NM (Christian Converts) Afghanistan CG  UKAIT 00045
Date of hearing: 5 December 2008
Date Determination notified: 13 November 2009
|Secretary of State for the Home Department||RESPONDENT|
(1) An Afghan claimant who can demonstrate that he has genuinely converted to Christianity from Islam is likely to be able to show that he is at real risk of serious ill-treatment amounting to persecution or a breach of his Article 3 ECHR right on return to Afghanistan.
(2) This decision replaces AR (Christians - risk in Kabul) Afghanistan  UKAIT 00035 only in so far as it deals with Muslims who have converted to Christianity.
"1. The appellant is a national of Afghanistan, who was born on 1 January 1960. He first arrived in the United Kingdom on 7 February 2000 on board an aeroplane which had been hijacked the previous day. His claim for asylum was refused on 26 February 2000, and subsequently dismissed by an adjudicator on 13 September 2000, and by the Tribunal on 13 February 2003. At that stage the appellant was claiming asylum on the basis that he feared reprisals from a group within Afghanistan connected with the Taliban.
2. On 30 June 2005 those representing the appellant wrote to the respondent seeking asylum, and claiming that to return the appellant to Afghanistan would breach his human rights. On 10 March 2006 the respondent decided that the letter would be treated as a fresh claim since it raised new issues. In the letter his solicitors indicated that the appellant had converted to the Christian faith, and in support statements were tendered from Christian friends of the appellant in the United Kingdom.
3. The appellant was interviewed on 1 February 2007, and asked a number of questions about his new faith. Since it is accepted by the respondent for the purposes of this appeal, that the appellant has indeed converted to the Christian faith, I shall not deal with the questions and answers in any detail. He did indicate however in the interview that he had been threatened by two fellow Afghanis. These men were living in the same house as him, and threatened him because he had changed his religion. They were both deported back to Afghanistan. He said that he did not report these men because he was scared of them. He said that he attempted to convert other people to Christianity. He also said that he told other Muslims that he was a Christian, and that this would put him in considerable danger in Afghanistan.
4. His application was refused on 14 March 2007 on the basis that although it was accepted that he was a Christian, there was no objective evidence that he would be executed for apostasy, or that he would be of adverse interest to either the authorities or the wider Afghan public. Consideration was also given to his claim under Article 8, on the basis that he suffered from low back pay [sic pain], but this was also rejected.
5. The appellant appealed against the decision of 13 April 2007, on the basis that if he was returned he would face persecution, and possibly the death penalty."
(i) that a number of fellow Afghan asylum seekers who lived in the appellant's house became aware that the appellant was attending church and Christian meetings;
(ii) that the appellant was threatened by a number of Afghan men, in particular YM and NJK. These men live in the same part of Afghanistan as the appellant and know him well.
(iii) YM and NJK threatened to kill the appellant and force him to stop attending Christian meetings.
(iv) YM and NJK spread rumours concerning the appellant throughout the Afghan community.
(v) The appellant is easily recognisable as he walks with a prominent stoop.
(vi) As a result of the threats the appellant ceased attending the group due to safety fears.
(vii) The appellant resumed attending church bible study meetings and services after May 2004 through the assistance of Dr and Mrs Freeman.
(viii) YM and NJK returned to Afghanistan. Prior to their departure they told the appellant that he would be killed if he returned to Afghanistan because of the appellant's conversion to Christianity.
(ix) The appellant continued to receive threats at his hostel accommodation and on 25 June 2005 fellow residents who are Muslims reacted angrily to Dr and Mrs Freeman's son attempting to collect the appellant to take him to a meeting. The residents identified the car of Dr Freeman, which was parked three streets away from the appellant's hostel.
(x) The appellant has continued to practise Christianity in the United Kingdom. Local Muslims spit at him in the street.
(xi) The appellant has been told by Muslims in his local area that although they cannot harm him in the United Kingdom, he would be killed by "people that they know" in the event of return to Afghanistan.
(xii) The appellant was baptised on 8 October 2005. He regularly attends Hounslow West Evangelical Church.
(xiii) The appellant has no family network in Afghanistan.
(xiv) Contact with the appellant's son ceased after his son was told of his conversion.
(xv) The appellant has no contact with his daughter. As a woman the appellant's daughter could not be expected to protect the appellant in Afghanistan.
"I agree with Counsel that the IJ failed to take account of the material evidence that was before him both in the appellant's reading schedule and in the submissions made by the appellant's Counsel which the IJ recorded at paragraph 11. According to the grounds the IJ was referred to paragraph 19.42 of the Country of Origin Information Reports (COIR) for April 2007 which refers to the UN Secretary General reporting that there had been three similar cases to that of Abdul Rahman in which Afghan citizen [sic] were accused of apostasy by local religious leaders and were forced to leave the country.
