In AS (Safety of Kabul) Afghanistan CG [2020] UKUT 130 (IAC) the Upper Tribunal has approved its 2018 decision that a returning male in good health can safely and reasonably relocate to Kabul subject to individual factors. That decision had been set aside and remitted to the tribunal by the Court of Appeal in AS (Afghanistan) v SSHD [2019] EWCA Civ 873 for reasons discussed in an earlier post.

This post attempts to set out precisely what the tribunal decided, what it didn’t, and how to marshal the factors relevant to an individualised assessment in each case.

Risk in Kabul

On refugee protection, the Upper Tribunal held that a person who is of lower-level interest to the Taliban (i.e. not a senior government or security services official, or a spy) is not at real risk of persecution in Kabul. The tribunal did not clarify, as it might have, that a person who is, or who is perceived to be, in the higher interest category (e.g. a spy), would be at real risk of persecution.

The tribunal did not consider or decide the risk of persecution in Kabul from Afghan state agents, or from any non-state actor other than the Taliban [paragraphs 28 and 199-200].

On Article 15(c) of the EU Qualification Directive, the tribunal accepted that:

• an economically active person would be at higher risk than a person who stayed at home most of the time
• 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], and
• that the casualty rates did not take into account the indirect effects of violence [203].

But it concluded there is no real risk of treatment contrary to Article 15(c) in Kabul as the risk of death or injury is “small” [214]. 

It is unclear whether and/or to what extent individual circumstances lowered the threshold of conflict intensity in the tribunal’s assessment as it explicitly did not apply the “sliding scale” approach to risk under Article 15(c) [40-42]. Both a person’s individual circumstances, as well as past experiences of such harm, lower the threshold required: C-465/07 Elgafaji v Staatssecretaris van Justitie at [39-42] of that case.

Although some of the violence is targeted (e.g. at police, embassies or ethnic groups) [201], the tribunal did not reach any conclusion about the specific risks to ethnic minorities such as the Hazara. 

The tribunal did not determine the risk of treatment contrary to Article 3 of the European Convention on Human Rights e.g. due to individual characteristics and/or general factors [28, 199-200].

Risk outside Kabul

The tribunal did not decide which groups of people are at real risk of persecution or serious harm outside Kabul on any basis. It did note the risk from indiscriminate violence is greater elsewhere [247], observing “there are parts of Afghanistan where a civilian is at substantially higher risk than in Kabul” [207(a)]. In support, figures were provided for several provinces with higher casualty rates than Kabul: Nangarhar (0.81 per thousand), Kunar (0.52 per thousand), Uruzgan (0.51 per thousand), Paktiya (0.48 per thousand), and Langhman (0.34 per thousand) [61(c) and 94].

Relocation to Kabul

The tribunal held that it is generally safe and reasonable for a single adult male in good health to relocate to Kabul [252]. The position for women and children is different: see AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) and AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC) respectively. 

Critical to the tribunal’s conclusion that single healthy men can relocate was its rejection of the UNHCR’s Eligibility Guidelines. UNHCR was not an interested party before the tribunal as it had been in the Court of Appeal. The tribunal rejected AS’s submission that a “substantial countervailing reason” was needed to depart from the Eligibility Guidelines [176] and disagreed with UNHCR’s position that relocation is generally not available [189], [190], and [192-193]. 

Safety and security

Notwithstanding the tribunal’s conclusion that the risk in Kabul is small, safety and security issues are highly relevant to the reasonableness of return but are not by themselves determinative [216]:

1. Conflict violence: Violence “connected to armed conflict is widespread and persistent” in Kabul [214], “in particular as a result of violent attacks by Taliban and ISIS” [213].
2. Crime: “There is also a significant problem of violent crime” [201]. It is “prevalent” but not high enough to give rise to a real risk of serious harm [209].
3. Tazkera: A lack of Tazkera will leave a returnee more exposed to potential harassment from the authorities [142] and [239]. (Note that a person will not be able to obtain a Tazkera in Kabul and would need to travel to his home area. If their home area is not safe, there is a real risk that a returnee will not be able to obtain a Tazkera [238]).

Personal characteristics 

The tribunal stressed more than once the importance of a fact-specific assessment by reference to the returnee’s personal characteristics:

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]

Physical and mental health is an important factor. It impacts upon a returnee’s capacity and/or ability to work, to endure living conditions below the poverty line, and avoid risks in the city from insecurity and crime.  

There are “very high levels of mental health problems in Afghanistan”, which create “significant needs” [241]. There is “a lack of trained professionals” and “inadequate infrastructure” [241].  According to Dr Ayesha Ahmed, whose views were described by the Tribunal as “helpful”, and “consistent” with the views expressed by UNHCR and others [84]:

1. a large number of people suffer from (undiagnosed and untreated) mental health problems [146];
2. public healthcare is poor quality and medication is frequently counterfeit [83];
3. psychiatric services are “inadequate” [83],
4. there is “little understanding of mental health”, and “…people with mental health conditions are “stigmatised and socially ostracised” [83].

