AS (Safety of Kabul) v SSHD [2020] UKUT 130: Revisiting Reasonableness.

18 May 2020

Catherine Philps and Eleri Griffiths of One Pump Court’s Immigration Team discuss the recent Country Guidance in AS (Safety of Kabul) [2020] UKUT 130 and what it means for those representing Afghan asylum seekers.

The Upper Tribunal has again issued new country guidance in AS (Safety of Kabul) Afghanistan [2020] UKUT 130 (IAC). It broadly resembles the guidance given in  2018, but set aside by the Court of Appeal because of a statistical error and remitted for further consideration.

What’s changed? A summary

In sum, arguably not a great deal in practice, though some additional findings with wider implications were made.

The Tribunal considered the two limb approach to internal relocation under Article 8 Qualification Direction (i) safety (whether the person seeking protection will be exposed to a real risk of serious harm or persecution in the place of the proposed internal relocation) and (ii) reasonableness (whether an appellant can reasonably be expected to stay in that part of the country).

On the first limb the Tribunal found that the proportion of the population affected by indiscriminate violence in Kabul is ‘small’ (though not described as ‘tiny’ as in 2018). Thus, despite conflict-related violence in Kabul being “widespread and persistent” it is not at a level where a returnee, even with no family or other network and no experience living in Kabul, would face a serious and individual threat to their life or person by reason of indiscriminate violence.   The Tribunal also maintained that a person who is of lower-level interest for the Taliban (i.e. not a senior government or security services official, or a spy) is not at real risk of persecution from the Taliban in Kabul.

On the second limb, the Tribunal found that, subject to an assessment of the individual’s personal circumstances set out below, it would not be unreasonable for a single healthy man to relocate to Kabul, even if he does not have any family or network in the city and lacks a Tazkera (ID document).

Neither of these findings depart significantly from the 2018 guidance. 

The legal status and weight of UNHCR’s legal analysis and recommendation

A key change since the Tribunal’s last consideration of Kabul in 2018 was the UNHCR’s published stance that internal relocation is not available in Kabul. In its 2018 Guidelines (postdating the 2018 UT determination) UNHCR found that internal relocation is “generally not available in Kabul“. It went further in its 2019 submissions to specifically state that Kabul is “not a relevant IFA“.

AS submitted that there must be a “substantial countervailing reason” to justify the Tribunal reaching a different conclusion to that of the UNHCR, adopting Lord Kerr’s language from IA v SSHD [2014] UKSC 6. The SSHD disagreed and submitted UNHCR did not hold any presumptively binding status and only limited weight should have been given to its view in this case.

The Tribunal rejected AS’s submission, distinguishing IA and instead following HF (Iraq) v SSHD [2013] EWCA Civ 1276. It concluded:

“We therefore approach the UNHCR’s opinion from the perspective that although, because of its unrivalled expertise, as well as its reputation for independence, reliability and objectivity, a legal analysis and recommendation by UNHCR will typically command very considerable weight, the weight that we ultimately decide to attribute to UNHCR’s opinion on internal relocation to Kabul will depend primarily on its intrinsic quality rather than its provenance. Moreover, UNHCR is only one source of material and we are required to reach our own conclusion based on the whole body of evidence before us” [§176].

IA was distinguished on the basis that UNHCR “guidance” about a country is not the same as a UNHCR “decision” about an individual whose particular circumstances have been specifically considered. There was no need for a substantial countervailing reason to reach a different conclusion to UNHCR and whilst recognising its unrivalled expertise and experience, the Tribunal agreed with some of the Respondent’s criticisms of its analysis and departed from its recommendation accordingly.

The approach to serious harm

The Tribunal was invited to examine “whether there is a real risk to the appellant of serious harm from generalised violence” but specifically was not asked to make findings on Article 15(c) QD. Dispute arose as to what threshold applied.

The Tribunal did nevertheless consider whether AS was at risk within the meaning of Article 15(c). It held that the term “serious harm” in Article 8(1) QD should be interpreted in accordance with the Article 15 definition. It considered that the 2018 panel’s comments that it is not necessary to reach the threshold in Article 15(c) in order for internal relocation to be unavailable was made only in respect of the second limb (reasonableness), not the first (relevance/safety), in respect of which the Article 15 threshold must be applied. Any instance of serious harm not covered by or falling short of the threshold in Article 15 QD would not escape consideration as it would be assessed as part of the broad holistic evaluation of reasonableness in the second limb of Article 8(1) QD.

