The decision

ar Appeal No. HX41856-2001 RS (Relocation-Maoists) Nepal CG [2002] UKIAT 05407


Date of Hearing : 3 October 2002
Date Determination notified:
........25 November 2002....................


Mr M W Rapinet (Chairman)
Mr J A O’Brien Quinn, QC
Mrs E Morton



Secretary of State for the Home Department

For the appellant : Miss C. Ganning, counsel, Halliday Reeves solicitors
For the respondent : Mr J. Morris, Home Office Presenting Officer


1. The appellant is a citizen of Nepal who appeals by leave of the Tribunal against the determination of an Adjudicator, Mr D.G. Zucker, dismissing his appeal against the Secretary of State's refusal to grant asylum or leave to remain under the Human Rights Act and refusal to grant leave to enter. The grounds of appeal are in the bundle before us.

2. The appellant arrived in this country in December 1999 on a forged passport and claimed asylum. The basis of the appellant's claim is set out in paragraphs 5 to 11 of the determination. The Adjudicator has accepted the basis as being credible but finds that the appellant, whose claim is based on persecution at the hands of the Maoists in Nepal, did not seek state protection and that the Maoists were not agents of persecution because the state provided protection to the necessary Horvath standard. We would refer to paragraph 23 of the determination which make such a finding. We also refer to paragraph 25.

3. The basis of the appeal is that the Adjudicator's findings that there was protection to the Horvath standard are flawed.

4. Miss Ganning in her submissions maintained that the appellant had been persecuted by the Maoists prior to his abduction and detention for a period of two years. She submitted that on the basis of the objective evidence in her bundle and which was before the Adjudicator it was impossible for the police to provide protection for this appellant. She points out that in paragraph 22 the Adjudicator finds that it ‘is clearly demonstrated in the objective evidence a willingness on the part of the authorities to tackle the Maoists there would also seem to be in ability to deal with the problem.’ She submits that it is because of this inability that there is not adequate protection to the Horvath standard. She drew our attention to a number of documents in the bundle before us, being largely Amnesty International reports and newspapers reports and other press reports indicating that the strength and power of the Maoists in Nepal is of such a nature as to render the police and army virtually ineffective in providing protection for the citizens of that country. She points to the enormous number of people who are killed by the Maoists, the manner in which certain parts of the state have been reduced to paralysis by the activities of the Maoists and to the failure of the police and the army to prevent such a situation arising or developing and worsening. She points out that the country is one of extreme poverty and that the government lacks either the funds or the human resources to deal with the situation. We asked her whether in her view the country had reached a state of anarchy comparable to that, for example, pertaining in Colombia where whole stretches of the country are under the control of various bandits and the writ of the government does not run. Miss Ganning submitted that this was the situation.

5. We drew Miss Ganning’s attention to a report which has been put before us by the Home Office in a number of Nepalese cases which we have heard very recently. This a report from the Ministry of Interior Affairs of Belgium who sent a mission to Nepal to establish precisely what the position in that country was, bearing in mind the not inconsiderable number of asylum seekers who appear to be descending upon Belgium. The Home Office had not in fact submitted this document in this case. We indicated sections of that report which would show that there are certain areas of that country which are particularly stricken by Maoists terrorists attacks and there are areas which are deemed to be safe, notably Kathmandu where the appellant's family now seems to be living. As Miss Ganning was unaware of this document, we arranged for her to have a copy at the conclusion of the hearing and gave her a further seven days within which to make written submissions to us relative to that document. Mr Morris was informed that if there were any matters in the submissions that Miss Ganning may make we considered to be relative to our determination we would submit her submissions to him and invite him to make further written submissions to us.

6. We indicated to Miss Ganning that in our view, based partly upon the Belgium report, if the appellant feared for his safety in his own home area, it would appear that there is no reason why he should not seek internal flight in Kathmandu where his family appears to be living. We invited Miss Ganning to make submissions as to whether or not it would be unduly harsh for the appellant to move to that area.

7. She informed us that the appellant had been in this country for some time, is now in the process of divorcing his Nepalese wife and intends to marry a UK resident. We expressed the view that this was not an indication that it would not be unduly harsh for the appellant to move to Kathmandu although the circumstances might give rise to an Article 8 claim, though there is none before us at present. We pointed out to Miss Ganning that the appellant is a young man i.e. thirty three years of age, a jeweller by trade and there seems to us no reason why he should not carry on his trade as a jeweller in Kathmandu where in fact there might well be more demand for his skills than in the rural area from whence he comes. Miss Ganning did not in fact make any serious submissions with regard to the question of whether or not it would be unduly harsh for the appellant to move to that area.

8. Mr Morris in his submissions maintained that the appellant had not tested the ability of the state to give him protection. When his house had been burned down by the Maoists and he had been abducted, his family made no attempt whatsoever to draw the matter to the attention of the police or the army. Mr Morris submitted that the Adjudicator's findings with regard to the adequacy of protection were perfectly valid and that in any event an alternative of internal flight to Kathmandu was available.

