[2003] UKIAT 139
- Case title: RB (Hindu, No risk on return to Afghanistan)
- Appellant name: RB
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Afghanistan
- Judges: Mr R Chalkley, Mr P Rogers JP
- Keywords Hindu, No risk on return to Afghanistan
The decision
Ar RB (Hindu - No Risk on Return to Afganistan) Afghanistan [2003] UKIAT 00139
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing : 23 July 2003 and
25 September 2003 and
27 October 2003
Date Determination notified:
11 November 2003
Before:
Mr Richard Chalkley (Chairman)
Mr P Rogers, JP
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
Ms C. Hulse of counsel, instructed by HSK Solicitors, appeared on behalf of the appellant and Mr S. Bilbe, Senior Home Office Presenting Officers, appeared on behalf of the respondent.
DETERMINATION AND REASONS
1. The appellant is a citizen of Afghanistan who appeals, with leave of the Tribunal, against the determination of an Adjudicator (Mr F.R.C. Such) who in a determination promulgated on 15 January 2003 following a hearing at Taylor House on 20 December 2002, dismissed his appeal against the decision of the respondent taken on 26 March 2001 to direct his removal after refusing asylum.
2. There was no appearance by or on behalf of the appellant, nor indeed on behalf of the respondent, at the hearing before the Adjudicator who proceeded to determine the appeal in accordance with paragraph 33(2)(b) of the Immigration and Asylum Appeals (Procedure) Rules 2000.
3. The appellant had been represented by solicitors who lodged a notice of appeal by way of letter on 28 March 2001. They wrote on 22 November 2002 indicating that they no longer acted on behalf of the appellant and when the appeal came before the Adjudicator he noticed that the notice giving date place and time of the appeal had been given to the appellant who had failed to comply with directions which included completing and returning a form of ‘Notice of Reply’.
4. The grounds of appeal assert that the appellant's current solicitors had been instructed as long ago as 27 September 2001 but that because the appellant's previous solicitors had not notified the Immigration Appeal Authority that HSK, Solicitors, had now been instructed, they had only received notification of the hearing via the appellant on 19 December 2002. They indicated that the form of ‘Reply’ was posted to the Immigration Appellate Authority at the Arnhem Support Centre, Leicester on 19 December 2002. How they could possibly have thought that an Adjudicator sitting in London at 10.0 am the following morning would receive a copy of such reply is not explained.
5. The Tribunal took the view that in these circumstances the Adjudicator's determination could not be permitted to stand and, at an earlier hearing on 4 June 2002, granted leave for the appellant to give evidence in order that the Tribunal could determine his appeal.
6. Unfortunately Miss Hulse had not been fully instructed by the appellant's solicitors. She was not aware that at the hearing before us on 23 July the Tribunal were expecting to hear the appellant's asylum appeal. However, the appellant was present, as was an interpreter and the appellant's wife. After ascertaining that the documents which had been submitted on behalf on the appellant had not, apparently, been handed to counsel or submitted to the Home Office, we granted an adjournment in order that the representatives could be supplied with copies and have time to read the documents. We indicated that we would give them as much time as they would require and that they should notify our usher when they were ready to proceed. After the adjournment Miss Hulse was content to proceed with the hearing and fortunately that was not hampered by the failure of her instructing solicitors to give her full and accurate instructions.
7. The appellant was called to give evidence and we ensured that he and the interpreter both understood each other. He confirmed that his name was Ram Basant Talwar. He confirmed his address and that he had instructed his solicitors to prepare a witness statement. He was shown a copy of that statement by counsel and he identified his signature at the end of it. He confirmed that the contents were true and correct and that he wished to adopt the statement as his evidence-in-chief.
8. The Tribunal cautioned the appellant that he should only adopt the statement as part of his evidence if he was satisfied that it was true and accurate and he was happy with its contents. We explained to him that if later, when giving evidence, he contradicted some part of his statement, that may cause us to believe that he was not telling us the truth and in that event there was a possibility that he may damage his appeal. We asked him to satisfy himself that he was entirely happy with the contents of the statement. He told us that he was and that he wished to adopt it. He confirmed that it had been read back to him in his own language.
9. In answer to questions put to him by his counsel he confirmed that the name ‘Talwar’ was his family name. Counsel asked him to explain why, if Talwar was his family name, he had applied for asylum in the name ‘Ram Basant’ and subsequently given notice of appeal in that name. He said that when he went to see solicitors he produced an identity card which was in the name of Ram Basant and which did not bear his family name. His solicitors had therefore told him to use the name Ram Basant rather than his full name. He confirmed that when he was married he told the registrar his full and accurate name, Ram Basant Talwar, and that is the name which appears on his marriage certificate.
10. He confirmed that in his statement he explained that his father had been in the military in Afghanistan. This was both during and before the Communist Party regime of Dr Najeeb. His grandfather was a magistrate also, both during and before the Communist regime. His family had suffered under both the Mujahadeen and the Taliban regimes and he now fears return to Afghanistan because he is a Hindu. Hindus were discriminated against under the Taliban because the Taliban were Muslims. Counsel pointed out to him that the Taliban regime no longer existed in Afghanistan and he replied to the effect that the Taliban have not actually left Afghanistan and are all over the country.
11. Prior to the Mujahadeen, the government did not use to bother about people’s religion. After the Mujahadeen took power they said Hindus should either convert to Islam or leave the country.
12. People who were in power under the Mujahadeen regime were the same people who were in power under the Taliban. He did not believe that these people had left the country now. They are not in power but they are trying to gain control.
13. The appellant’s father was the leader of all “military arms” in the Khugseani area. He was persecuted because he was in control of weapons. People came to the family home asking where he had kept the weapons. He said that he had left them where they were but they accused him of selling arms and keeping the money. He was detained and a few days later his body was retuned to the family. They were not allowed to cremate it.
14. His father was attacked because army weapons could not be found and his father had been responsible for them.
15. The appellant confirmed that he had not been in contact with his family since the end of the Taliban regime.
16. Cross-examined on behalf of the respondent, the appellant confirmed that his body was returned to the family at the end of May 1996. The appellant was asked when his father was arrested and the appellant replied that it was in May 1996. His father’s body was returned to the family about two to three weeks after his father had been arrested.
17. Miss Hulse asked the appellant if he was sure that it was only a matter of two to three weeks. The appellant confirmed that it was.
18. The appellant was shown a copy of his statement of evidence form setting out the basis of his asylum claim, and referred to what he had said in an accompanying statement. The appellant confirmed that it was his signature at the end of the statement. When it was pointed out to the appellant that he had said that his father was arrested at the end of 1996 and was detained and imprisoned until March 1997 when he was executed in jail, the appellant said that his father had been arrested in 1996. The discrepancies were put to the appellant again and he was asked for his explanation. He remained silent. When he was pressed by the Tribunal to respond he said that he filled in the statement of evidence form with his solicitor and when he was called for interview he said his solicitor had failed to advise him. It was explained to the appellant that he had not answered the question and the discrepancy was again put to him. He again remained silent.
