The decision


Heard: 17.09.2004
Signed: 24.09.2004
Sent out: 13 October 2004

MD (Internal flight- Point of Return) Afghanistan [2004] UKIAT 00296


John Freeman (a vice-president)
Mr P Bompas

Secretary of State for the Home Department,



Miss R Brown for the Secretary of State
Mr S Jaisri (counsel instructed by Aston Clark) for the claimant


This is a Home Office appeal from a decision of an adjudicator (Ms A Dhanji), sitting at Hatton Cross on 1 July 2003, allowing an asylum and human rights appeal by a citizen of Afghanistan. Permission to appeal was given on the basis of grounds which challenged (at §§ 3-6) the adjudicator’s conclusion that it would be ‘unduly harsh’ to expect the claimant, a Pashtun, (or, in English usage, Pathan) from Samondgam province in northern Afghanistan, to return to Kabul. He claimed to fear the forces, in his home area, of one Commander Mohamadi: while it was not suggested that this “warlord” had any particular influence in Kabul, and the adjudicator accepted (at § 6.17) that Pashtuns formed the majority of the population in that part of the country, she went on to say this:
Given what the objective material indicates about the difficulties encountered by those seeking to relocate within Afghanistan, as summarised above, and given also the destruction, both economically and physically in Afghanistan after 23 years of war, I accept that it would be unduly harsh for the appellant to relocate to another part of the country.
2. Permission was given in the following terms:
2. The grounds of appeal focus on the adjudicator’s finding that Pashtuns from northern Afghanistan who have attempted to settle in Pashtun villages and other areas of the country have not been accepted by the local communities. It is arguable that the adjudicator was in error in paragraph 6.15 of the determination when she decided that the objective material did not indicate that all Pashtuns face persecution, it demonstrated that many do and, taken together with his brother’s history, the claimant was at particular risk.
We have set all this out at such length because Mr Jaisri sought to argue that the Home Office were precluded by the terms of the grant of permission from challenging the adjudicator’s conclusions on internal flight. As the vice-president carefully set out the claimant’s case on this point at § 1 of the grant, and the Home Office’s focus on it in the grounds in the first sentence of § 2, it could not be clearer that he was aware that this was what the appeal was essentially about.
3. We have no doubt that “… Pashtun villages and other areas of the country …” represented a following of the adjudicator’s mis-type for “in other areas …” at § 6.9 of her decision, where she is specifically reviewing the evidence on the internal flight alternative. At all events, the Home Office grounds of appeal did not challenge the adjudicator’s findings on the claimant’s (or his brother’s) personal history in his home area, but dealt almost entirely with internal flight; and this issue was bound to be at the forefront of the case, when all returns are to Kabul. We regard it as quite unarguable that the vice-president meant to exclude it from his grant of permission, or that the terms in which he gave it in fact did so.
4. The next hurdle the Home Office have to clear is CA [2004] EWCA 1165, which makes it clear that, contrary to what some people had thought, the requirement in the present (2002) Act for there to be a point of law1 involved for an appeal to be allowed is not merely a threshhold requirement at the permission stage, but a substantive one, relating to the decision at hearing. The definition of such a point has recently been somewhat extended in E & R [2003] EWCA Civ 49.
5. The possible point of law on the challenge to the adjudicator’s internal flight findings in this case are two:
a) the adjudicator did not specifically consider the “internal flight alternative” to Kabul, the point of any forced return to Afghanistan from this country; and
b) she did not follow the general approach of the Tribunal to questions of internal flight to Afghanistan.
In our view it is pointless to consider the internal flight alternative in this case of someone presently outside his country of origin, without taking a view on whether he would be at real risk at the point to return to it. If yes, then a claimant’s appeal falls to be allowed with no more ado; if no, then one goes on to consider whether it would be unduly harsh, in terms of Robinson [1997] Imm AR 568 as explained in AE & FE [2003] EWCA Civ 1032, for him to have to return either there, or anywhere else in the country where he would be at no real risk. If this is right, it is not necessary for us to consider the general jurisprudence of the Tribunal on internal flight to Afghanistan; nor how far failure to follow it might raise a point of law.
6. Mr Jaisri tried to persuade us that the adjudicator had found at § 6.17 that it would either be really risky, or unduly harsh for the claimant to have to return to Kabul. As Miss Brown pointed out, there is no finding by the adjudicator, or evidence before us, that “Commander Mohamadi” has any power or influence in Kabul; and there is no considerable evidence (at § 6.290-4 of the CIPU for April 2004) about the return and rehousing of large numbers of refugees from abroad to the capital. It follows that the adjudicator’s decision can only be justified on the basis of the material she deals with at § 6.9 (and somewhat elliptically refers back to at §6.17) about general difficulties of Pashtuns from northern Afghanistan in trying to resettle elsewhere.
7. This was equally what Mr Jaisri relied on in seeking to support the adjudicator’s decision. There was a Danish government report before her, which was not before us, because neither side had filed or served it in accordance with the standard directions. We should have preferred to see it, in case it went beyond what the adjudicator says about this at § 6.9, which might have helped Mr Jaisri; and Miss Brown was willing to provide us and him with photocopies of the one she had.
8. Mr Jaisri however resolutely objected to that being done, and cited Tribunal Practice Direction no.4 in support of his position. Whatever his motives for that, and whether or not it was to his client’s advantage (of which he had to be the best judge), he was entitled in our view to insist on that objection, and he had to confine ourselves to the adjudicator’s summary of the report, the relevant part of which follows:
UNHCR Kabul have, however advised that the availability of the personal and social networks is vital for a person’s ability to live I a given area. The Danish Report says that the support of the government is required for the settlement of an ethnic group in another area and notes that the crucial issue in connection with resettlement is access to resources. UNHCR Kabul is stated to have said that Pashtuns from northern Afghanistan who have attempted in Pashtun villages and other areas of the country have not been accepted by the local communities.
9. Mr Jaisri sought to argue that the fact that these comments emanated from UNHCR’s Kabul office meant that they must apply to the city. No doubt that office is responsible for all that part of Afghanistan; but in any case, we see nothing in the passage quoted, with its references to “villages”, and “local communities” to show that it could possibly have referred to the capital, no doubt more cosmopolitan (in Afghan terms) than before since the influx of returning
refugees referred to by Miss Brown. In our view there is nothing to show that there was any material before the adjudicator, and there is nothing further before us, to show that this claimant was either at any real risk to return to Kabul, or that it would be unduly harsh to expect him to go there.
Home Office appeal 

John Freeman
(approved for electronic distribution)