Upper Tribunal (Immigration and Asylum Chamber)

ACBAR - Agency Co-ordinating Body for Afghan Relief

ALP - Afghan Local Police

ANSO - Afghan NGO Safety Office

ANFS - Afghan National Security Forces

ANA - Afghan National Army

ANP - Afghan National Police

ANBG - Afghanistan’s New Beginnings Group ANBG

AIHRC - Afghanistan Independent Human Rights Commission

AGEs - Anti-Government Elements

AOG - Armed Opposition Groups

AVR - Assisted Voluntary Return

ARC - Asylum Research Consultancy

CPI - Corruption Perception Index

CSIS - Centre for Strategic and International Studies

CRS - Congressional Research Service 

DIAG - Disbandment of Illegal Armed Groups

EDPs - Externally Displaced Persons

ECtHR - European Court of Human Rights

FMR - Forced Migration Review

IEDs - Improvised Explosive Devises

ICG - International Crisis Group

IDMC - Internal Displacement Monitoring Centre

IDPs - Internally Displaced Persons

IOM - International Organisation for Migration IOM

IWPR - The Institute for War and Peace Reporting

ISAF - International Security Assistance Force

DESTIN - London School of Economics and Political Science, Development Studies Institute

NCTC - National Counterterrorism Centre

OHCHR - Office of the High Commissioner for Human Rights

OGN – Operational Guidance Note

PDPA - People's Democratic Party of Afghanistan

SFAC - Swiss Federal Administrative Court

US DoD - US Department of Defence

UNAMA - UN Assistance Mission in Afghanistan

UNDSS - UN Department of Safety and Security

UNDP - UN Development Programme

UNHCR - UN High Commissioner for Human Rights

UNOCHA - UN Office for
the Coordination of Humanitarian Affairs

DETERMINATION AND REASONS

The Appellant’s Case

Procedural History

A.            THE EVIDENCE

The Expert Evidence

Dr Seddon

Dr Giustozzi

“In summary, the risk deriving from indiscriminate violence has increased, even if the overall number of civilian casualties remains relatively modest relative to the size of the population.  Most indiscriminate violence occurs in the shape of pressure mines, which are indiscriminate by nature.  The risk is mainly on the roads connecting the provincial and district cities to the villages.  In Kabul city the risk deriving from indiscriminate violence is mainly limited to occasional terrorist attacks, mostly in the central parts of the city, where most government offices and international targets are located…”.

The ARC Evidence

(a) Asylum and Research Consultancy (ARC) Report, February 2012

“The information included in this section demonstrates that despite the fact that Kabul is considered safer than other provinces, it has become increasingly insecure as demonstrated by the incidence and strength of insurgent attacks carried out in the capital, including in fortified areas.”

(b) Oral evidence of Ms Stephanie Huber

Background Evidence

Parties to the Conflict

(a) Government and pro-government actors

(b) The Insurgents

“The insurgency has expanded far beyond its stronghold in the south east.  Transcending its traditional Pashtun base, the Taliban is bolstering its influence in the central-eastern provinces by installing shadow governments and tapping into vulnerabilities of a central government crippled by corruption and deeply dependent on a corrosive war economy.  Collusion between insurgents and corrupt government officials in Kabul and the nearby provinces has increased, leading to a profusion of criminal networks in the Afghan heartland.”

Causes of the conflict

“Internal armed conflict in Afghanistan has had multiple causes.  Much like the jihad against Soviet forces from 1979-89, the conflict since 2001 is an Islamic insurgency against an infidel invader, currently led by Taliban in alliance with the other two major insurgent groups in the east (the Haqqani network and Hekmatyar’s HIG).  The current conflict is also a civil war.  Some view it as a war between Ghilzai Pashtuns (who form the core of the Taliban) and the victorious Northern Alliance (Durrani Pashtuns, Tajiks, Uzbecks and Hazaras).  However, the Taliban appear to draw support from all Afghan ethnic groups.  At the local level, competition between kinship groups frames a violent competition for resources (land, water, control of routes, and narcotics revenue).  For example, the conflict in Northern Helmand is primarily a struggle between three Pashtun tribal groups, the Alizai, Alikozai, and Ishaqzai.  The situation in central Helmand is less defined along tribal lines due to the complex tapestry of kinship groups, but still much of the insurgency is defined by various groups resisting abuse by the Afghan police who are locally dominated by the Noorzai tribe.  This illustrates the larger point that since Afghan politics is based on patrimonialism, the natural order is for government positions to be used to sustain one kinship group at the expense of others.  This, in turn, further challenges the simple view of the conflict as an Islamic insurgency against an elected government.  Finally, the conflict also has a significant transborder dimension.  The Taliban developed in the 1990s with the support of the Pakistani intelligence service (ISI) in the two unruly provinces that border Afghanistan, Baluchistan and the North-West Frontier.  The Taliban retreated across the border to Pakistan in 2002, and continue to generate forces and direct attacks against the Afghan government and ISAF from these two provinces with the support of the ISI.”