19. The Tribunal read to him what he had said about his father’s detention , arrest and the return of his father’s body and asked him if he could explain the discrepancy between what he had said in his statement and what he had told us in giving evidence. The appellant replied that his father was detained in 1996 and when his body was returned the family were prevented from cremating it. The Tribunal again asked the appellant if he could offer any explanation for the discrepancy between what he had said in his written statement accompanying his statement of evidence form and the evidence he had given to us today. He said he believed that this was because of the difference in the calendars used in Afghanistan and Europe.
20. Mr Hulse asked the appellant when his brother and sister were taken by the Taliban. He replied that it was on 20 December 2000. He confirmed that he had arrived in the United Kingdom on 4 June 2000. He then said that they were taken away again after he came to the United Kingdom. In his statement he had described the first occasion when his brother and sister were taken by the Taliban. They were beaten and asked about their father. Fellow Hindus made representations to the Taliban and secured his brother’s and sister’s release. They returned home and were again taken on 20 December 2000. Since then he has not received any news. The appellant added that his uncle and his brother had sold a shop to send the appellant abroad.
21. After the appellant arrived in the United Kingdom he was told by somebody here that they had seen the appellant's mother, sister and brother and they were all fine. This was in 2000.
22. The Tribunal explained that they had some questions on parts of the appellant's evidence on which they would like clarification. In response to questions put, the appellant explained that his father had been in the army since he was very small. He always served in the army in the same area and was a brigadier. The appellant confirmed that it was very high rank. He said that his father’s full names were Veshamber Bernet Talwar. He was asked if he could explain why the identity card which the appellant had produced showed his father’s names as Veshamber Bernat. He said that this was because his father’s full name had not been written on the identity card either.
23. The Tribunal referred the appellant to his statement when he described his father as a ‘commander in the army’. The appellant confirmed that his father was a senior regular army officer stationed in the area where they lived.
24. The Tribunal drew the appellant's attention to his marriage certificate which had been submitted on his behalf which described the appellant’s father’s ‘rank or profession’ as ‘army clerk’. The appellant said he could not explain this, he had had said that his father was an army officer.
25. The appellant confirmed that he had a relative in the United Kingdom, his cousin’s son. It was his cousin’s son who had been a witness at his wedding and whose name appeared on the appellant's marriage certificate.
26. Re-examined by Miss Hulse, the appellant explained that his father wore a uniform which had rank badges on it, but he did not serve in a fighting unit because Hindus were not required to fight, only Muslims were.
27. His cousin’s son does not have any contact with either his father or the appellant's mother.
28. The appellant confirmed that his wife did not know him when he lived in Afghanistan. She was, however, aware that he was an asylum seeker when they were married.
29. The appellant confirmed that he had asked both the Sikh and the Hindu community in the United Kingdom if they could find out any information about his brother, sister or mother but he had not contacted the Red Cross. He confirmed that his cousin’s son had lived in Kabul but he used to visit in the winter time. He last saw his cousin’s son in Afghanistan in 1996 after his father’s death. His cousin’s son had come to the United Kingdom before the appellant and is younger than the appellant. When he came to United Kingdom the appellant was living in Bolton. He had travelled to London to attend a Hindu temple where he met his cousin’s son.
30. Counsel confirmed that she had completed the appellant's evidence but invited the Tribunal to consider granting an adjournment in order that consideration could be given to calling the appellant's relative as a witness.
31. The Tribunal find that counsel had not been properly instructed by her solicitors and as a result not had the opportunity to consider whether it would be appropriate to call additional evidence. We granted leave and adjourned the proceedings until 12 August.
32. The determination to this point was dictated on 23 July 2003. At the hearing on 23 July 2003, the Tribunal were joined by Mr D.B. Bremner. He was not available to sit at the adjourned hearings and took no further part in discussions concerning this appeal.
33. The matter next came before the Tribunal on 25 September 2003, the hearing on the 12 August having been adjourned before that date, due to administrative reasons. We found ourselves in difficulty and were forced to adjourn the hearing until 22 October 2003 in order that an interpreter who spoke Pushtu and Farsi or Urdu or Punjabi could be booked.
34. At the hearing on 22 October 2003, the proceeding commenced with the Chairman reading aloud the Tribunal's record of proceedings. Both representatives agreed that it was a true and accurate record. Neither of them had any comments or amendments to make on it.
35. We confirmed with Mr Bilbe that he had the same documents before him as we did, including an additional bundle handed in by counsel at the hearing. We then heard evidence from Mr Shami Kumar Talwar. He has been granted four years exceptional leave to remain in the United Kingdom. He is related to the appellant. His father and the appellant are cousins. He confirmed that he was an Afghani citizen and is a Hindu. Before coming to the United Kingdom, he lived in Kabul. He knew the appellant's family who lived in Jalalabad. Prior to his arrival in the United Kingdom, the appellant and witness had met in the appellant's home in Jalalabad sometime towards the end of 1996. The witness went to the appellant's home following the kidnapping of the appellant's father by the Taliban. The witness and his family members went to the appellant's home to learn if there was any news of the appellant's father. Later, the witness heard that the appellant’s body had been returned. It was sometime in 1997 when the body was brought back to the appellant's family home. It was returned some two or three months after the kidnapping. The witness did not visit the appellant's family home again. The witness left Afghanistan some two years later during 1999. He left because he feared that the Taliban would kill him because he was a Hindu. The witness has no contact with his family and has no news of them. Mr Bilbe declined to ask any questions by way of cross-examination. In answer to questions put to the witness by the Tribunal, he said that he did not know what had happened to the appellant's mother, brother or sister. He knew that the appellant's father had been a soldier.
36. We next heard evidence from Ashuk Kumnar. He is the President of the Afghan Hindu Cultural Society and knows the appellant. He has known him since his father was a manager of a bank in Afghanistan. He remembered one occasion in about 1994 when he accompanied his father to Jalalabad and he met the appellant's father in a temple. The witness’s father had specifically commented to the witness that this man (meaning the appellant's father) was a Hindu who was in the army. The witness remembered this because it was almost unique for a Hindu to serve in the Afghani army. The witness was not cross-examined.
37. The appellant's father-in-law, Mr Ram Bitta Puri, was called to give evidence. He confirmed his relationship with the appellant and confirmed that he was a Hindu and Afghani citizen from Kabul. The witness left Afghanistan because he was a refugee. He confirmed that he still owned property in Afghanistan. Hindu properties were taken over by the Mujahadeen. They were not purchased. Hindus were forced to place their thumbprint on a document illegally transferring ownership of the property. He was asked by counsel if he knew the situation in Afghanistan for Hindus. He said that there had been no change and if anything the situation is deteriorating. He confirmed that he had no contact with anyone in Afghanistan.