Limiting its consideration to Article 15(c) (not (a) or (b)), the Tribunal made the following findings:

• Kabul (both the city and province) is significantly affected by widespread and longstanding conflict-related violence and has been at a relatively consistent level since at least 2016.
• Much of the violence is indiscriminate and whilst only some is targeted (e.g. at police, embassies or ethnic groups) that too affects civilians in an indiscriminate way.
• Risk exposure is not the same for everyone: a person who stays at home most of the time will face a lower risk than an economically active person who spends time in crowded locations.
• Someone with understanding of the culture and society will be more adept at avoiding violence than someone who is ignorant of societal norms.
• Casualty rates do not convey the full picture of the risk of serious harm in Kabul: they do not take into account the indirect effect of violence (such as the impact on a family of a breadwinner being killed or injured), the psychological impact on individuals who witness or worry about violence, and the cumulative impact of violence (or the threat of violence) persisting over many years.
• The Article 15(c) threshold was not met. Whilst acknowledging the difficulties in drawing conclusions from the available statistics, the Tribunal concluded that the risk to an economically active male returnee who has not previously lived in Kabul City of being a casualty of conflict-related violence is in the region of 1 in 1000.
• There were parts of Afghanistan where the risk was substantially higher risk than in Kabul and the risk of indiscriminate violence in Kabul was therefore found to be low.
• Violent crime, whilst prevalent, was not at such a high level that the appellant would be at real risk merely on account of his presence in Kabul.

Reasonableness of relocation

The Court of Appeal’s guidance on internal relocation was re-emphasised. When looked at holistically, it would generally not be unreasonable “for a single healthy man to relocate to Kabul, even if he does not have any family or network in the city and lacks a Tazkera”.

However, “in all cases an individualised case-by-case assessment is required, taking into account an individual’s personal circumstances including factors such as his age, health, disability, languages spoken, educational and professional background, length of time outside of Afghanistan, connections to and experience of Kabul and family situation and relationships” [§252].

The need for individual assessment therefore remains crucial. The Tribunal set out some factors which require consideration

Safety and Security: Safety and security issues in Kabul, as dealt with under the first limb are not determinative, but “highly relevant” to the reasonableness of return.

Poverty and humanitarian conditions: Most of Kabul’s population are poor, with inadequate housing and sanitation, lack access to potable water and struggle to earn sufficient income to sustain itself in a society without any safety net. But, the situation is significantly better than much of the rest of Afghanistan.

Family and other networks:  A returnee with a support network or specific connections in Kabul may be in a significantly stronger position than others, but they are not essential to obtaining accomodation or employment. In some cases, the availability of a network will counter a particular vulnerability of an individual on return. Afghans are in general good at building networks which can be built and developed on return.

Accommodation: A single male without the responsibility of a family could sleep and base himself in a “chai khana” (described by EASO as an “inexpensive low quality guesthouse utilised by single men”). In due course, once he has established himself, he might find a more permanent place to reside.

Employment:  A returnee without connections would be unlikely to find work in the formal economy (in fact, 2018 findings, which were upheld here, found such prospects to be “virtually impossible”). They would then be dependent on the informal sector – in particular manual day labourer work. It is necessary to consider whether an individual would be capable (e.g. in the light of his age, health, physical capabilities and other factors) of undertaking such work, including presenting himself in a way which would attract employers in the competitive marketplace (which includes a disproportionate number of men seeking each job – some bringing their own tools)

Identity Document (Tazkera):  Whilst a returnee is disadvantaged without a Tazkera, that does make internal relocation to Kabul unreasonable. It will prevent a returnee from accessing many government services and obtaining formal employment and leave the returnee more exposed to potential harassment from the authorities. It will not however prevent a returnee from obtaining accommodation in informal settlements/slums (which make up most of Kabul’s accommodation), or obtaining informal work, such as a day labourer. A Tazkera cannot generally be obtained in Kabul and requires return to the home area.

Mental Health: The Tribunal maintained that the conflict has resulted in mental health problems for many inhabitants of Kabul, but there is a lack of facilities (and trained professionals) available to provide treatment.

Experience of returnees and returnee assistance: Generally, a returnee will be able to access sufficient assistance and funds to accommodate and feed himself for 4 – 6 weeks in Kabul without earning an income. Whilst some are suspicious and hostile towards returnees, this was primarily because of poverty, lack of accommodation and the absence of employment opportunities, as well as the security situation not because they have returned from the west. The mere fact of being a returnee does not prevent a person accessing accommodation or work or establishing, or re-establishing, a network, although care would need to be taken to avoid those hostile people.