Types and indices of violence: several observations

Levels of violence: (a) Civilian casualties

“Between 600,000 and 2.5 million civilians were killed in the Soviet War.  The Mujahideen Civil War also saw widespread indiscriminate violence against civilians; for example, around 10,000 were killed in the struggle for Kabul in 1993.  In contrast, civilian fatalities since 2006 have been relatively modest.  Starting from under 1,000 in 2006, direct civilian deaths from the conflict have risen by approximately 500 each year to over 2,700 in 2010.  Civilian casualties caused by ISAF attract much media attention and Afghan government criticism, but most civilians are killed by insurgent action (ranging from a low of 55 per cent in 2008 to highs of 72 per cent in 2006 and 75 per cent in 2010).  Afghanistan is the largest producer of refugees in the world, both in absolute numbers and as a proportion of the national population.  Between 2006-2009, around 2 million Afghans were refugees (out of an estimated Afghan population of 30 million).  Many of these are legacy refugees from the 1980s, when punishing attacks on the population caused 5 million to flee into Iran and Pakistan; the Mujahideen Civil War that followed discouraged many from returning.  But it is also indicative of the general lack of security, especially in the Southern and Eastern provinces.  In rural communities, civilians face daily threats of violence from corrupt security forces, insurgents, organised crime, and other armed groups.  Afghan police commonly prey on the civilian communities they are supposed to protect (though this problem has improved since 2010).  In the 1990s, the Taliban were responsible for some massacres, most notably in Herat.  Since 2006, the Taliban have exercised more discipline, in order to win local consent.  However, when they are unable to subvert tribal clans through subtle means, the Taliban will use violence and intimidation.”

Levels of Violence: (b) Targeting of Civilians

“…episodes of targeting of civilians because of their association with one of the parties in the conflict have been rare.  The main exception is represented by government officials, whom the insurgents have been proactively targeting and increasingly so… ethnic and religious minorities have not been targeted.”

When talking about the situation in the cities in government-controlled areas, Dr Giustozzi states:

“In sum, for the Afghan urban dweller, there are two main sources of risk: one, quite small, is to get caught in a terrorist attack, usually taking place in city centres.  The other is to get caught in the repression, which is only likely for those of recent immigration into the city from a village or from the refugee camps in Pakistan.”

Levels of violence: (c) Targeted categories of civilians

“Targeted killings continued at last year’s high rate.  The report notes that those targeted are in general those civilians perceived to support the Afghan government or international forces.  It noted attacks on provincial and district governors, provincial council members, chief of police, members of peace councils, tribal elders and fighters entering the reintegration program, off-duty police, teachers, educational officials as being singled out for targeted killings.  Between January and June 2011, UNAMA documented 190 targeted killings compared to 181 in the same period in 2010.”

Levels of violence (d) Combatant casualties

Comparison with other conflicts

“[i]n comparative terms the on-going Afghan conflict has not been particularly bitterly targeted at civilians. Although civilian casualties have gradually increased year-on-year, they have done so less than proportionally with the increase in the number of violent incidents from 2008 onwards.  This suggests that the parties in the conflict have been trying to restrain themselves and contain civilian casualties.”

The Swiss Federal Court judgment SA v Federal Office for Migration (16 June 2011) 9.7.4 – see below para 102 -  notes that the Heidelburg Institute for International Conflict Research in its “Conflict Barometer 2009” rated 31 conflicts around the world as “extremely violent” and classed seven of these as wars, including Afghanistan’s (no more information is given than that).

