowledge of the whereabouts of Gulbuddin Hekmatyar (RS Afghanistan  UKIAT 00278 should no longer be followed).
The appellants' individual appeals
The first appellant is a Pashtun from Nangarhar. It is said that he would be at risk as a result of Nangarhar being under the control of Hazrat Ali, who is a member of Jamiat
I Islami. He has a powerbase, albeit a narrow one, in Nangarhar and in particular Mazar-i-Sharif. He is also involved in government in Kabul. As a member of Jamiat he would be interested in weeding out Hizb
Senior Immigration Judge Mather
Objective material referred to
Eurasianet Ron Synovitz article 02/09/03
The Christian Science Monitor Ann Tyson article 22/12/2003
Yahoo News Item 25/1/2004
Human Rights Watch Internet article 9/3/2004
Pakistan Tribune Article 20/3/2004
BBC News Report 13/4/2004
Wadhat Newspaper Pehawar List of wanted people 25/7/2004
Human Rights Watch Volume 16 No 3(c)
Amnesty International Report 2005
Human Rights Watch Report January 2006
COI Report Afghanistan April 06
US State Dept Report April 2006
Freedom House Report 6/9/2006
UN Report 11/9/2006
COI Report Afghanistan October 2006
Security Council Report 2006
UNAMA Report 8/1/2007
Human Rights Watch Report January 2007
Press Briefing by Chris Alexander UN Deputy SRSG in Afghanistan January 2007
US Committee on Foreign Affairs Hearing 15/2/2007
Centre for Strategic & International Studies Report February 2007
US State Dept Report March 2007
OHCHR Report March 2007