38. We lastly heard evidence from the appellant's wife, Soneta Talwar. She confirmed that she and the appellant were married on 20 November 2002. She has indefinite leave to remain in the United Kingdom. She met her husband in June 2002 and had not known him before that date. Theirs was an arranged marriage. She confirmed that she knew he did not have the right to remain in the United Kingdom. She said that were he to be sent back to Afghanistan, he will feel it very badly because her life is with him. Were they both to return they would not be allowed to survive in Afghanistan. She said it would be very hard for them. She regarded her place as being with her husband and if he were to be returned to Afghanistan she would go with him.
39. Cross-examined by Mr Bilbe, the witness confirmed that when she met her husband his application for asylum had been refused.
40. The Tribunal adjourned briefly and following the adjournment advised the representatives that there were no credibility issues which concerned us and that we were satisfied that the appellant’s father had been a senior military officer.
41. Miss Hulse made her closing submissions to us. She reminded us that the Taliban are no longer in power in Afghanistan but they have not left the country. They are still there. Nothing has happened over the last two years to indicate that the Taliban have become less fundamental. The present regime is, she suggested, well reported to have control in Kabul but not throughout Afghanistan. The difficulty now is that there are very few Hindus left in Afghanistan because the majority fled. She submitted that the appellant would be at risk under Article 3, if not Article 2 on his return. He came to the United Kingdom as a refugee and, she submitted, there is ‘foreseeable risk’ to him in the future. There is no protection available and his appeal should be allowed.
42. Mr Bilbe pointed out that the appellant arrived in the United Kingdom on or some time prior to 8 June 2000 and the Secretary of State gave directions for his removal on 26 March 2001. He referred us to the Afghanistan Country Assessment of April 2003 and pointed out that at paragraphs 6.35 to 6.43 the report specifically deals with the situation of Sikhs and Hindus. That assessment suggests that there is religious tolerance shown towards both Sikhs and Hindus and that they have the right to practice their religion. The situation is described as being generally good for Hindus and there is no objective evidence which has been adduced on behalf of the appellant to contradict that assessment. In paragraphs 2 and 11 of counsel’s skeleton argument, reference is made to the fact that the appellant’s father was a high ranking administrative officer in the army under the communist government and that his grandfather was also a civil servant. Following the takeover by the Taliban, both the appellant and his family were persecuted, not simply for being Hindus, but also for being or being perceived as supporters of the former communist regime. However, Mr Bilbe suggested that there were no links between this appellant and the former communist regime. He himself was never involved in politics. He remained in Afghanistan for almost four years following the death of his father and had he been of any interest to the authorities he would have been detained at that time. He drew our attention to the assessment of the current situation for former members of the communist regime which had been overthrown in 1992. This was set out at paragraphs 6.133 to 6.138 of the Afghanistan Country Assessment. That the appellant was able to remain in Afghanistan for a long period following the death of his father, clearly demonstrated that he was of no interest. There is no objective evidence submitted on behalf of the appellant to the contrary. There is, in the appellant's bundle, a report by the BBC correspondent in Kabul but that deals with the situation of Sikhs, rather than Hindus. There is also a copy of a report published on 28 January 2003 by Religioscope. However, at the foot of that report it is explained that the article was originally published by the Institute for War Peace reporting. It does not appear to be dated.
43. The Tribunal invited Mr Bilbe to comment on the appellant's Article 8 rights. Counsel had not made any submissions in relation to them but the Tribunal indicated that Mr Bilbe may wish to address them since counsel might refer to them in her response. He submitted that there were no insurmountable obstacles to the appellant and his wife returning to Afghanistan and, given that she knew at the time she married him that he had no right to remain in the United Kingdom, there would be no breach of her Article 8 rights.
44. We asked Miss Hulse if she wished to respond. She asked us to note paragraphs 6.139 to 6.145 of the Country Information and Policy Unit Assessment which dealt with the situation of those affiliated to the former communist regime during the period 1996 to 22 December 2002. She asked us to note that family links and stay abroad may be relevant factors. She asked us also to note that the protection enjoyed by some apparently stemmed from their clan membership and links with influential ethnically and family based groupings. Given the dwindling numbers of Hindus in Afghanistan now, this appellant is unlikely to receive any protection on his return. He will be known as being the son of a Hindu former army officer and the grandson of a former civil servant. Both served under the former communist regime. This would place the appellant at additional risk. While the Taliban are no longer in control in Afghanistan, these people are still in the country. The property of refugees has been stolen from them and if the appellant were to return he would be at an additional risk. While a large number of people have benefited from the disappearance of the Hindu community, they are not likely to welcome them back. There is no security outside Kabul and, looking at the Amnesty International Report reproduced in her supplemental bundle, it is clear that the situation is still unsafe. There is no network of Hindu support available for this appellant and he has no contact with any family members who might remain in Afghanistan. He has no support there at all and there is nowhere that he, with a young wife, would find safe. She submitted that if there was a foreseeable risk then the appellant was entitled to the protection of the Refugee Convention.
45. We invited counsel to address us in respect of the appellant's Article 8 rights. She reminded us that the appellant had married at a time when his application for asylum had been refused but only because of his failure to attend the interview. He had an expectation that his appeal would be allowed. She said that ‘removal would be disproportionate because it is foreseeable that he could apply to return to the United Kingdom as the spouse of someone settled in the United Kingdom’.
46. We reserved our determination.
47. We should say at the outset that we found Mr Puri, the appellant's wife, Mr Talwar and Mr Kumar to be credible witnesses. We were particularly grateful to Mr Kumar for having taken the time and trouble to attend and give evidence before us.
48. We are satisfied that the appellant's full name is Ram Basant Talwar. We were supplied with a statement from Mr Sami Aziz, a coordinator from Afghan Association of London. For some reason, he believed that since that organisation had been registered with the OISC, he was not permitted to attend and give evidence before us. He is and of course, he could, be served with a witness summons. Mr Aziz explains that the appellant's national identity card has been shown to him for verification. It has been found to be genuine. He explained that the bearer’s surname is not normally included on a national identity card. We accept this explanation. We are satisfied that the appellant's full names are Ram Basant Talwar and note that he gave his full name to the registrar of births when he was married.
49. We are also satisfied that the appellant's father was a senior Afghani army officer. The evidence of Mr Kumar it was very impressive. He described having met the appellant's father in Afghanistan when he went to Jalalabad with his father who knew the appellant's father. Mr Kumar was told by his father that this gentleman (the appellant's father) was a senior army officer. Mr Kumar remembered that conversation because it was almost unique for a Hindu to be a soldier in the Afghani army. We are satisfied with the appellant's explanation for his father being described as an army clerk in his marriage certificate. We believe that was an error in interpretation. We accept the appellant's evidence that his father was taken by the Taliban and that sometime later his father’s body was returned.