Protection

Corruption

Socio-economic conditions/IDPs

Humanitarian Aid

Provincial level

“As the year progressed, the conflict gathered intensity outside those southern provinces where fighting has historically been concentrated and worsened in several provinces in the southeastern and eastern regions. In the last half of 2011, although Kandahar and Helmand remained the provinces with the highest number of civilian deaths with 290 civilians killed; this number is a 39 per cent decrease compared to the same period in 2010.

In contrast, the southeastern provinces of Khost, Paktita and Ghazni and eastern provinces of Kunar and Nangarhar saw a combined total of 446 deaths, a 34 per cent increase compared with the same period in 2010. Between July and December 2011, civilian deaths in the central region jumped from 128 to 230, an 80 per cent increase from the previous year. This rise was prominent in Kabul province, where civilian deaths increased from 23 in the last half of 2010 to 71 in 2011. 61 of the 71 civilian deaths in Kabul during this period occurred as a result of six suicide attacks.

Although targeted killings by AGEs decreased in the southern, central and northeastern regions in 2011, country-wide such killings rose by six per cent, with huge increases in the western region (255 per cent), the southeastern region (14 per cent) and the eastern region (107 per cent). This shift was particularly evident in the second half of the year….”

(a)        Kabul

IDPs in Kabul

(b)        Ghazni

“As in other provinces, the Taliban combines assassination and intimidation to consolidate its hold on Ghazni, particularly targeting local Afghan security forces.”

In October 2011 the Afghanistan Research and Evaluation Unit noted that:

“[c]ertain groups were also identified to be more at risk in the current period.  First, the Taliban target anyone who is perceived to be working for the current government, in any position.  Many respondents in Ghazni city were identified to have government-related positions in a variety of roles – in the police, as government staff and even as teachers… Second, anyone who was identified as supporting or [being] part of the Taliban faced being raided, interrogated or killed by the government and coalition forces.”

In Ghazni unemployment is said to run high and the economic situation is said to be poor (ARC, p.12).

Returns Packages

(1) Assisted Voluntary Return (AVR) packages

For those in the asylum stream they consist of £500 cash on departure with a further £1,000 reintegration assistance (£1,500 for family cases) as cover for flights and onward travel.  For irregular migrants, assistance is limited to flights and onward travel, although for vulnerable persons there is an option for Refugee Action to apply for up to £1,000 reintegration assistance.  Until August 2012 the provider in Afghanistan is the International Organisation for Migration (IOM). It is said to provide a meet and greet service at the airport and to deliver reintegration assistance.  The latter consists of non-cash payments for certain activities, goods and services in Afghanistan that help build a new life.  Reintegration options are co-ordinated at IOM Kabul’s main office.  Post-arrival, IOM assists with onward transportation and/or temporary accommodation if required.

(2) Reintegration Services for enforced returnees

This service, which is part of the UK/Afghanistan/UNHCR Tripartite Returns Memorandum of Understanding, currently consists, inter alia, in reception at Kabul Airport by IOM staff and an IOM doctor, onward transportation to the returnee’s final destination, temporary accommodation with full board for up to fourteen days at the Jangalak Reception Centre.  The reintegration component is said to consist, inter alia, in assistance in vocational and educational training, in kind, support towards the development of a small business and employment/job referrals for those interested in direct employment.

UNHCR Position

“UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include [NB. For convenience we start each subcategory on a separate line:]

(i)   individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the International Security Assistance Force (ISAF);

(ii) humanitarian workers and human rights activists;

(iii)           journalists and other media professionals;

(iv)           civilians suspected of supporting armed anti-Government groups;

(v) members of minority religious groups and persons perceived as contravening Shari’a law;

(vi)           women with specific profiles;

(vii)           children with specific profiles;

(viii)         victims of trafficking;

(ix)             lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals;

(x)  members of (minority) ethnic groups; and

(xi)             persons at risk of becoming victims of blood feuds.

“In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces. Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.” (Emphasis added).

In relation to internal relocation the Guidelines state:

“UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary.”

