AA/05787/2012

• Status of case: Unreported
• Hearing date: 25 Jun 2015
• Promulgation date: 16 Jun 2016
• Publication date: 9 Oct 2017
• Last updated on: 9 Oct 2017

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05787/2012


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 19 June, 11 and 12 September 2014 and 27 April, 24 and 25 June 2015
On 16 June 2016



Before

UPPER TRIBUNAL JUDGE GOLDSTEIN
UPPER TRIBUNAL JUDGE McGEACHY


Between

Saleem Miakhel
(ANONYMITY DIRECTION NOT made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr D Bazini, Counsel (instructed by Messrs Lawrence & Co Solicitors)
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer


DETERMINATION AND REASONS
1. This is the determination of the Tribunal to which each of its members has contributed.
2. The Appellant is a citizen of Afghanistan who was born on 15 February 1994. He left Afghanistan in 2007 and travelled to Iran by lorry and then through various unknown countries by foot and lorry entering the United Kingdom clandestinely on 22 January 2008. He claimed asylum on 29 January 2008 when he was served with the form IS.151A as an illegal entrant. His asylum claim was refused in a decision dated 22 July 2008 but he was granted discretionary leave (in accordance with the policy of the Secretary of State regarding unaccompanied asylum seeking children) until 15 August 2011. He did not appeal against that refusal.
3. The Appellant applied for further leave to remain on 18 July 2011. The application was refused on 28 May 2012. The Appellant appealed against that decision. His appeal was heard by First-tier Tribunal Judge Black on 24 July 2012 and dismissed. On appeal to the Upper Tribunal the determination of the First-tier Tribunal was set aside by Upper Tribunal Judge Perkins. We heard the appeal as a country guidance appeal to consider the relevance of "Badal", that is revenge under the Pashtunwali Code, in a dispute between an Afghani Pashtun and the Taliban but given the effluxion of time it has been decided not to report it as such.
The appellant's claim
4. The Appellant is a Pashtun from Wazir village, in the Khogyani district in Nangarhar Province in Afghanistan. When he arrived in Britain on 22 January 2008 he was aged 13. His evidence then was that he had lived with his parents in Afghanistan: his father had been a fighter with Hisb-e-Islami since before his birth and had spent long periods away from home. His father had then become a driver for ACDO (the Afghan Community Development Organisation) which was an NGO. Around June 2006 the Taliban had started to visit his home because they wanted his father to join them. Although the Appellant initially said that his father had "gone into hiding" he later asserted that his father had been taken or kidnapped by the Taliban.
5. The Taliban had told his mother that if his father did not join them his sons would be killed. Shortly thereafter the Appellant's uncle had made arrangements for him to leave Afghanistan and come to the United Kingdom. The appellant left Afghanistan in June 2007 when he was aged 13 and 4 months. At interview, the Appellant gave evidence of his father's periods away from home whilst fighting for Hisb-e-Islami and also details of his paternal uncle who had arranged his travel to Britain. Asked for details of the Taliban who came to his home, he said that he had not known their names or whether or not they were from his village. He stated that if he were returned to Afghanistan he would be killed by the Taliban. He said that it was his uncle, Waris Khan Sherzad, who had told him that his father had been taken by the Taliban (Waris Khan Sherzad is in fact his father's cousin). Asked what he believed the Taliban might have done with his father when they had taken him, he stated that they might have killed him or might have done something to him. He said the reason his father had not wanted to join the Taliban was because he had wanted to look after his family.
6. The Respondent did not accept the Appellant's evidence: it was not accepted that his father had been a member of Hisb-e-Islami or that his father had worked for an NGO or that the Taliban had issued threats against the Appellant. The letter of refusal also stated that it was not accepted that the Appellant would be alone in Afghanistan if he were returned, as his mother, siblings and uncle remained there. It was also asserted in the letter of refusal that a sufficiency of protection was available in Kabul.
7. When the Appellant renewed his claim for asylum in 2011 he stated that the authorities would know that his father had been taken, as they had informants who had reported that the Taliban were going to his house and that "my father had gone with them". He therefore suggested that he would be at risk from the authorities as well as from the Taliban. He stated that if returned to Kabul he would not be safe there, because the authorities would want to know who he was and if they found out he was his father's son that would expose him to the adverse attention of the authorities who were based in Kabul.
8. He said that if he went to Kabul he would have to try to get help from local people from his home area to assist him and therefore the Taliban would learn, as he would have to live in a community which had a lot of Taliban informants, that he was there and he would be traced to Kabul. Because it was known that he had returned from London, he would be thought to be a spy. He asserted that there would be no protection for him in Kabul where he would not be able to look after himself.