50. We have to make an assessment as to whether, on return to Afghanistan today, this appellant will be at real risk of facing persecutory harm for a Convention reason or that his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms will be breached.
51. We have carefully considered the objective evidence before us. While counsel did not refer us to it, we have had regard to the bundles of objective evidence submitted on behalf of the appellant for a hearing before the Adjudicator. Unfortunately the Country Assessment is out of date (it was published in October 2002 and we have a more up-to-date Assessment in the form of the April 2003 edition) but we found the US State Department Report, published on 1 March 2003, to be of assistance. We noted that the government made significant progress in establishing democracy and good governance during its first full year of democratic government after prolonged civil war and political instability. The remnants of the Taliban and rogue warlords were said sometimes to have threatened, robbed, attacked and occasionally killed local villagers, political opponents and prisoners. During the year some efforts were made to bring justice ot those persons responsible for serious abuses and one Taliban commander was convicted of mass murder and sentenced to twenty years imprisonment. We noted that 85% of the population were described as being Sunni Muslim and the remaining 15% were Shi’a. There was said to be a small number of non-Muslim residents remaining in the country who were free to practice their faith. The April 2003 CIPU Report reported that Afghanistan’s Deputy Minister of Transport, during a visit to India in May 2002, said that the interim administration had decided to grant protection to Afghan Sikhs and Hindus who fled from the country, most of whom had migrated to Pakistan or India. In a June 2002 report, there were estimated to be 30,000 Afghan Hindus and Sikhs who were said to have become united in adversity. They share the same temples as well as many religious ceremonies. In October 2002 the US State Department estimated that the number of non-Muslims, including Sikhs and Hindus, were only in the hundreds. Four Hindu and Sikh delegates attended the Loya Jerga in June 2002. They reported that there were no longer repressed and felt free to practice their religions. In September 2002 the UNHCR/Kabul and Cooperation Centre for Afghanistan confirmed that the situation for Hindus and Sikhs is generally good and that there is religious tolerance for these groups and they have the right to practice their religions.
52. The Religioscope article referred to by counsel, spoke of some Hindus and Sikhs seeking to return to Afghanistan, many being put off by the lack of housing and problems with education. It is clear that much work still has to be done be authorities in Afghanistan, as is highlighted by the Amnesty International Report. This describes as having interviewed several of the twenty-one rejected asylum seekers who were returned from the United Kingdom on the first flight in April 2003. They reported their return to be chaotic and said the returning authorities had paid insufficient attention to reintegration assistance and post-return monitoring.
53. We noted from the CIPU Report that in February 2002 UNHCR advised that certain groups or individuals could face serious problems on return and amongst these groups were identified persons associated or deemed to be associated with the communist regime overthrown in 1992. In May 2002 UNHCR confirmed that conditions were not safe for the return of former members of the Communist Central Committee and their families and members of the Communist Committee Structures at Province level. However, we noted that the United Nations Assistance Mission in Afghanistan and Oxfam in Afghanistan believed that there would be no problems for low profile former members of PDPA in returning to Afghanistan and Dacaar confirmed that the situation in May 2002 was unchanged from that under the Taliban, when there was hardly any persecution of those at a low level whilst higher profile members faced problems. In July 2002 a UNHCR report identified those at risk including high ranking members of the PDPA and this includes members of the Central Provincial Cities and District Committees of PDPA with their families and heads and high-ranking members of social organisations such as the Democratic Youth Organisation, the Democratic Women’s Organisation at the level of country province, city and districts.
54. Our consideration of the objective evidence before us leads us to conclude that, simply because the appellant's grandfather was a civil servant and his own father was a senior officer in the army under the communist regime, will not put the appellant at any risk. As Mr Bilbe pointed out, if he had managed to live without difficulty for almost four years after his father’s death under the Taliban, it cannot now be said that there is a serious risk to him now on account of the activities of his father and grandfather. Neither do we believe that there is any risk to the appellant upon return as a result of him being a Hindu. There is no credible evidence before us to substantiate the claim that they now face ill-treatment or persecutory harm in Afghanistan.
55. We noted from a CIPU Report that during 2002 more than 1.8 million refugees returned home assisted by UNHCR and the Afghan Ministry of Refugees and Repatriation. During 2003 UNHCR is planning to assist 1.2 million refugees and 300,000 internally displaced persons ot return to their homes. The Country Information report describes the situation in Kabul as having generally improved and news reports for June 2002 suggested the return of normal life to the city of Kabul with the reconstruction under way in many districts and new businesses opening.
56. We have concluded there is simply no credible evidence before us to support the contention that this appellant’s return will cause a breach of Article 2. We accept that the conditions to which the appellant will return in Afghanistan are not as favourable as those enjoyed by him in the United Kingdom, but find that there is no real risk that he will suffer ill-treatment or harm such as will engage either the 1951 United Nations Convention on the Status of Refugees or the appellant's rights under Article 3.
57. We now turn to the appellant's claim under Article 8. This was not pursued before us with any great vigour by counsel who only addressed us after we had prompted her.
58. Article 8 provides that:
(i) Everyone has the right to respect for his private and family life, his home and his correspondence.
(ii) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
59. As the Tribunal have said on numerous occasions previously, the correct approach to adopt is that used by the European Court and to analyse the claim, using a logical step by step approach. First, it must be asked whether there is an existent private or family life? Second, it needs to be established whether there will be an interference with that family or private life? Third, it needs to be decided whether that interference pursues a legitimate aim, and if it does, fourthly, whether it is in accordance with the law? Finally, it must be decided whether that such interference is proportionate?
60. We were impressed by the appellant's wife. She is clearly devoted to her husband. She indicated to us that were her husband to be returned to Afghanistan, she would go with him since she believes that it is her duty to stay with her husband. In answer to the first question, we find that the appellant does enjoy a family life with his wife in the United Kingdom who has indefinite leave to remain. According to the Home Office letter which he produced, dated 7 June 2002 (H.O. ref P397727), she was not granted indefinite leave to remain after having been recognised as a refugee. However, we find that the appellant's wife will return to Afghanistan with him. Given the objective evidence (which refers to shortages of food, water, shelter etc.) we accept that the conditions they would face in Afghanistan on their return would be grim indeed. However, we also take into account the fact that there is no obligation on the United Kingdom to respect the residence of choice of the couple had the fact that the marriage was entered into when both parties were fully aware of the precarious nature of the appellant's immigration status. We are satisfied that, notwithstanding conditions in Afghanistan, there are no insurmountable obstacles to his wife establish a family life there. The appellant's wife confirmed that she would accompany the appellant and accordingly, his removal would not be an interference with his right to family life.