Age: Returnees of any age without a network will face significant challenges establishing themselves in Kabul. The age when they left Afghanistan is also relevant. A person who left Afghanistan at a young age may, depending on individual circumstances, be less able to navigate the challenges of the city than someone who spent their formative years there.

Points to note

Whilst the new guidance is lengthy and detailed, the practical approach to Afghan asylum claims is largely unchanged.

It is still necessary when assessing internal relocation to consider first the safety question (relevance). If, and only if that is not in favour of the Appellant, the reasonableness question then arises.

The findings made by the Tribunal on security risk might at first glance appear dispositive on the first limb. However:

i. Evidence on dangers in Afghanistan shows that the situation is fluid. The Tribunal based its assessment on casualty rate, having regard to population increase. Thus, if casualty rates rise whilst the population does not (including the rate of cross-border returnees), this impacts on the overall assessment. Up to date evidence on security situation and the population is recommended. Pupil Grace Cowell wrote on the recent maternity ward attack in Kabul here.

ii. Secondly, the Tribunal only partially applied the Article 15(c) threshold at the first limb. It suggested that the “sliding scale” assessment of Article 15(c) (whereby 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) was not relevant to the first limb as it is subsumed within the reasonableness assessment of the second. This is contentious. As per Elgafaji individual characteristics which would make a returnee more vulnerable to danger may make it unsafe to return, quite apart from whether he can settle or establish himself. If the safety question is resolved in his favour on that basis, the first limb should be satisfied without more and the second not require consideration. It is therefore also recommended that the evidence specifically deals with whether the Appellant’s particular circumstances mean he is specifically affected by the violence, as well as the points on his ability to cope with resettlement.

iii. Thirdly, IAC Practice Direction 12 sets out the authority afforded to Country Guidance including being an authoritative finding on the country guidance issue identified in the determination (§12.2). The Tribunal was not asked for Country Guidance on Article 15(c) and did not hear any argument on the sliding scale. Its findings should be considered in that context, particularly if the SSHD seeks to rely on those findings in an actual Article 15(c) challenge (Also, the headnote specifically says that AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to Article 15(c) QD remains unaffected by this decision and it cannot therefore be applied as a replacement to that).

 As to the assessment of reasonableness under the second limb:

i. The Tribunal’s findings on returnees from the West maintained the position from 2018, that risk from westernisation was categorically rejected. However, again neither in 2018 nor 2020 was the Tribunal asked for Country Guidance on Westernisation nor were the arguments made on that basis. Applying paragraph 12.2 of the practice direction, those findings should not hold country guidance authority status.

ii. A returnee’s total circumstances must be considered but certain issues will affect multiple factors. Mental or physical health restrictions or past trauma will not only be relevant to the question of potential deterioration in their health due to lack of treatment (crucially, the Tribunal accepted that psychiatric services are ‘inadequate’(§82-83), but may also affect whether they can cope in the unlocked and insecure “chai khana” (described as the only realistic option for a single man), or participate in the “precarious” labour market, or sustain themselves.

iii. The Tribunal did not find that someone with a support network would always overcome personal vulnerabilities, only that he might.

iv. That an individual assessment is necessary must be emphasised. The Tribunal dismissed AS’s appeal, but he was now in his mid-thirties, had left Afghanistan as an adult in his early twenties, had spent most of his formative years there with 9 years of schooling and experience working in farming. There was no evidence of mental or physical health problem. For many clients seeking asylum from Afghanistan, this will not be the case.

Finally, a short note on the Tribunal’s approach to the UNHCR’s guidance.

The Tribunal’s distinction made between this case and IA is arguably artificial. The point made by Lord Kerr in IA, whilst rejecting any presumption or shift in burden, related to the UNHCR’s position in investigating country circumstances i.e. its methods, knowledge and expertise. Its decision on a particular case will invariably be informed by its knowledge of a particular country, as is its published recommendations. Therefore, whilst it is right that the Tribunal must consider the whole body of evidence before it, it is the providence of UNHCR’s evidence that gives it intrinsic quality and on that basis, there should be a “substantial countervailing reason” to depart from its conclusion. Likewise, criticism could be levelled at the Tribunal’s application of R(M (Eritrea) v SSHD [2014] UKSC 12; in that case comments were made in the context that no recommendation had in fact been made by UNHCR there, which is not the case here. It remains to be seen whether further litigation will follow.

Catherine Philps

Eleri Griffiths

One Pump Court

17.5.2020

 

 

 

 

 

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