“…it was UNHCR’s view at the time of the research in 2010 that there was a worsening security situation in certain parts of the country – in particular Helmand, Kandahar, Kunor and parts of Ghazni and Khost province – with high levels of violence and human rights violations linked to the conflict.  Moreover, other provinces including Uruzgon, Zabul, Paktita, Nangahar, Badghis, Paktya, Wardak and Kunduz were also experiencing significant although fluctuating levels of violence.  The violence continued to cause significant population displacement and high numbers of civilian casualties, in particular due to suicide attacks and the use of improvised explosive devises.  UNAMA documented 3,268 civilian casualties during the first six months of 2010 alone.”

UKBA Operational Guidance Note (OGN) v9, 20 February 2012

“2.3.7 State protection outside of Kabul will only be accessible in exceptional cases.  In Kabul the authorities, including the ISAF forces, are in general willing to offer protection to citizens.  However, case owners must bear in mind that for the reasons above, their ability to provide effective protection is limited.  It is important that case owners refer to the most up to date country information to ascertain whether in the circumstances prevailing at the time the decision is made, effective protection is available in Kabul for an individual applicant, taking full account of their personal circumstances.

2.3.8 Effective protection is not available, even in Kabul, for single women or female heads of household without a male support network.”

“2.4.5 The traditional extended family and community structures of Afghan society continue to constitute the main protection and coping mechanism, particularly in rural areas where infrastructure is not as developed.  Afghans rely on these structures and links for their safety and economic survival, including access to accommodation and an adequate level of subsistence.  In certain circumstances, relocation to an area with a predominantly different ethnic/religious make-up may also not be possible due to latent or overt tensions between ethnic/religious groups.

2.4.6 In practice, all returns are currently to Kabul.  Careful consideration must be given to any other place of proposed internal relocation and how it will be accessed, taking account of the latest security, human rights and humanitarian conditions in the prospective area of relocation at the time of the decision, including the availability of traditional support mechanisms, such as relatives and friends able to host the displaced individuals; the availability of basic infrastructure and access to essential services, such as sanitation, health care and education; and their ability to sustain themselves, including livelihood opportunities.  Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control.

2.4.7 Unescorted internal travel for single women and female heads of household who do not have a male support network can be extremely difficult.  Discrimination and harassment are common, as would be establishing themselves in an area where they did not have such a support network.  Sufficient protection is not available to them, even in Kabul, and it would therefore generally be unduly harsh to expect single women and female heads of household who have a well-founded fear of persecution in one part of Afghanistan, and who do not have a male support network, to relocate internally.”

Tribunal Country Guidance and related domestic case Law

“In assessing the evidence, the one thing which struck us particularly was Professor Farrell’s assertion that the number of civilian fatalities directly caused by both sides to the conflict in Afghanistan (including those assassinated by the Taliban/Al Qaeda) was low in comparison with conflicts of a similar size elsewhere.  This emerges in particular from the questions put to Professor Farrell regarding page 17 of his report.  Whilst it is apparent that any assessment of risk to civilians needs to cover not only those casualties, but also those who are injured as a result of intimidation by insurgents (which the table on that page does not cover and as to which no reliable data was presented), Professor Farrell was nevertheless clear that the current conflict in Afghanistan cannot be said to involve a high level of civilian casualties (albeit that he urged us to take account of what he considered were the conflict’s indirect effects).  We conclude that the number of direct victims of indiscriminate violence, arising as a result of the armed conflict, does not demonstrate that the appellant, upon whom the burden of proof lies, has established that there is such a high level of indiscriminate violence that there are substantial grounds to establish that he would, solely by being present in that country, face a real risk which threatens his life or person.  We reach this view bearing in mind what the Court of Justice had to say.  The appellant has not shown that incidents of indiscriminate violence are happening on so wide a scale, and/or in such a way, as to pose a serious threat of real harm.  So far as indirect effects of violence are concerned, we have already explained why we do not consider that these can be said to fall within the scope of Article 15(c).”

“9.8  In the present case, having regard inter alia, to the government’s submission… and the UNHCR Guidelines, it appears that an internal relocation alternative is available to the applicant in Afghanistan…”.

(iii) Other national decisions

B.             LEGAL FRAMEWORK

“Article 9

Acts of persecution

1. Acts of persecution within the meaning of Article 1A of the Geneva Convention must:

(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).

2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;

(c) prosecution or punishment, which is disproportionate or discriminatory;

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);

(f) acts of a gender-specific or child-specific nature.

3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.

Article 15

Serious harm

Serious harm consists of:

(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

Article 8

Internal protection

1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.