I also agree with Counsel that in assessing the risk to the appellant, the IJ focused on the risk to Christians rather than converts. The IJ also failed to consider that because the two men had been deported to Afghanistan, the appellant's conversion is now known in Afghanistan.
We know from paragraph 3.13.7 OGN, which is cited by SIJ Jordan in his order for reconsideration that where the appellant's fear is either at the hands of the state or of societal or non-state persecution, sufficiency of protection should not be considered to be available for apostates in Afghanistan.
Therefore the issues in this case are:
1. Is there objective material to support the appellant's claim that because of his conversion to Christianity he faces a real risk of persecution either from the two men who have been deported to Afghanistan or from society generally; and
2. whether the appellant can relocate within Afghanistan in order to avoid persecution."
Documentary Evidence before the Tribunal
Witness Evidence before the Tribunal
The Report of Dr Antonio Giustozzi
"Although it is not clear whether it would effectively be implemented."
The Oral Testimony of Dr Giustozzi
"134. The risk, according to Dr Giustozzi, would arise after a period following their return. He argues that it is in the nature of Afghanistan society that relationships are based on trust and that for the appellants to obtain work or accommodation they would need to reveal something about themselves to their prospective employer or landlord. He said that would give rise to checks being made into their background. He said 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. Not only would the authorities hear about them, through their sources, but it could be assumed that after a relatively short number of weeks or months they would have re-established themselves and become part of informal networks of family and friends. Dr Giustozzi said that the security forces may well then think that they are worth interrogating, because of knowledge they may pick up from those family or friends."
Submissions on behalf of the Respondent
"2. [M] continues to experience hostility from Muslims who take exception to his Christian faith. During festivals such as Ramadan he has experienced difficulty in visiting our home and has had to walk a long way around to avoid being seen by those attending the mosque, as he was himself was not attending. He is conscious that there are people who want to cause him trouble and so tries to 'keep his head down' wherever possible. He used to be concerned about people looking through the open church door and recognising him, for example, but now he says that Jesus helps him feel strong."
Mr Gulvin submitted that this was exactly what the appellant would do in Afghanistan: he would keep his head down and avoid trouble. It was open to him to live in Kabul because he had lived there for a period of time; he had not heard from his family and does not keep in contact with them and there was no need for him to go back to his home area. Five million people lived in Kabul. The appellant was capable of employment as he had clearly done different jobs in the past. Generally it was recognised that Kabul was a place where internal relocation was possible. It is not disputed that conditions in Kabul would not violate the appellant's Article 3 rights.
Submissions on behalf of the Appellant
Background Material before the Tribunal
"The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam.
Followers of other religions are free to exercise their faith and perform their religious rites within the provisions of law.
Article 3, Chapter 1 states:
"In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam."
"3.13.2 Treatment. Although Article 2 of the 2004 Constitution states that the followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law, the boundaries of the law are open to interpretation. The Constitution makes no specific provision for converts and guarantees of religious freedom generally would appear to be subject to the constitutional catch-all that 'no law can be contrary to the beliefs and provisions of the sacred religion of Islam.'
3.13.3 Conversion from Islam is considered apostasy and is punishable by death under Shari'a. However, the new constitution makes no reference to Shari'a, and Article 7 commits the state to abide by the international treaties and conventions that require protection of this right. The judicial system in Afghanistan is largely comprised of conservative Islamic judges who follow Hanafi or Jafari doctrines recommending execution for converted Muslims, however, there are no recently reported cases of any Afghan being executed by court order for conversion or apostasy. This is possibly because converts will tend to keep a very low profile and small communities of Afghan converts are believed to practice Christianity in secrecy.
3.13.4 In March 2006, Abdul Rahman was charged and tried in Kabul for converting from Islam to Christianity and could have faced the death penalty unless he re-converted. Mr Rahman actually converted sixteen years earlier, but he came to the attention of the authorities when his estranged family denounced him in a custody dispute over his two children. Following increasing pressure from the international community and intervention from President Karzai, however, Abdul Rahman's case was reviewed by the judiciary and he was deemed mentally unfit to stand trial. Abdul Rahman was subsequently freed from prison and the United Nations helped arrange his emigration to Italy where he was granted asylum. In September 2006, the UN Secretary-General reported that following the case of Abdul Rahman there have been three similar cases in which Afghan citizens were accused of apostasy by local religious leaders and were forced to leave the country.