61. For all these, we dismiss this appeal.
RICHARD CHALKLEY
VICE PRESIDENT
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing : 23 July 2003 and
25 September 2003 and
27 October 2003
Date Determination notified:
11 November 2003
Before:
Mr Richard Chalkley (Chairman)
Mr P Rogers, JP
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
Ms C. Hulse of counsel, instructed by HSK Solicitors, appeared on behalf of the appellant and Mr S. Bilbe, Senior Home Office Presenting Officers, appeared on behalf of the respondent.
DETERMINATION AND REASONS
1. The appellant is a citizen of Afghanistan who appeals, with leave of the Tribunal, against the determination of an Adjudicator (Mr F.R.C. Such) who in a determination promulgated on 15 January 2003 following a hearing at Taylor House on 20 December 2002, dismissed his appeal against the decision of the respondent taken on 26 March 2001 to direct his removal after refusing asylum.
2. There was no appearance by or on behalf of the appellant, nor indeed on behalf of the respondent, at the hearing before the Adjudicator who proceeded to determine the appeal in accordance with paragraph 33(2)(b) of the Immigration and Asylum Appeals (Procedure) Rules 2000.
3. The appellant had been represented by solicitors who lodged a notice of appeal by way of letter on 28 March 2001. They wrote on 22 November 2002 indicating that they no longer acted on behalf of the appellant and when the appeal came before the Adjudicator he noticed that the notice giving date place and time of the appeal had been given to the appellant who had failed to comply with directions which included completing and returning a form of ‘Notice of Reply’.
4. The grounds of appeal assert that the appellant's current solicitors had been instructed as long ago as 27 September 2001 but that because the appellant's previous solicitors had not notified the Immigration Appeal Authority that HSK, Solicitors, had now been instructed, they had only received notification of the hearing via the appellant on 19 December 2002. They indicated that the form of ‘Reply’ was posted to the Immigration Appellate Authority at the Arnhem Support Centre, Leicester on 19 December 2002. How they could possibly have thought that an Adjudicator sitting in London at 10.0 am the following morning would receive a copy of such reply is not explained.
5. The Tribunal took the view that in these circumstances the Adjudicator's determination could not be permitted to stand and, at an earlier hearing on 4 June 2002, granted leave for the appellant to give evidence in order that the Tribunal could determine his appeal.
6. Unfortunately Miss Hulse had not been fully instructed by the appellant's solicitors. She was not aware that at the hearing before us on 23 July the Tribunal were expecting to hear the appellant's asylum appeal. However, the appellant was present, as was an interpreter and the appellant's wife. After ascertaining that the documents which had been submitted on behalf on the appellant had not, apparently, been handed to counsel or submitted to the Home Office, we granted an adjournment in order that the representatives could be supplied with copies and have time to read the documents. We indicated that we would give them as much time as they would require and that they should notify our usher when they were ready to proceed. After the adjournment Miss Hulse was content to proceed with the hearing and fortunately that was not hampered by the failure of her instructing solicitors to give her full and accurate instructions.
7. The appellant was called to give evidence and we ensured that he and the interpreter both understood each other. He confirmed that his name was Ram Basant Talwar. He confirmed his address and that he had instructed his solicitors to prepare a witness statement. He was shown a copy of that statement by counsel and he identified his signature at the end of it. He confirmed that the contents were true and correct and that he wished to adopt the statement as his evidence-in-chief.
8. The Tribunal cautioned the appellant that he should only adopt the statement as part of his evidence if he was satisfied that it was true and accurate and he was happy with its contents. We explained to him that if later, when giving evidence, he contradicted some part of his statement, that may cause us to believe that he was not telling us the truth and in that event there was a possibility that he may damage his appeal. We asked him to satisfy himself that he was entirely happy with the contents of the statement. He told us that he was and that he wished to adopt it. He confirmed that it had been read back to him in his own language.
9. In answer to questions put to him by his counsel he confirmed that the name ‘Talwar’ was his family name. Counsel asked him to explain why, if Talwar was his family name, he had applied for asylum in the name ‘Ram Basant’ and subsequently given notice of appeal in that name. He said that when he went to see solicitors he produced an identity card which was in the name of Ram Basant and which did not bear his family name. His solicitors had therefore told him to use the name Ram Basant rather than his full name. He confirmed that when he was married he told the registrar his full and accurate name, Ram Basant Talwar, and that is the name which appears on his marriage certificate.
10. He confirmed that in his statement he explained that his father had been in the military in Afghanistan. This was both during and before the Communist Party regime of Dr Najeeb. His grandfather was a magistrate also, both during and before the Communist regime. His family had suffered under both the Mujahadeen and the Taliban regimes and he now fears return to Afghanistan because he is a Hindu. Hindus were discriminated against under the Taliban because the Taliban were Muslims. Counsel pointed out to him that the Taliban regime no longer existed in Afghanistan and he replied to the effect that the Taliban have not actually left Afghanistan and are all over the country.
11. Prior to the Mujahadeen, the government did not use to bother about people’s religion. After the Mujahadeen took power they said Hindus should either convert to Islam or leave the country.
12. People who were in power under the Mujahadeen regime were the same people who were in power under the Taliban. He did not believe that these people had left the country now. They are not in power but they are trying to gain control.
13. The appellant’s father was the leader of all “military arms” in the Khugseani area. He was persecuted because he was in control of weapons. People came to the family home asking where he had kept the weapons. He said that he had left them where they were but they accused him of selling arms and keeping the money. He was detained and a few days later his body was retuned to the family. They were not allowed to cremate it.
14. His father was attacked because army weapons could not be found and his father had been responsible for them.
15. The appellant confirmed that he had not been in contact with his family since the end of the Taliban regime.
16. Cross-examined on behalf of the respondent, the appellant confirmed that his body was returned to the family at the end of May 1996. The appellant was asked when his father was arrested and the appellant replied that it was in May 1996. His father’s body was returned to the family about two to three weeks after his father had been arrested.
17. Miss Hulse asked the appellant if he was sure that it was only a matter of two to three weeks. The appellant confirmed that it was.
18. The appellant was shown a copy of his statement of evidence form setting out the basis of his asylum claim, and referred to what he had said in an accompanying statement. The appellant confirmed that it was his signature at the end of the statement. When it was pointed out to the appellant that he had said that his father was arrested at the end of 1996 and was detained and imprisoned until March 1997 when he was executed in jail, the appellant said that his father had been arrested in 1996. The discrepancies were put to the appellant again and he was asked for his explanation. He remained silent. When he was pressed by the Tribunal to respond he said that he filled in the statement of evidence form with his solicitor and when he was called for interview he said his solicitor had failed to advise him. It was explained to the appellant that he had not answered the question and the discrepancy was again put to him. He again remained silent.
