The decision

MT (May 2004 ECRE - risk categories too widely drawn)
Afghanistan [2004] UKIAT 00250


Date of Hearing : 5 July 2004
Date Determination notified:
10 September 2004


Dr H H Storey (Vice President)
Mr M G Taylor, CBE



Secretary of State for the Home Department

For the appellant : Mr R. André, Counsel, instructed by White Ryland
For the respondent : Miss T. Hart, Home Office Presenting Officer


1. The appellant is a national of Afghanistan. He appeals to the Tribunal against a determination of Adjudicator, Ms J. Balloch, dismissing his appeal against a decision giving directions for removal following refusal to grant asylum.

2. The basis of the appellant's claim was that he was a Tajik who lived in Bakhi in the north of Afghanistan. In early 2001 during the period when the town was under the rule of the Taliban he was approached secretly by a Commander Halibullah of the Jamiat-i-Islam who wanted him to hide weapons in the appellant's home. The Commander knew that the appellant hated the Taliban for having killed his father. However, the appellant refused because he did not want to be involved with the military. Subsequently the appellant was taken against his will to fight for the Taliban. In the event he only had to do menial tasks and was able after 2 months to escape and return home in November 2001 when the Taliban was defeated. Shortly after the Commander came to his house and accused the appellant of being a traitor for having fought for the Taliban. He shouted that the appellant was a traitor and he was going to kill him. The appellant was in hiding in the back of the house. He escaped and went to hide at his uncle’s house in another part of town. His mother told him that the Commander and his men came again on other occasions looking for him. The appellant stayed in hiding at his uncle’s house and left Afghanistan on 15 April 2002. There was also an arrest warrant against him. The Commander was a powerful man and was part of the transitional government. If he was stopped in Kabul and questioned, it would be known that he came from the north and checks could be made with the authorities.

3. The Adjudicator accepted that the appellant was a Tajik from Bakhi whose father had been killed by the Taliban; that he along with many other young men was forced to go with the Taliban to fight for them; and that he may have been asked by the Commander to hide weapons and the Commander may have been angry with the appellant for his failure to do so.

4. However, beyond this, she found his account not credible. In particular she did not accept the appellant had been of continuing interest to the Commander or the authorities, nor did she accept that an arrest warrant had been issued as a result of the Commander’s wish for revenge.

5. The main points raised in the grounds of appeal and expanded upon by Mr Andre were that the Adjudicator had failed to recognise that in the appellant's home area he would have remained a target for the Commander; that he failed to take proper account of the fact that the Commander had influence in Kabul and was indeed an important part of the Interim Administration; and that he had given insufficient weight to materials indicating that Kabul was unsafe. Mr Andre also relied on a May 2004 ECRE report and very recent evidence as to the situation in Afghanistan brought to light at the recent NATO summit in Istanbul in late June 2004. It was Mr Andre’s submission that the appellant fell into more than one continuing risk category as identified by ECRE and others.

6. Miss Hart for the respondent asked us to uphold the appeal on the basis that the Adjudicator had reached sustainable conclusions.

7. In relation to risk in the appellant's home area, we consider that the Adjudicator was quite entitled to conclude that even before the appellant left there, the Commander no longer had a continuing adverse interest in him. It was entirely open to the Adjudicator to find that, if the Commander were set on vengeance against the appellant as claimed, he would not have delayed coming to his house until April 2002. On the appellant's own account he had returned to his home area in November 2001. The appellant dated his refusal to hide weapons as being in early 2001. We also consider sustainable the Adjudicator's assessment that the Commander would not in fact have perceived the appellant as a traitor. Not only did he know that the appellant’s father had been killed by the Taliban; it was also common knowledge that many young men (like the appellant) had been forced to fight for the Taliban against their will.

8. There was produced before the Adjudicator an arrest warrant issued against the appellant said to have been delivered to the appellant's home some three months after it was issued. Mr André in his submissions did not seek to rely on this document. In our view he was right not to do so. The Adjudicator gave sound reasons for doubting its authenticity.

9. Even had we concluded that the Adjudicator was wrong to conclude that the appellant had not shown a real risk of serious harm in his home area, we would still not have allowed the appeal. We are fully prepared to accept that Commander Hallibullah is a warlord who now forms part of the Interim Administration. However, we do not consider that the objective evidence demonstrates that a Commander in a Northern Province of Afghanistan is able to exercise influence within the capital so as to place all those with whom he has a score to settle on wanted lists. Even on the appellant's own account, all he had done was refuse to conceal weapons at a point in time when the Commander was a warlord engaged in armed conflict with the Taliban. The appellant plainly did not pose any kind of security threat to the Commander. If the appellant chose not to return to his home area, he would be able to live in Kabul without any real risk of being identified as someone of adverse interest to Commander Hallibullah.

10. So far as what would happen to the appellant on return to Kabul, therefore, we consider that the Adjudicator dealt adequately with the relevant risk factors.

11. It may be that at some point the authorities in Kabul might question the appellant about his past and learn, therefore, that he had been forced to fight for the Taliban. However, if they discover this much, they will also discover that, like many other young man in his home area, he was forced to fight for the Taliban and indeed that this organisation was responsible for the death of his father. On the appellant's own account he had never in any event had to engage in actual combat: his duties were confined to menial tasks such as cooking and cleaning. Even had the appellant been engaged in combat, his role in the Taliban would only have been low-level. The objective evidence does not indicate that the authorities in Afghanistan have an adverse interest in former low-level members of the Taliban.

12. The Adjudicator found by reference to the evidence from the International Crisis Group (ICG) reported in the CIPU Report that the appellant would not be at risk as a Tajik in Kabul. We agree. The objective evidence does not establish that Tajiks face any serious threats in Kabul by virtue of their ethnic identity.

13. Mr André asked us to look afresh at the general security situation in Kabul as analysed in the recent ECRE document and as described in media coverage of the recent NATO summit in Istanbul where President Kharzai gave an important address.

14. However, insofar as the ECRE document is concerned we do not consider that it accurately reflects the position as set out in CIPU and the major country reports. Indeed it seems to us that several of their categories are far too widely drawn, e.g. “[f]ormer members of the Taliban”. This quite unjustifiably fails to differentiate between low level and higher-level former members of the Taliban. We prefer the far more widely sourced assessment set out in the April 2004 Afghanistan Country Report at paragraphs 6.314 – 6.321. The appellant in this case is simply a young man of Tajik ethnicity whose father had been killed by the Taliban and who himself had been forced to perform menial task for them over a period of several months.

15. Insofar as it is asserted that these recent materials address the general security situation in Kabul, we are not persuaded that they demonstrate that returnees in general face a real risk of serious harm. The Adjudicator based his assessment on a careful appraisal of the CIPU Report, which encapsulated UNHCR and ICG documents. We do not see that the latest documents cast a significantly different light. Indeed, if previous evidence showed that ISAF has not had sufficient numbers of troops or enough military equipment, the June 2004 NATO Summit saw a commitment from NATO members to increasing its troops level (currently 6,500) and equipment. To the extent that threats from remnants of the Taliban remain of concern, reports on the NATO Summit reveal that the US has recently doubled the number of troops (from 10,000 to 20,000) operating under Operation Enduring Freedom.

16. As regards the general social and economic situation in Kabul, it is clear that there are ongoing hardships, no doubt added to by the large number of refugees who have returned to live in Kabul since late 2001. However the new materials fall well short of establishing that for a person such as the appellant return would expose him to a real risk of destitution or other forms of serious harm.

17. For the above reasons this appeal is dismissed.