9. In paragraph 23 of the determination, and also to some extent in paragraph 25, the Adjudicator carefully considers the question of sufficiency of protection in the context of the guidelines set out in Horvath. He expresses some doubt as to whether there is an ability on the part of the state to provide the necessary protection, but then points out that a considerable number of suspected Maoists have been arrested by the police and that in his view the objective evidence clearly indicates not only a willingness on the part of the government to protect its citizens but the ability to do so as is manifest by the military exercises and arrests and incarceration of terrorists shown in the objective evidence. We agree with the Adjudicator's findings. We have carefully considered the documents to which Miss Ganning has drawn our attention in her bundle. These quite clearly show that the Maoist terrorists are a ruthless force that has met with a not inconsiderable degree of success in disrupting areas of the country and terrorising the local population, and has also met with some degree of military success in overrunning police and army establishments. As a result of these activities the constitution has been suspended and the country is now in a state of emergency, governed by the monarch and nominated cabinet. However, we do not share Miss Ganning’s view that the state has degenerated into a state of anarchy where the government has lost control over large areas of the country to the terrorist. Terrorists are certainly more active in some areas than in others and have a greater degree of success in some areas than others but the conflict between the government and the terrorists continues throughout the country, and nothing in the objective evidence indicates that there are areas of the country which are out of government control and totally controlled by the terrorists. As the Adjudicator points out, the willingness of the state to protect its citizens is indiacted by not only the considerable number of terrorists who have been incarcerated in prison (in respect of which there appears to be scant regard to the human rights of these people) but a very considerable number of people have been killed during the course of the conflict. It may well be that because of lack of funding the staffing of either the police force or the army is not at a level that can provide anything approaching total protection although we would emphasises that Horvath does not require one hundred percent protection. We remind ourselves that in this case neither the appellant nor his family at any time during the course of the incidents which are referred to in paragraphs 5 to 10 of the determination sought the protection of the state against the activists of harassment to which he and his family were subjected.

10. We turn now to the Belgian report and the introduction on pages 12 ad 13 of that report. A sentence on page 13 states ‘We however state that the Nepalese people who declare that they are afraid of being persecuted by the Maoists do have the possibility of internal flight.’ Reference is then made to a report of the Ministry of Foreign Affairs of the Netherlands dated November 2000. The report then goes on to indicate that there are a number of districts, which are particularly susceptible to Maoist terrorist activities. These are termed ‘stricken districts’. They are enumerated in paragraph (a) on page 17. We observe that the appellant comes from none of these districts. On the same page it is stated ‘Due to a shortage of men, and of modern weaponry means of communication, and also because of the very difficult war against the guerrilla army – which carries out targeted attacks very unexpectedly, and then disappears without a trace – the police is said to be contending with frustration and demotivation.’ The report does not indicate, however, that the police or the army have lost control over the country or any part of it.

11. On page 27 is a section headed ‘Internal flight alternative’. These second of the report does tend to deal with claims on the basis that persecution emanates from the Nepalese authorities rather than Maoists. The section (e) on page 29 states: ‘Until further notice, all the contacts still consider the Nepalese capital Kathmandu a safe city. Amnesty International declare that there have not been the question of killings in the capital until today.’ Even, apparently, low profile Maoists have been able to seek shelter in the big cities of Nepal including Kathmandu. The report throughout stresses the work of the Nepalese police and army in dealing with the protection of Nepalese citizens and, whilst the report is principally concerned with the question of human rights breaches at the hands of the Nepalese government who may at times be over-zealous in dealing with Maoists and Maoist suspects, there is no indication of either an inability or unwillingness on the part of the state to protect citizens who have no association with the Maoist movement as is the case with this appellant.

12. In our view, if the appellant does not consider that the state is able to offer him adequate protection in his own area, such protection can certainly be provided in Kathmandu as is quite clear and is emphasised in the Belgium report several times. He is thirty-three years of age, he has a trade of jeweller and there is no reason why he should not carry out that trade in Kathmandu. His wife, or possibly his former wife, his children and family would appear to be in Kathmandu. Nothing in the objective evidence nor in any of Miss Ganning’s submissions would indicate to us that it would be unduly harsh for him to move to that area.

13. We have received submissions from Miss Ganning following consideration by her of the Belgian report. Attached to those submissions is a Tribunal determination promulgated on 23 September this year in the case of Ghale [2002] UKIAT04334. We have considered Miss Ganning’s further submissions and, so far as they relate to our consideration of the question of adequacy of protection, we are not persuaded by them.

14. In any event, as we have indicated earlier, the question of internal flight is one which should be considered. Miss Ganning emphasises the findings of the Tribunal In the case of Ghale to show, not only that there is no adequacy of protection but that internal flight is not an option. She points out that Kathmandu is an area from which the appellant's family does come. This is not correct. In his statement in support of the application the appellant makes it perfectly clear that he comes from Bilwari but that his family is now living in Kathmandu.

15. In our view, the Ghale case can be distinguished both with regard to the question of adequacy of protection and, in particular with regard to the question of internal flight, because in the Gale case the appellant had been a member of the armed forces of Nepal and had been threatened by the Maoists who wanted him to join their forces to assist in training. This is not the case of Mr Shyarm.

16. We therefore uphold the decision of the Adjudicator. We do not consider that an Article 3 claim arises as in our view there is a no reasonable likelihood of the appellant being persecuted by non-state agents upon return, in particular if he relocates in an area such as Kathmandu.