19. The Tribunal read to him what he had said about his father’s detention , arrest and the return of his father’s body and asked him if he could explain the discrepancy between what he had said in his statement and what he had told us in giving evidence. The appellant replied that his father was detained in 1996 and when his body was returned the family were prevented from cremating it. The Tribunal again asked the appellant if he could offer any explanation for the discrepancy between what he had said in his written statement accompanying his statement of evidence form and the evidence he had given to us today. He said he believed that this was because of the difference in the calendars used in Afghanistan and Europe.
20. Mr Hulse asked the appellant when his brother and sister were taken by the Taliban. He replied that it was on 20 December 2000. He confirmed that he had arrived in the United Kingdom on 4 June 2000. He then said that they were taken away again after he came to the United Kingdom. In his statement he had described the first occasion when his brother and sister were taken by the Taliban. They were beaten and asked about their father. Fellow Hindus made representations to the Taliban and secured his brother’s and sister’s release. They returned home and were again taken on 20 December 2000. Since then he has not received any news. The appellant added that his uncle and his brother had sold a shop to send the appellant abroad.
21. After the appellant arrived in the United Kingdom he was told by somebody here that they had seen the appellant's mother, sister and brother and they were all fine. This was in 2000.
22. The Tribunal explained that they had some questions on parts of the appellant's evidence on which they would like clarification. In response to questions put, the appellant explained that his father had been in the army since he was very small. He always served in the army in the same area and was a brigadier. The appellant confirmed that it was very high rank. He said that his father’s full names were Veshamber Bernet Talwar. He was asked if he could explain why the identity card which the appellant had produced showed his father’s names as Veshamber Bernat. He said that this was because his father’s full name had not been written on the identity card either.
23. The Tribunal referred the appellant to his statement when he described his father as a ‘commander in the army’. The appellant confirmed that his father was a senior regular army officer stationed in the area where they lived.
24. The Tribunal drew the appellant's attention to his marriage certificate which had been submitted on his behalf which described the appellant’s father’s ‘rank or profession’ as ‘army clerk’. The appellant said he could not explain this, he had had said that his father was an army officer.
25. The appellant confirmed that he had a relative in the United Kingdom, his cousin’s son. It was his cousin’s son who had been a witness at his wedding and whose name appeared on the appellant's marriage certificate.
26. Re-examined by Miss Hulse, the appellant explained that his father wore a uniform which had rank badges on it, but he did not serve in a fighting unit because Hindus were not required to fight, only Muslims were.
27. His cousin’s son does not have any contact with either his father or the appellant's mother.
28. The appellant confirmed that his wife did not know him when he lived in Afghanistan. She was, however, aware that he was an asylum seeker when they were married.
29. The appellant confirmed that he had asked both the Sikh and the Hindu community in the United Kingdom if they could find out any information about his brother, sister or mother but he had not contacted the Red Cross. He confirmed that his cousin’s son had lived in Kabul but he used to visit in the winter time. He last saw his cousin’s son in Afghanistan in 1996 after his father’s death. His cousin’s son had come to the United Kingdom before the appellant and is younger than the appellant. When he came to United Kingdom the appellant was living in Bolton. He had travelled to London to attend a Hindu temple where he met his cousin’s son.
30. Counsel confirmed that she had completed the appellant's evidence but invited the Tribunal to consider granting an adjournment in order that consideration could be given to calling the appellant's relative as a witness.
31. The Tribunal find that counsel had not been properly instructed by her solicitors and as a result not had the opportunity to consider whether it would be appropriate to call additional evidence. We granted leave and adjourned the proceedings until 12 August.
32. The determination to this point was dictated on 23 July 2003. At the hearing on 23 July 2003, the Tribunal were joined by Mr D.B. Bremner. He was not available to sit at the adjourned hearings and took no further part in discussions concerning this appeal.
33. The matter next came before the Tribunal on 25 September 2003, the hearing on the 12 August having been adjourned before that date, due to administrative reasons. We found ourselves in difficulty and were forced to adjourn the hearing until 22 October 2003 in order that an interpreter who spoke Pushtu and Farsi or Urdu or Punjabi could be booked.
34. At the hearing on 22 October 2003, the proceeding commenced with the Chairman reading aloud the Tribunal's record of proceedings. Both representatives agreed that it was a true and accurate record. Neither of them had any comments or amendments to make on it.
35. We confirmed with Mr Bilbe that he had the same documents before him as we did, including an additional bundle handed in by counsel at the hearing. We then heard evidence from Mr Shami Kumar Talwar. He has been granted four years exceptional leave to remain in the United Kingdom. He is related to the appellant. His father and the appellant are cousins. He confirmed that he was an Afghani citizen and is a Hindu. Before coming to the United Kingdom, he lived in Kabul. He knew the appellant's family who lived in Jalalabad. Prior to his arrival in the United Kingdom, the appellant and witness had met in the appellant's home in Jalalabad sometime towards the end of 1996. The witness went to the appellant's home following the kidnapping of the appellant's father by the Taliban. The witness and his family members went to the appellant's home to learn if there was any news of the appellant's father. Later, the witness heard that the appellant’s body had been returned. It was sometime in 1997 when the body was brought back to the appellant's family home. It was returned some two or three months after the kidnapping. The witness did not visit the appellant's family home again. The witness left Afghanistan some two years later during 1999. He left because he feared that the Taliban would kill him because he was a Hindu. The witness has no contact with his family and has no news of them. Mr Bilbe declined to ask any questions by way of cross-examination. In answer to questions put to the witness by the Tribunal, he said that he did not know what had happened to the appellant's mother, brother or sister. He knew that the appellant's father had been a soldier.
36. We next heard evidence from Ashuk Kumnar. He is the President of the Afghan Hindu Cultural Society and knows the appellant. He has known him since his father was a manager of a bank in Afghanistan. He remembered one occasion in about 1994 when he accompanied his father to Jalalabad and he met the appellant's father in a temple. The witness’s father had specifically commented to the witness that this man (meaning the appellant's father) was a Hindu who was in the army. The witness remembered this because it was almost unique for a Hindu to serve in the Afghani army. The witness was not cross-examined.
37. The appellant's father-in-law, Mr Ram Bitta Puri, was called to give evidence. He confirmed his relationship with the appellant and confirmed that he was a Hindu and Afghani citizen from Kabul. The witness left Afghanistan because he was a refugee. He confirmed that he still owned property in Afghanistan. Hindu properties were taken over by the Mujahadeen. They were not purchased. Hindus were forced to place their thumbprint on a document illegally transferring ownership of the property. He was asked by counsel if he knew the situation in Afghanistan for Hindus. He said that there had been no change and if anything the situation is deteriorating. He confirmed that he had no contact with anyone in Afghanistan.