9. He went on to say that he had tried to obtain information about his family but had been unsuccessful. He said that Waris Khan Sherzad had called his father-in-law, who lived in Pakistan, who had told him that he could not go to the Appellant's area for fear of the Taliban. The appellant did not know whether his uncle, mother and siblings were still in their village. He went on to say that he would be at risk from the Taliban because he would be seen to be an infidel, the son of a traitor and also as a traitor himself. He asserted that the Taliban would want him to train "to do their suicide bombing". In his statement dated 6 July 2012 it is of note that the appellant stated that that "the insurgents came and captured my father and took him away".
10. At the outset of the hearing before us on 19 June 2014 it was noted that, although Upper Tribunal Judge Perkins had set aside the decision of Judge Black and stated that the appeal was to be heard afresh, on 13 June 2013 there had been a hearing before Upper Tribunal Judge Allen, who considered that the First-tier Tribunal Judge's positive findings were sustainable and it was agreed that the First-tier Tribunal Judge's positive findings over paragraphs 39 to 48 of his determination should be preserved. Judge Black's relevant findings in paragraphs 41 onwards were:
"41. Mr Sherzad (Waris Khan Sherzad) himself claimed asylum on arrival in the United Kingdom in February 2002. He pursued his claim on the basis of his own arrest by the authorities and their questioning of him about his father's whereabouts: his father had been a commander in Hisb-e-Islami and had worked with the Appellant's father in that organisation. Mr Sherzad was granted asylum following an appeal in which he was found to be a credible witness. On this basis, having seen the determination on Mr Sherzad's appeal, I find, particularly in the absence of any challenge by the Respondent, that the Appellant's uncle's account is a reliable one, that Mr Sherzad's father was a commander of Hisb-e-Islami, that the family has a history of association with the Hisb-e-Islami and that Mr Sherzad's father worked with the Appellant's father in that organisation.
42. The Appellant's uncle has explained how he obtained the documentation which evidences the Appellant's father's work for the NGO, Afghan Community Development Organisation (ACDO). I also note the emails from that organisation. I accept therefore that the Appellant's father worked for ACDO between 1 April 2005 and 15 September 2006. This timing is consistent with the Appellant's evidence as to his last sighting of his father a week before he left Afghanistan in June 2006.
43. Taking the evidence of the Appellant and his uncle in the round, I am satisfied that the Appellant is a credible and reliable witness. I accept that his father was formerly a member of Hisb-e-Islami and that he later worked as a driver for an NGO. I also accept that, following two visits to the family home by members of the Taliban looking for the Appellant's father, the latter disappeared and that the Appellant has not seen him since about a week before the Appellant's departure from Afghanistan.
44. The Appellant's uncle has provided the Appellant's father's work telephone number in his witness statement. The Appellant's uncle says in his statement that he discovered from his father-in-law that the Appellant's father had been taken by the Taliban. I therefore accept that this is the case.
45. In summary, I accept that the Appellant's father is a former member of Hisb-e-Islami and that he was being pressurised by the Taliban into joining that organisation. I accept that the Taliban was likely to have been aware of the Appellant's father's employment by ACDO as a driver. I also accept that the Appellant's father has disappeared and that his whereabouts are not known.
46. It is claimed that, had the Respondent attempted to locate the Appellant's family on his arrival, she would have appreciated that he was an orphan at the time. I do not consider this to be the case. There is no reliable evidence that the Appellant's mother was not still living in his family home and indeed is not still there now; the Appellant's uncle makes the point that it is difficult to obtain news from that area and this explains the lack of it. There is no reliable evidence that the Appellant's mother, uncle and siblings are no longer living in their homes in the Appellant's village either now or at any time since his departure in June 2007.
47. Relying on the above factual matrix, I find that the Appellant is likely to be known in his village as the son of a man who was formerly a member of the Hisb-e-Islami and who, latterly, has worked for an NGO as a driver. It is likely that the Taliban would have been aware of this and that his work for the NGO was at the root of their visits to the family home to find him. This finding is consistent with the evidence of Dr Giustozzi as follows:
'The practice of the Taliban to threaten government officials and anybody whom they consider to be collaborating with the enemy in order to force them to resign or abandon their activities is well-documented. The targets typically included elders, senior clerics, teachers, Judges, policemen, soldiers, National Security Directorate officials, interpreters, contractors and NGO workers. When intimidation does not work, assassinations are common. Many have been assassinated'.