2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member states shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.

3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.”

These provisions have been implemented in UK law by the Refugee or Person in Need of International Protection Regulations 2006 and certain provisions of the Statement of Changes in the Immigration Rules (HC395) (paras 334-342 in particular), but it is convenient to refer to provisions of the Qualification Directive as (except where our national provisions are more generous) these are the common point of reference for judges in the EU Member States.

In relation to Article 15(c), the Tribunal in AMM at para 328 (observing that in overturning the Tribunal country guidance in HM case, the Court of Appeal in HM (Iraq) had expressed no criticism of what was said about the applicable law) endorsed the following summary of the legal principles as set out in HM at para 67 as follows:

“In paragraph 21 of my opinion in Januzi I summarised the correct approach to the problem of internal relocation in terms with which all my noble and learned friends agreed:

“As the UNHCR put it in their very helpful intervention in this case:

‘…the correct approach when considering the reasonableness of IRA [internal relocation alternative] is to assess all the circumstances of the individual’s case holistically and with specific reference to the individual’s personal circumstances (including past persecution or fear thereof, psychological and health condition, family and social situation, and survival capacities).  This assessment is to be made in the context of the conditions in the place of relocation (including basic human rights, security conditions, socio-economic conditions, accommodation, access to health care facilities), in order to determine the impact on that individual of settling in the proposed place of relocation and whether the individual could live a relatively normal life without undue hardship’.

I do not understand there to be any difference between this approach and that commended by Lord Bingham in paragraph 5 of his opinion.  Very little, apart from the conditions in the country to which the claimant has fled, is ruled out.”

At paras 21-22 she added:

“21. We are also all agreed that the test for internal relocation under the Refugee Convention is not to be equated either with a ‘well-founded fear of persecution’ under the Convention or with a ‘real risk of ill-treatment’ contrary to article 3 of the European Convention on Human Rights.  By definition, if the claimant had a well-founded fear of persecution, not only in the place from which he has fled, but also in the place to which he might be returned, there can be no question of internal relocation.  The question pre-supposes that there is some place within his country of origin to which he could be returned without fear of persecution.  It asks whether, in all the circumstances, it would be unduly harsh to expect him to go there.  If it is reasonable to expect him to go there, then he can no longer claim to be outside his country of origin because of his well-founded fear of persecution.  Mercifully, the test accepts that if it is not reasonable to expect him to go there, then his continued absence from his country of origin remains due to his well-founded fear of persecution.

22. Further, although the test of reasonableness is a stringent one – whether it would be ‘unduly harsh’ to expect the claimant to return – it is not to be equated with a real risk that the claimant would be subjected to inhuman or degrading treatment or punishment so serious as to meet the high threshold set by article 3 of the European Convention on Human Rights.  As Lord Bingham points out, this is not what was meant by the references to article 3 in Januzi, including what was said by my noble and learned friend, Lord Hope of Craighead, when he referred to ‘the most basic of human rights that are universally recognised’ at para 54.  Obviously, if there were a real risk of such ill-treatment, return would be precluded by article 3 itself as well as being unreasonable in Refugee Convention terms.  But internal relocation is a different question.”

C. SUBMISSIONS

Mr Vokes and Ms Rutherfords’ written submissions

The appellant’s written submissions also sought to persuade us by reference to Elgafaji para 39 (which sets out what has become known as the “sliding-scale” principle as follows: “…the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection”) and GS, paras 62 and 74, that even if we were to find that ordinary civilians are not at Article 15(c) risk anywhere in Afghanistan, we should nevertheless identify intermediate categories of persons who might be at risk by virtue of being less able than ordinary civilians to avoid the on-going violence. We refer to these as “intermediate categories” as those submissions clearly meant to identify categories falling short of the outright risk categories ((i)-(xi)) as identified by UNHCR in its 17 December 2010 Eligibility Guidelines cited at para 86 above.  Mr Vokes and Ms Rutherford gave as examples of intermediate categories:

“ fruit sellers outside public buildings, day labourers on state construction projects who need as a necessity of life to be employed in this fashion or small farmers or landless labourers who out of economic necessity have to keep farming in situations of armed warfare breaking out on their land or the land that they work. The latter category would include businessmen, more senior state officials, war lords, large landowners.”