38. We lastly heard evidence from the appellant's wife, Soneta Talwar. She confirmed that she and the appellant were married on 20 November 2002. She has indefinite leave to remain in the United Kingdom. She met her husband in June 2002 and had not known him before that date. Theirs was an arranged marriage. She confirmed that she knew he did not have the right to remain in the United Kingdom. She said that were he to be sent back to Afghanistan, he will feel it very badly because her life is with him. Were they both to return they would not be allowed to survive in Afghanistan. She said it would be very hard for them. She regarded her place as being with her husband and if he were to be returned to Afghanistan she would go with him.
39. Cross-examined by Mr Bilbe, the witness confirmed that when she met her husband his application for asylum had been refused.
40. The Tribunal adjourned briefly and following the adjournment advised the representatives that there were no credibility issues which concerned us and that we were satisfied that the appellant’s father had been a senior military officer.
41. Miss Hulse made her closing submissions to us. She reminded us that the Taliban are no longer in power in Afghanistan but they have not left the country. They are still there. Nothing has happened over the last two years to indicate that the Taliban have become less fundamental. The present regime is, she suggested, well reported to have control in Kabul but not throughout Afghanistan. The difficulty now is that there are very few Hindus left in Afghanistan because the majority fled. She submitted that the appellant would be at risk under Article 3, if not Article 2 on his return. He came to the United Kingdom as a refugee and, she submitted, there is ‘foreseeable risk’ to him in the future. There is no protection available and his appeal should be allowed.
42. Mr Bilbe pointed out that the appellant arrived in the United Kingdom on or some time prior to 8 June 2000 and the Secretary of State gave directions for his removal on 26 March 2001. He referred us to the Afghanistan Country Assessment of April 2003 and pointed out that at paragraphs 6.35 to 6.43 the report specifically deals with the situation of Sikhs and Hindus. That assessment suggests that there is religious tolerance shown towards both Sikhs and Hindus and that they have the right to practice their religion. The situation is described as being generally good for Hindus and there is no objective evidence which has been adduced on behalf of the appellant to contradict that assessment. In paragraphs 2 and 11 of counsel’s skeleton argument, reference is made to the fact that the appellant’s father was a high ranking administrative officer in the army under the communist government and that his grandfather was also a civil servant. Following the takeover by the Taliban, both the appellant and his family were persecuted, not simply for being Hindus, but also for being or being perceived as supporters of the former communist regime. However, Mr Bilbe suggested that there were no links between this appellant and the former communist regime. He himself was never involved in politics. He remained in Afghanistan for almost four years following the death of his father and had he been of any interest to the authorities he would have been detained at that time. He drew our attention to the assessment of the current situation for former members of the communist regime which had been overthrown in 1992. This was set out at paragraphs 6.133 to 6.138 of the Afghanistan Country Assessment. That the appellant was able to remain in Afghanistan for a long period following the death of his father, clearly demonstrated that he was of no interest. There is no objective evidence submitted on behalf of the appellant to the contrary. There is, in the appellant's bundle, a report by the BBC correspondent in Kabul but that deals with the situation of Sikhs, rather than Hindus. There is also a copy of a report published on 28 January 2003 by Religioscope. However, at the foot of that report it is explained that the article was originally published by the Institute for War Peace reporting. It does not appear to be dated.
43. The Tribunal invited Mr Bilbe to comment on the appellant's Article 8 rights. Counsel had not made any submissions in relation to them but the Tribunal indicated that Mr Bilbe may wish to address them since counsel might refer to them in her response. He submitted that there were no insurmountable obstacles to the appellant and his wife returning to Afghanistan and, given that she knew at the time she married him that he had no right to remain in the United Kingdom, there would be no breach of her Article 8 rights.
44. We asked Miss Hulse if she wished to respond. She asked us to note paragraphs 6.139 to 6.145 of the Country Information and Policy Unit Assessment which dealt with the situation of those affiliated to the former communist regime during the period 1996 to 22 December 2002. She asked us to note that family links and stay abroad may be relevant factors. She asked us also to note that the protection enjoyed by some apparently stemmed from their clan membership and links with influential ethnically and family based groupings. Given the dwindling numbers of Hindus in Afghanistan now, this appellant is unlikely to receive any protection on his return. He will be known as being the son of a Hindu former army officer and the grandson of a former civil servant. Both served under the former communist regime. This would place the appellant at additional risk. While the Taliban are no longer in control in Afghanistan, these people are still in the country. The property of refugees has been stolen from them and if the appellant were to return he would be at an additional risk. While a large number of people have benefited from the disappearance of the Hindu community, they are not likely to welcome them back. There is no security outside Kabul and, looking at the Amnesty International Report reproduced in her supplemental bundle, it is clear that the situation is still unsafe. There is no network of Hindu support available for this appellant and he has no contact with any family members who might remain in Afghanistan. He has no support there at all and there is nowhere that he, with a young wife, would find safe. She submitted that if there was a foreseeable risk then the appellant was entitled to the protection of the Refugee Convention.
45. We invited counsel to address us in respect of the appellant's Article 8 rights. She reminded us that the appellant had married at a time when his application for asylum had been refused but only because of his failure to attend the interview. He had an expectation that his appeal would be allowed. She said that ‘removal would be disproportionate because it is foreseeable that he could apply to return to the United Kingdom as the spouse of someone settled in the United Kingdom’.
46. We reserved our determination.
47. We should say at the outset that we found Mr Puri, the appellant's wife, Mr Talwar and Mr Kumar to be credible witnesses. We were particularly grateful to Mr Kumar for having taken the time and trouble to attend and give evidence before us.
48. We are satisfied that the appellant's full name is Ram Basant Talwar. We were supplied with a statement from Mr Sami Aziz, a coordinator from Afghan Association of London. For some reason, he believed that since that organisation had been registered with the OISC, he was not permitted to attend and give evidence before us. He is and of course, he could, be served with a witness summons. Mr Aziz explains that the appellant's national identity card has been shown to him for verification. It has been found to be genuine. He explained that the bearer’s surname is not normally included on a national identity card. We accept this explanation. We are satisfied that the appellant's full names are Ram Basant Talwar and note that he gave his full name to the registrar of births when he was married.
49. We are also satisfied that the appellant's father was a senior Afghani army officer. The evidence of Mr Kumar it was very impressive. He described having met the appellant's father in Afghanistan when he went to Jalalabad with his father who knew the appellant's father. Mr Kumar was told by his father that this gentleman (the appellant's father) was a senior army officer. Mr Kumar remembered that conversation because it was almost unique for a Hindu to be a soldier in the Afghani army. We are satisfied with the appellant's explanation for his father being described as an army clerk in his marriage certificate. We believe that was an error in interpretation. We accept the appellant's evidence that his father was taken by the Taliban and that sometime later his father’s body was returned.