3.13.5 There has been a great deal of speculation about the level of societal discrimination which apostates would face and in 2005 there were some unconfirmed reports that converts to Christianity were threatened and even killed. Immigrants and non-citizens are free to worship in private locations and Christian affiliated international relief organisations generally operate throughout the country without interference. What evidence there is tends to point to proselytising being the greater risk than conversion in itself, however, there was some publicly displayed anger over Abdul Rahman's release from prison in March 2006 and it was reported that around one thousand people protested in the Northern city of Mazar-e-Sharif with calls for him to be tried and executed. Abdul Rahman's release was also criticised by the leader of the lower house of parliament, Yunus Qanuni and Chief Justice Fazl Hadi Shinwar."
"Where the treatment feared is at the hands of the state, the question of sufficiency of protection does not arise. However, even where the claimants fear is of societal or nonstate persecution, given Islamic law on apostasy and the conservative Islamic nature of the Afghan judiciary, apostates may reasonably be unwilling due to the state's position on apostasy to seek the protection of the Afghan authorities. Therefore, in either case, sufficient protection should not be considered to be available for apostates in Afghanistan."
"Extended family and community structures within Afghan society are the predominant means of obtaining protection and economic survival, including access to accommodation. Thus, it is very unlikely that Afghans would be able to lead a relatively normal life without undue hardship upon relocation to an area to which they have no effective links, including in urban areas of the country."
Later in the same report under the heading "Freedom of Religion", the report states:
"The constitution defers to Sharia Law for issues on which the constitution or the penal code are silent (such as conversion and blasphemy). As such, conversion from Islam is considered apostasy, and is, under some interpretations of Sharia Law, punishable by death.
The imprisonment of Abdul Rahman reflects concerns regarding the tensions between sharia and statutory laws, the capacity of the judiciary, the role of clerics in the judiciary and the application of the death penalty. He was imprisoned in March 2006 for converting from Islam to Christianity and threatened with the death sentence. Abdul Rahman was later released on findings and mental instability and granted asylum in Italy. Conservative religious clerics organised a demonstration of over 700 protestors in Mazar-e-Sharif calling for Rahman's death and denouncing international involvement in the case.
According to the report of the UN Secretary General, following the highly publicised case of Abdul Rahman, there have been three similar cases of harassment of Afghan Christians. In two of the cases, Afghan families in which some of the members had converted to Christianity reported being harassed by their community and eventually decided to leave the country. In a third case, a Christian convert was jailed on unrelated allegations of homicide. While in jail, another inmate who came to know of his religious belief reportedly killed him.
Although not strictly forbidden by the constitution or other laws, proselytism is viewed by the authorities and society in general as contrary to tenets of Islam. As such, it is practised discreetly. In August 2006, 1,000 members of a South Korean Christian aid group were deported from Afghanistan after Islamic clerics accused them of trying to convert Muslims to Christianity."
"As explained in the section on freedom of religion in this paper, the constitution of Afghanistan is silent on the issues of conversion and while calling for the respective human rights and fundamental freedoms, defers to Sharia Law for matters not explicitly dealt with by the constitution. Under Sharia Law, conversion is punishable by death. As such, the risk of persecution continues to exist for Afghans suspected or accused of having converted to Christianity or other faiths."
"The absence of a guarantee of the individual right to religious freedom and the inclusion of a judicial system instructed to enforce Islamic principles and Islamic law mean that the new constitution does not protect individual Afghan citizens who dissent from state-imposed orthodoxy against unjust accusations or religious 'crimes' such as apostasy or blasphemy."
The report then goes on to quote the examples, which the Tribunal has already detailed above of the cases of Kambakhsh and Abdul Rahman.
"In May 2007, the General Directorate of Fatwas and Accounts under the Supreme Court issued a ruling on the status of the Bahá'í religion and declared it distinct from Islam and a form of blasphemy. The ruling also noted that Bahá'ís would therefore be treated similarly to Christians and Jews. According to the State Department, while the ruling is not expected to affect the expatriate Bahá'ís in Afghanistan, it may create problems for the country's tiny Bahá'í community, primarily in issues involving marriage. Many Afghan Bahá'ís are married to Afghan Muslims, and the ruling could invalidate those marriages. Converts to the Bahá'í religion would face the same consequences as other converts from Islam."
Later in the report it details the concerns the Commission has raised about the deteriorating conditions for freedom of religion or belief and other human rights in Afghanistan, which the Tribunal noted.
"19.26 The Foreign and Commonwealth Office (FCO) noted in a letter dated 17 March 2008 that practising Christianity in Afghanistan is considered extremely dangerous and is not discussed openly. However, in Kabul there may be small pockets of Afghan Christians who risk worshiping together in secret places.
19.27 The FCO further noted that Christianity is still not accepted. Christians are regularly discriminated against and face verbal and physical abuse from the authorities, former friends and also family members. Authorities do not generally investigate allegations of harassment or ill-treatment or bring those responsible to justice."