Mr Vokes’ oral submissions

Mr Blundell’s written submissions

Mr Blundell’s oral submissions

D. OUR ASSESSMENT

(a)        General

Initial observations

“the degree of indiscriminate violence characterising the armed conflict taking place… (reach) such a high level that substantial grounds are shown for believing that any civilian, returned to the relevant country or, as the case may be, to the relevant region, would solely on account of his presence on the territory or that country or region, face a real risk of being subject to that threat ?”

  The inclusive approach

The expert evidence

Dr Seddon

Dr Giustozzi

The ARC Evidence

“The information included in this section demonstrates that despite the fact that Kabul is considered safer than other provinces, it has become increasingly insecure as demonstrated by the incidence and strength of insurgent attacks carried out in the capital, including in fortified areas” [emphasis added].

What in our view the researcher should have added here was chapter and verse as to the sources which considered Kabul to be safer than other provinces and greater precision as to which provinces (all provinces?).

“The following incidents resulting in civilian deaths and injury detailed in this section are not exhaustive, but rather indicative of the current security situation in Ghazni province”.

Yet of the fifteen incidents then listed, eight refer to deaths of police officers or insurgents [i.e. combatants] without any reference to civilian deaths or injuries.  Another incident refers to the killing on 18 June 2011 of four Afghan private security guards protecting supply trucks for NATO-led troops – hardly (if at all) typical civilian casualties.

Afghanistan as a whole

UNHCR

Decisions by other courts in Europe

“Enhanced risk  categories”

“If there are no personal circumstances increasing risk, an especially high level of indiscriminate violence is necessary; if personal circumstances increasing risk are present, a lower level of indiscriminate violence will suffice. These factors that increase risk primarily include those personal circumstances that make the applicant appear more severely affected by general, non-selective violence, for example because he is forced by reason of his profession – e.g. as a physician or journalist – to spend time near the source of danger…”

It also seems to us that this is consistent with the position set out in the UKBA OGN 3.6.12 (see above para 90). But we found Mr Vokes’ and Ms Rutherford’s proposed examples somewhat too hypothetical (and in part somewhat too diverse: see above para 208) and we think it unwise to attempt identification of actual categories without fuller analysis of actual existent examples in relation to specific locations. Further, and this was the point mainly relied on by Mr Blundell, in the context of Afghanistan, there would ordinarily be (save for certain categories of women) a viable internal relocation alternative for a returnee who appeared to fall into any such intermediate category. Manifestly the appellant in this case did not fall within any intermediate risk category.

Relevance of other metrics

EDPs and IDPs

The situation province-by-province

Internal relocation

When analysing this issue, it is important to clarify that the respondent’s position as expressed in submissions before us must clearly be read in the context of the concession that has been made in recent Home Office OGNs on Afghanistan, namely that whilst women with a male support network may be able to relocate internally “…it would be unreasonable to expect lone women and female heads of household to relocate internally” (February 2012 OGN, 3.10.8) and the Tribunal sees no basis for taking a different view. (Much the same position was taken by the ECtHR in the case of N v Sweden on the basis of a close consideration of major background sources.)

Kabul

Ghazni

Internal travel

The future situation

General conclusions

A. Law etc:

The First-tier Tribunal materially erred in law in its decision on Article 15(c) and its decision as regards Article 15(c) has been set aside.

The decision we remake is to dismiss the appellant’s appeal on Article 15(c) grounds (It has already been dismissed on asylum and human rights grounds). 

Signed Date

Upper Tribunal Judge Storey

Upper Tribunal

(Immigration and Asylum Chamber)

Re: AK (Appeal Number: AA/08956/2009)

Representation:

For the Appellant: Miss R Akther, Counsel, instructed by Malik & Malik

For the Respondent: Miss F Saunders, Home Office Presenting Officer

ERROR OF LAW DECISION AND FURTHER DIRECTIONS, 19 March 2010

1. The appellant is a national of Afghanistan.  On 31 July 2009 the respondent made a decision to refuse leave to enter having refused to grant asylum. In a determination notified on 28 September 2009 Immigration Judge (IJ) Obhi allowed his appeal.  The respondent’s success in an application for reconsideration brought the matter before me, who must now decide it as a judge of the Immigration and Asylum Chamber.