50. We have to make an assessment as to whether, on return to Afghanistan today, this appellant will be at real risk of facing persecutory harm for a Convention reason or that his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms will be breached.
51. We have carefully considered the objective evidence before us. While counsel did not refer us to it, we have had regard to the bundles of objective evidence submitted on behalf of the appellant for a hearing before the Adjudicator. Unfortunately the Country Assessment is out of date (it was published in October 2002 and we have a more up-to-date Assessment in the form of the April 2003 edition) but we found the US State Department Report, published on 1 March 2003, to be of assistance. We noted that the government made significant progress in establishing democracy and good governance during its first full year of democratic government after prolonged civil war and political instability. The remnants of the Taliban and rogue warlords were said sometimes to have threatened, robbed, attacked and occasionally killed local villagers, political opponents and prisoners. During the year some efforts were made to bring justice ot those persons responsible for serious abuses and one Taliban commander was convicted of mass murder and sentenced to twenty years imprisonment. We noted that 85% of the population were described as being Sunni Muslim and the remaining 15% were Shi’a. There was said to be a small number of non-Muslim residents remaining in the country who were free to practice their faith. The April 2003 CIPU Report reported that Afghanistan’s Deputy Minister of Transport, during a visit to India in May 2002, said that the interim administration had decided to grant protection to Afghan Sikhs and Hindus who fled from the country, most of whom had migrated to Pakistan or India. In a June 2002 report, there were estimated to be 30,000 Afghan Hindus and Sikhs who were said to have become united in adversity. They share the same temples as well as many religious ceremonies. In October 2002 the US State Department estimated that the number of non-Muslims, including Sikhs and Hindus, were only in the hundreds. Four Hindu and Sikh delegates attended the Loya Jerga in June 2002. They reported that there were no longer repressed and felt free to practice their religions. In September 2002 the UNHCR/Kabul and Cooperation Centre for Afghanistan confirmed that the situation for Hindus and Sikhs is generally good and that there is religious tolerance for these groups and they have the right to practice their religions.
52. The Religioscope article referred to by counsel, spoke of some Hindus and Sikhs seeking to return to Afghanistan, many being put off by the lack of housing and problems with education. It is clear that much work still has to be done be authorities in Afghanistan, as is highlighted by the Amnesty International Report. This describes as having interviewed several of the twenty-one rejected asylum seekers who were returned from the United Kingdom on the first flight in April 2003. They reported their return to be chaotic and said the returning authorities had paid insufficient attention to reintegration assistance and post-return monitoring.
53. We noted from the CIPU Report that in February 2002 UNHCR advised that certain groups or individuals could face serious problems on return and amongst these groups were identified persons associated or deemed to be associated with the communist regime overthrown in 1992. In May 2002 UNHCR confirmed that conditions were not safe for the return of former members of the Communist Central Committee and their families and members of the Communist Committee Structures at Province level. However, we noted that the United Nations Assistance Mission in Afghanistan and Oxfam in Afghanistan believed that there would be no problems for low profile former members of PDPA in returning to Afghanistan and Dacaar confirmed that the situation in May 2002 was unchanged from that under the Taliban, when there was hardly any persecution of those at a low level whilst higher profile members faced problems. In July 2002 a UNHCR report identified those at risk including high ranking members of the PDPA and this includes members of the Central Provincial Cities and District Committees of PDPA with their families and heads and high-ranking members of social organisations such as the Democratic Youth Organisation, the Democratic Women’s Organisation at the level of country province, city and districts.
54. Our consideration of the objective evidence before us leads us to conclude that, simply because the appellant's grandfather was a civil servant and his own father was a senior officer in the army under the communist regime, will not put the appellant at any risk. As Mr Bilbe pointed out, if he had managed to live without difficulty for almost four years after his father’s death under the Taliban, it cannot now be said that there is a serious risk to him now on account of the activities of his father and grandfather. Neither do we believe that there is any risk to the appellant upon return as a result of him being a Hindu. There is no credible evidence before us to substantiate the claim that they now face ill-treatment or persecutory harm in Afghanistan.
55. We noted from a CIPU Report that during 2002 more than 1.8 million refugees returned home assisted by UNHCR and the Afghan Ministry of Refugees and Repatriation. During 2003 UNHCR is planning to assist 1.2 million refugees and 300,000 internally displaced persons ot return to their homes. The Country Information report describes the situation in Kabul as having generally improved and news reports for June 2002 suggested the return of normal life to the city of Kabul with the reconstruction under way in many districts and new businesses opening.
56. We have concluded there is simply no credible evidence before us to support the contention that this appellant’s return will cause a breach of Article 2. We accept that the conditions to which the appellant will return in Afghanistan are not as favourable as those enjoyed by him in the United Kingdom, but find that there is no real risk that he will suffer ill-treatment or harm such as will engage either the 1951 United Nations Convention on the Status of Refugees or the appellant's rights under Article 3.
57. We now turn to the appellant's claim under Article 8. This was not pursued before us with any great vigour by counsel who only addressed us after we had prompted her.
58. Article 8 provides that:
(i) Everyone has the right to respect for his private and family life, his home and his correspondence.
(ii) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
59. As the Tribunal have said on numerous occasions previously, the correct approach to adopt is that used by the European Court and to analyse the claim, using a logical step by step approach. First, it must be asked whether there is an existent private or family life? Second, it needs to be established whether there will be an interference with that family or private life? Third, it needs to be decided whether that interference pursues a legitimate aim, and if it does, fourthly, whether it is in accordance with the law? Finally, it must be decided whether that such interference is proportionate?
60. We were impressed by the appellant's wife. She is clearly devoted to her husband. She indicated to us that were her husband to be returned to Afghanistan, she would go with him since she believes that it is her duty to stay with her husband. In answer to the first question, we find that the appellant does enjoy a family life with his wife in the United Kingdom who has indefinite leave to remain. According to the Home Office letter which he produced, dated 7 June 2002 (H.O. ref P397727), she was not granted indefinite leave to remain after having been recognised as a refugee. However, we find that the appellant's wife will return to Afghanistan with him. Given the objective evidence (which refers to shortages of food, water, shelter etc.) we accept that the conditions they would face in Afghanistan on their return would be grim indeed. However, we also take into account the fact that there is no obligation on the United Kingdom to respect the residence of choice of the couple had the fact that the marriage was entered into when both parties were fully aware of the precarious nature of the appellant's immigration status. We are satisfied that, notwithstanding conditions in Afghanistan, there are no insurmountable obstacles to his wife establish a family life there. The appellant's wife confirmed that she would accompany the appellant and accordingly, his removal would not be an interference with his right to family life.
61. For all these, we dismiss this appeal.
RICHARD CHALKLEY
VICE PRESIDENT