The Upper Tribunal has in AS (Safety of Kabul) Afghanistan CG [2018] UKUT 118 (IAC) given new country guidance in cases concerning removal to Kabul.

The new guidance covers two main areas of concern. The first is the risk, on return to Kabul, from the Taliban. The second focuses on internal relocation to Kabul.

This hefty judgment weighs in at 90-odd pages. What follows is a summary of its main points. All block quotations are from the official headnote except where it says otherwise.

Risk from the Taliban

The Tribunal summarises its finding on this point as follows:

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.

The appellant had argued that such persecution can arise in two ways.

First, because that person is a specific target for the Taliban. The tribunal heard evidence that a blacklist of 14,500 names exists in Afghanistan.

But it found that even in the unlikely case that such a blacklist exists, there is insufficient evidence to support a real risk of a low-profile person being identified, located and targeted.

The message for practitioners is clear: only a named or high profile target will have a chance of making out a real risk of persecution from the Taliban in Kabul.

The second way such persecution was said to arise was through the presence of checkpoints in the city, at which people could be stopped, questioned, and identified for persecution.

The tribunal dismissed this point (at paragraph 185):

the chances of encountering such a checkpoint, being stopped at it, being questioned by the Taliban, being identified as a target and suffering harm as a result are, cumulatively, too remote to give rise to a real risk of harm.

Internal relocation: lack of support network

The second area focused on in what circumstances it is reasonable to expect an Afghan to internally relocate to Kabul.

The first and familiar point was the relevance of a lack of a support network in Kabul. The guidance will not help appellants on this point:

Having regard to the security and humanitarian situation in Kabul as well as the difficulties faced by the population living there (primarily the urban poor but also IDPs and other returnees, which are not dissimilar to the conditions faced throughout may other parts of Afghanistan); it will not, in general be unreasonable or unduly harsh for a single adult male in good health to relocate to Kabul even if he does not have any specific connections or support network in Kabul.

The tribunal appears to open some windows of opportunity:

the particular circumstances of an individual applicant must be taken into account in the context of conditions in the place of relocation, including a person’s age, nature and quality of support network/connections with Kabul/Afghanistan, their physical and mental health, and their language, education and vocational skills when determining whether a person falls within the general position set out above.

But the enumeration of these factors may hinder appellants as much as they will help. The mind turns to the male Afghan child refugees who have obtained some form of time-limited protection in the UK, to be reviewed again upon adulthood. In what can appear somewhat of a double-bind, signs of integration — for instance, having learnt English, or undertaken educational or vocational training — will be held up by the Home Office as examples of adaptability, and therefore of the reasonableness of their internal relocation to the Afghan capital.

Finally, appellants may have to, in effect, show a lack of support network and particular vulnerability:

A person with a support network or specific connections in Kabul is likely to be in a more advantageous position on return, which may counter a particular vulnerability of an individual on return.

Internal relocation: civilian casualties

The tribunal’s guidance comes in the wake of a number of reports of a steep increase in civilian casualties in Kabul.

We know from AK (Article 15(c)) that, in the view of the tribunal, violence in Kabul is insufficient to give rise to a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence. The new country guidance does not affect this decision.

The country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to the (un)reasonableness of internal relocation to Kabul (and other potential places of internal relocation) for certain categories of women remains unaffected by this decision.

But the tribunal also considered whether the security decision is so bad as to render internal relocation to Kabul unreasonable or unduly harsh.

Although Kabul suffered the highest number of civilian casualties (in the latest UNAMA figures from 2017) and the number of security incidents is increasing, the proportion of the population directly affected by the security situation is tiny. The current security situation in Kabul is not at such a level as to render internal relocation unreasonable or unduly harsh.

Internal relocation: socio-economic factors

The final area of guidance concerns certain socio-economic factors which may be taken into account when deciding whether it is generally unsafe or unreasonable for a single male to return to Afghanistan.

The Tribunal offers some guidance as to the finding of accommodation (at paragraph 220):

We do not find that a single male returning to Kabul would face accommodation conditions which are materially worse than that available in other parts of Afghanistan.

In relation to healthcare (at paragraph 221):

There is little to suggest that a returnee in good health is any worse off or has any less access to healthcare than the majority of the population in Kabul, and the position is better there than in other parts of Afghanistan.

Finding in it is not generally unsafe of unreasonable for a single healthy man to internally relocate to Kabul, the tribunal emphasised that a case-by-case consideration of each individual is required. Various factors were identified which may be relevant:

Turning to socio-economic factors, the tribunal’s reasoning finishes with an indication of some which may be relevant when deciding whether internal relocation is unsafe or unduly harsh (at paragraph 230):

1. Age, including the age at which a person left Afghanistan.
2. Nature and quality of connections to Kabul and/or Afghanistan.
3. Physical and mental health.
4. Language, education and vocational and skills.

As ever, the strength of one factor may counteract and balance the weakness of another.

Country guidance and the passage of time

The appellant argued an interesting point that the guidance in AK (Article 15(c))[2012] UKUT 163 (IAC) should be treated as no longer binding, due in part to the significant passage of time since its promulgation in 2012.

Those reading reports of the recent increase in indiscriminate civilian killing in the country might be surprised that the legal authority on the situation regarding indiscriminate violence in Afghanistan is reaching its sixth birthday.

The argument did not succeed: the tribunal’s view was that country guidance is not rendered inapplicable by the mere fact of the passing of time, and the appeal in question did not turn on Article 15(c).

The country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to Article 15(c) of the Qualification Directive remains unaffected by this decision.

Similarly:

The country guidance in AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC) also remains unaffected by this decision.

But whereas a long-standing statement of the law can become canonical, a long-standing statement of fact can become compromised.

The argument serves as a useful reminder of the length of time since AK (Article 15(c)). Perhaps a challenge to the 2012 judgment is on the cards.