New Afghanistan Country Guidance provides a clear pathway for asylum-seekers to win appeals

Thursday 7 May 2020

Sonali Naik QC, Ronan Toal and Gemma Loughran of the Garden Court Immigration Team represented the appellant, instructed by Kam Dhanjal of JD Spicer Zeb Solicitors.   

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In most respects, the new Country Guidance does not significantly depart from the guidance previously given in AS (Safety of Kabul)Afghanistan [2018] UKUT 118 (IAC). However, the determination repays careful and close reading, as it contains a great deal of material that should guide lawyers in preparing cases for Afghan asylum-seekers. Although AS himself lost his appeal, the determination provides a clear pathway for some Afghan asylum-seekers to win.

Key findings about the evidence

The Tribunal made some key observations about the expert evidence:

  • Dr Schuster’s evidence was clear, comprehensive and well-researched and the Tribunal attached significant weight to it [78];
  • Dr Ahmad’s evidence about mental health in conflict zones was helpful and it was within her expertise to comment on ‘how people in general respond to living in a conflict zone and the relevance to this of experiencing trauma as a child’ and the availability of mental health treatment in Afghanistan. However, the Tribunal noted that there was no evidence in this case suggesting that AS himself suffered from any mental health condition [84]. 

The Tribunal rejected a legal submission that a “substantial countervailing reason” was needed to depart from the UNHCR Eligibility Guidelines. It concluded 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,” [176].

The Tribunal accepted some of the SSHD’s criticisms of the UNHCR Eligibility Guidelines’ position on Kabul, in particular that:

  • The UNHCR had not acknowledged that, although the absolute numbers of casualties were higher in Kabul than any other province, Kabul was not the province with the highest rate of casualties relative to its population [189];
  • The UNAMA figures did not support the view that there were “negative trends” in the security situation for civilians [190] and UNHCR had relied on short periods with high casualty statistics without taking into consideration that these were not necessarily representative [191]; and
  • UNHCR relied on the rapid population growth in the wake of returns from Iran/Pakistan, without engaging with the IOM statistics [192]; and
  • UNHCR’s conclusion that an IFA/IRA was “generally not available” in Kabul did not distinguish between relevance and reasonableness [193].

The parties agreed that no weight should be given to EASO’s position that an IFA/IRA in Kabul could be reasonable for a single able-bodied man depending on his individual circumstances, because EASO had wrongly conflated Article 3 with the unreasonable/unduly harsh test for internal relocation [197]-[198].

Key conclusions about internal relocation to Kabul

Under the relevance limb, the Tribunal accepted that an economically active person would be at higher risk than a person who stayed at home most of the time, and that a person with an understanding of the culture/society would be more adept at avoiding violence than someone who was ignorant of societal norms [202]. It also accepted that the casualty rates did not take into account the indirect effects of violence [203]. 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 one in a thousand, which corresponds to 100 out of 100,000” [206]. (NB this was the risk that the previous AS tribunal had miscalculated to be 1 in 10,000 and described as “tiny”). It concluded – contrary to UNHCR’s conclusion – that “the risk from indiscriminate violence in Kabul is low and that since 2016 the level of risk has remained at a steady level” [208].

Under the reasonableness limb, the key findings about the economic/social conditions a returnee would face are as follows:

  • Most of Kabul’s population is poor, lives in inadequate housing with inadequate sanitation, lacks access to potable water, and struggles to earn sufficient income to sustain itself in a society without any safety net. But the situation in Kabul was significantly better than most of the rest of Afghanistan [224]-[227]. 
  • A person without family/other networks in Kabul was at a disadvantage – but a people without such networks may be able to build them in time. And even a person without a network would be able to find inexpensive accommodation in a “chai khana” and (depending on physical abilities, health and other individual characteristics) be able to work as a day labourer in the informal labour market in Kabul [228]-[230]. It is worth nothing that Dr Schuster’s evidence was that the ‘appellant could find himself competing with 100-150 men waiting for, say, only 10 day-labour jobs; and those with a network/connections would be more likely to obtain the work.’ [74]
  • A single male would be able to reside in a “chai khana” and in due course, once he has established himself, find a more permanent place to reside. Whilst the chai khana would involve sharing a (dirty and unlocked) room and washing facilities– and would lack privacy - a single man without the responsibility of a family would have an adequate place in which to sleep and base himself [231]-[233].
  • A returnee without connections/networks would be able to work as an informal day labourer. Whether a particular returnee would be able to earn sufficient income from this type of work will depend on the individual circumstances. As the available work would mostly be manual in nature, 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 and would be able to present himself in a way that would attract employers, who frequently will be selecting individuals from a pool of men (some bringing their own tools) who congregate at known meeting points [234]-[236].
  • A person without a Tazkera would be unable to access many government services and obtain formal employment. But this would not stop them accessing work as a day labourer or accommodation in a “chai khana” or in informal settlements/slums. A person without a Tazkera would be disadvantaged, but not to the extent that this would make internal relocation to Kabul unreasonable [237]-[240].
  • There was a lack of mental health facilities and professionals [241]-[242].
  • A returnee would receive a basic level of support; they would be able to stay in a hotel for up to 2 weeks and then in inexpensive “chai khana” accommodation using the £125 cash received at the airport. A returnee, generally, would be able to access sufficient assistance and funds so as to be in a position to accommodate and feed himself for the first 4 - 6 weeks in Kabul without earning an income [243]-[245].
  • Although there was some suspicion/hostility towards returnees, the mere fact of being a returnee did not stop a person accessing “chai khana” accommodation, being taken on for day labour work in the informal market, or establishing or re-establishing a network [246].
  • A person who left Afghanistan at a young age may, depending on individual circumstances, be less able than someone who spent their formative years in Afghanistan to navigate the challenges of the city by, for example, finding work and accommodation [251].

The Tribunal’s overall conclusion on reasonableness is expressed at [252]:

“Taking a holistic view, and considering all of the circumstances together, we are satisfied that generally 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. 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.”

What this means for lawyers

If you are a lawyer representing a young male Afghan asylum-seeker with no networks/connections in Kabul, you should think about the following key points: 

  • Robust medico-legal evidence will be critically important. If your client is suffering from any mental health conditions, this may allow you to show that your client’s vulnerabilities will impair his ability to find work as a day labourer and to cope with the harshness of daily life in Kabul – in contradistinction to AS, where the Tribunal commented specifically on the lack of any evidence that he was suffering from any mental health problems. Bear in mind that, as the academic literature shows, mental health problems are extremely widespread among former unaccompanied asylum-seeking children, and the fact that a client has not disclosed mental health problems to you or sought medical help does not mean he is not suffering from mental health problems. Dr Ahmad cited a World Health Organisation estimate in June 2019 that one in five people in post-conflict settings have depression, anxiety disorder, posttraumatic stress disorder, bipolar disorder or schizophrenia. [82] You should set out to document any mental health problems and to deploy them as part of your argument.
  • The tribunal accepted that Dr Ahmad was able to comment on ‘how people in general respond to living in a conflict zone and the relevance to this of experiencing trauma as a child. It was her evidence that AS ‘can (and she believes he will, based on the academic literature and her research) suffer psychologically in a war zone even without a diagnosed psychiatric disorder.’ [82] Even if your client is not currently suffering from any mental health conditions you should consider instructing a psychiatrist to provide an opinion as to the likely effect on your client’s mental health of being forced to live in Kabul with the threats to mental health identified by Dr Ahmad;
  • It is also clearly acknowledged by the Tribunal that factors such as educational/professional background, physical health, age, and length of time outside Afghanistan will be relevant. The critical issue is whether your client will be able to cope with doing precarious, manual work as a day labourer in the informal economy as their only means of survival, and/or with building connections/networks on return that will allow them to improve their economic position. This is a fact-specific analysis that will inevitably depend on their personal characteristics – such as whether they are fit and healthy, whether they have been able to work in the past, and their familiarity with the culture and language – and you should gather the evidence to illustrate that they will not be able to cope with this.
  • The tribunal acknowledge that a person who left Afghanistan at a young age may, depending on individual circumstances, be less able than someone who spent their formative years in Afghanistan to navigate the challenges of the city by, for example, finding work and accommodation. [251] In dismissing AS’s appeal they placed significant weight on the fact that AS ‘has the advantage of having left Afghanistan as an adult’ and having spent most of his life and formative years in Afghanistan he ‘has familiarity with the societal norms and culture’. [259] It is important to think about what age your client left Afghanistan, their familiarity with the societal norms and culture of Afghanistan and whether that will impact on their ability to navigate the city. 

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