Also relevant is the nature and quality of the person’s support network /connections with Kabul/ Afghanistan. A returnee with a support network or specific connections may be in a significantly stronger position than others and in some cases may be able to counter a particular vulnerability [230].  

On age: returnees of any age without a network will face significant challenges establishing themselves in Kabul. 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 older a person was when they left Afghanistan, the more likely they are to be familiar with employment opportunities and living independently [13(b)].

The language, education and vocational skills factor isn’t really explained. At [13(d)] the tribunal refer to a preserved conclusion from its 2018 decision:

Speaking the local language, as well as educational and vocational skills, will strengthen a person’s prospects in Kabul (paragraph 235).

Whilst an ability to speak Pashto and experience of building work will obviously be relevant, the reference to “educational skills” is less clear. It is presumably not a reference to UK qualifications because, absent specific evidence to the contrary, it’s not obvious why educational achievements in the UK (especially low-level ones) would be accepted in Afghanistan any more than Afghan qualifications would be accepted here. In any event, there is no evidence, and no finding, that they are necessary or sufficient to secure day-labour work. 

Short term

How these individual circumstances interact with the security situation and the socio-economic realities in Kabul can be assessed temporally, starting with the first four to six weeks after return:

1. Basic support: On arrival a returnee would receive a basic level of support. They would be able to stay in a hotel for up to two 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 four to six weeks in Kabul without earning an income [243]-[245].
2. Nature and quality of support network/connections with Kabul/ Afghanistan: A person who is unable to form connections, and who must survive without the benefit of a network, will ordinarily be able to find inexpensive accommodation in a “chai khana” and (depending on physical abilities, health and other individual characteristics) be able work as a day labourer in the informal labour market in Kabul [229].
3. Tazkera: The absence of a Tazkera will not prevent a returnee from obtaining such accommodation or labouring work [239].
4. Accommodation: A 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. Such accommodation is commonplace, inexpensive and widely available [232]. 

Long term 

Relocation must be durable. In HH (Somalia) v SSHD [2010] EWCA Civ 426 at [83], Lord Justice Sedley understood the verb “stay” in Article 8(2) of the Qualification Directive as probably meaning “go to and remain in”. Whether a returnee can “establish himself” in “due course” [232] involves an assessment of the individual’s personal characteristics in the following context: 

1. Work (informal sector): In 2018, the tribunal held “that work as a day labourer, though precarious and without guarantee of regular work, would be available, and would result in earnings sufficient to adequately sustain a single man [234]. But whether a “particular returnee would be able to earn sufficient income from this type of work will depend on the individual circumstances” [236]. It depends on: (a) being “capable of undertaking such work e.g. in the light of age, health, physical capabilities and other factors” [236] and (b) whether he can “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” [236]. Age and contacts may be relevant here. According to Dr Schuster, whose evidence was given “significant weight” [78] by the tribunal, there can be up to 100-150 men competing for only ten day-labour jobs [74], and speaking English would be of “little benefit” [74].
2. Work (formal sector): Unemployment in Kabul is “high”. “Without connections, stable and secure employment would be virtually impossible to obtain” [234], and a returnee “would be unlikely to find work in the formal economy” [235].
3. Tazkera: A lack of Tazkera will prevent a returnee from accessing many government services, and from obtaining formal employment [142] and [239].
4. Accommodation: 74% of people in Kabul live in informal settlements which have very limited sanitation, drainage or access to potable water [231].
5. Poverty and humanitarian conditions: 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 [225].

Comment

Risk

The intensity of violence in Kabul fell to be assessed on a quantitative and qualitative basis, but the tribunal seemed to focus unduly on population size vs. casualties, rather than a cumulative assessment of all relevant metrics: see [203] and [208] in particular.

The tribunal observed there is no “benchmark” or “scale”, to determine whether violence levels are “high or low” [208] but don’t really explain why the risk of harm to civilians in Kabul, represented as 1 in 1000, is not enough [206]. Whilst such risk is “small” arithmetically [261], it’s doubtful many would accept those odds.

If you knew that up to 90 bombs had been planted randomly in Wembley stadium, would you still go there to watch the FA Cup final? And if it’s not the kind of risk we are prepared to take, why is it acceptable for anyone else? The tribunal’s reference to different people having a different “tolerance for taking a risk” [208] is perhaps unfortunate. 

Reasonableness

The tribunal does not intend to provide a closed list of what factors are relevant to the assessment of internal relocation. The impact of COVID-19, in light of returnees from Iran (which has the highest mortality rate in the world), post-dated the tribunal’s assessment as of late December 2019. The organising principle remains: there must be a cumulative assessment of everything relevant to decide whether relocation is reasonable in the circumstances of the individual case.

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