"On 22 March 2006, Radio Free Europe/Radio Liberty (RFE/RL) reported that:
'The constitution also provides little legal guidance about how other faiths can live or operate in this Islamic republic. While followers of other religions enjoy the right to freely exercise 'their faith and perform their religious rites within the limits and the provisions of law,' neither the constitution nor the country's law set those limits. For example, there is no law that makes it clear whether a church can operate in the country. The unstated understanding seems to be that churches can operate inside diplomatic missions or in military bases but not publicly.'"
"On 11 September 2006, the UN Secretary-General reported that following the case of Abdul Rahman in March 2006:
'There have since been three similar cases in which Afghan citizens were accused of apostasy by local religious leaders and were forced to leave the country. Those cases highlight the obstacles to the enjoyment of freedom of conscience and religion that exist in Afghanistan and the necessity of the Government to take proactive measures to protect those rights. In that regard, the proposal to reinstate the Department for the Promotion of Virtue and Prevention of Vice within the Ministry of Hajj and Religious Affairs is a development that will need to be closely monitored.'"
"Afghans suspected or accused of having converted from Islam to Christianity or other faiths risk persecution. The risk emanates from family and/or tribe members as well as the broader community. Severe punishment within the legal system is also possible for those who do not recant their conversion."
"Due to societal pressure, most local Christians hid their religion from others."
At Section 2 entitled "Status of Religious Freedom" the Report mentions that although there are no laws forbidding proselytism it is viewed by many authorities and most of society in Afghanistan as contrary to the beliefs of Islam. The Report states that there were unconfirmed reports of harassment of Christians thought to be involved in proselytism. Under the section headed "Restrictions on Religious Freedom" the Report states:
"As discussed above, under Islamic law, conversion from Islam is punishable by death. In recent years this sentence was not carried out.
Immigrants and non-citizens were free to practise their own religions. In Kabul 200 to 300 expatriates met regularly at Christian worship services held in private locations due to the existence of only one Christian church in the country. This church, located within the Diplomatic Enclave, was not open to local nationals. Buddhist foreigners were free to practise in temples established for the Buddhist immigrant community.
There are an unknown number of foreign missionaries in the country who work discreetly to avoid harassment. There were no overt foreign missionaries or other non-Islamic religiously orientated organisations in the country. Proselytism was practised discreetly, since it is viewed as contrary to the teachings of Islam. During the period covered by this report, there were a few reported incidents involving individuals attempting to proselytise."
Later under the same section the Report deals with the Sikh community's schools and states that there are no Christian or Jewish schools.
"It is not difficult to track people down in Afghanistan, although it might take time. Neighbours and landlords will check people's backgrounds, because everyone thinks in terms of security, and so they would want to check a newcomer's background in their home area. Further, messages are sent across the country via chains of communications based on personal contacts, and it would be natural to investigate where someone was from in order to see what role they could play in such a network. The postal service is unreliable and only delivers to the district centres, not to the villages, so that travellers are often used to deliver messages and goods to relatives and friends."
The Tribunal in PM accepted much of Dr Giustozzi's opinion as to the operation of this type of community network within Afghanistan. At paragraph 109 of the Tribunal's decision in RQ it concluded, in relation to internal flight, and for this purpose it is only necessary to quote the following from paragraph 109:
"The country background evidence did not as yet suggest that domestic protection in Kabul is sufficient to meet the Horvath standard where an individualised risk exists; the Afghan authorities did not have the resources to protect individuals, and ISAF's remit is generalised and not individual protection."
General Findings on the Expert Evidence and Background Material
The Position for Apostates in Afghanistan
Application of these Findings to the Appellant's Case
Senior Immigration Judge Nichols
|1.||US Commission on International Religious Freedom, "Anti-Conversion" Laws and Religious Freedom in South Asia and the Middle East: the case of Abdul Rahman: (Testimony by Felice D. Gaer, Vice Chari, USCIRF)||07/04/06|
|3.||Radio Free Europe/Liberty||22/03/06|
|5.||From the Telegraph article "Afghan Court Resists Karzai's Overture to Spare Christian's Life"||26/03/06|
|6.||UKBIA Operational Guidance Note Afghanistan||20/04/07|
|7.||UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum Seekers||December 2007|
|8.||Extracts from Country of Origin Information Report Afghanistan||April 2008|
|9.||US Commission Religious Freedom – Extract from Annual Report||May 2008|
|13.||UKBIA Country of Origin Information Report Afghanistan||29/08/08|
|14.||US Department of State "International Religious Freedom Report 2008: Afghanistan"||19/09/08|
|15.||BBC News Internet item "Afghan Man Spared Death Sentence"||28/11/08|
|16.||BBC News Internet item "Charity Shuts Office After Murder"||28/11/08|
|17.||Translation of the Constitution of Afghanistan|