48. On Dr Giustozzi's evidence, I accept therefore that the Appellant's father has disappeared and that it is the Taliban which was responsible for his disappearance. However, I note Dr Giustozzi's opinion that the Taliban's hostility to the Appellant's father 'is unlikely to have been caused by his failure to join them per se; he might have had an argument with them, related to his NGO work'. On this basis, I find that the Appellant's assessment of the reason for his father's disappearance is speculative. I find it more likely that the reason he was targeted by the Taliban was his work for the NGO, rather than a failure to join the Taliban".
11. It had been argued before Judge Black on the Appellant's behalf, that as a Pashtun he would be bound to invoke Badal in accordance with the Pashtunwali Code. The Appellant would be at risk from the Taliban because they would consider that he was a threat to them on the basis that he would wish to avenge his father. This issue became the focus of the appeal before us. We have set out details of the Pashtunwali code at annex 1.
12. On 19 June 2014, the first day of the hearing of the appeal before us, Mr Bazini further clarified the Appellant's position in that regard stating that the Appellant, as a Pashtun would be seen as someone who was bound by the Pashtunwali Code and therefore the Taliban, although they may not necessarily be bound by the code would see him as a threat for a number of reasons, one of which would be in respect of collaboration, because as is clear from the reports, revenge manifests itself in different ways for example, spying or showing western values.
13. We have considered whether or not, the appellant, as a male Pashtun asylum seeker, would, because of the Pashtunwali Code and in particular the concept of Badal, on return to Afghanistan, be bound to avenge his father's death because it was considered or suggested that his father had been killed at the hands of the Taliban and whether or not the Taliban would, he have a real risk on return of the Taliban taking pre-emptive action against him.
14. Mr Bazini said that there was no issue as to humanitarian protection. There was, however, an Article 8 ECHR issue to be considered. Mr Bazini referred to the guidance in KA [2012] EWCA Civ 1014 and EU [2013] EWCA Civ 32 regarding the Secretary of State's obligation to attempt to trace the families of minors.
15. Mr Bramble recognised that that issue could impact upon a consideration of the appellant's Article 8 rights but said that taking into account the appellant's age, although it was accepted that the Appellant enjoyed family life in Article 8 terms, the principles in Kugathas [2003] EWCA Civ 31,were relevant and there was no reason to doubt that the Appellant could re-establish himself in Afghanistan, irrespective of the time he had been out of the country and in the United Kingdom.
16. Over the course of the hearings before us, we were provided with five bundles of documentation on behalf of the Appellant that included two reports of Dr Giustozzi dated 11 July 2012 and 12 June 2014 that were subsequently supplemented with articles authored by Dr Giustozzi and others entitled "Shadow Justice - how the Taliban run their judiciary" and "The Politics of the Taliban's Shadow Judiciary (2003 - 2013)". There were also before us, reports of Mr Jawad Zadeh dated 17 June and 29 December 2014. Those reports in summary, were designed to assist the Tribunal in respect of the risks claimed to be associated with the concept of revenge and the nature and scope of the Pashtunwali Code. The bundles further included witness statements of the Appellant and his two witnesses Mr Waris Khan Sherzad and a third expert, Dr Qazizada and background material, articles, case law guidance and documentation in support of the Appellant's Article 8 ECHR appeal.
17. We also had before us two bundles prepared by the Respondent: the first of which comprised background material including a UNHCR report dated 6 August 2013 relating to the eligibility guidelines for assessing the international protection needs of asylum seekers from Afghanistan dated 6 August 2013; a Country of Origin Research and Information (CORI) document entitled "Thematic Report; Afghanistan; Blood Feuds (commissioned by UNHCR)" dated February 2014, a LandInfo (Norwegian Country of Origin Information Centre) report dated 1 November 2011 entitled "Afghanistan: Blood Feuds, Traditional Law (Pashtunwali) and Traditional Conflict Resolution" and a review of the COI Report on Afghanistan of the UKBA Country of Origin Information Service Report by Peter Marsden dated February 2013. The Respondent's second bundle included Mr Bramble's written submissions cross-referenced to the categories of source to which he referred and a bundle comprising further case law guidance all of which we have considered with care. Further in the course of the hearings we received Mr Bazini's written opening and closing submissions.
18. In addition to hearing and considering the oral evidence of the Appellant and his witnesses, we also considered the oral evidence of Dr Giustozzi, Mr Zadeh and Dr Qazizada supplementing their written evidence. We took a careful written note of the evidence and mindful of the gap in time between the hearings in over June and September 2014 and the resumed hearings on 24 and 25 June 2015, both representatives, having been told by us that we had maintained a typed note of the evidence and submissions, confirmed that they were satisfied that the Tribunal should proceed to conclude the appeal up to and including this determination.
The Appellant's further Evidence
19. Shortly before the start of the hearing in the Upper Tribunal, the Appellant served a further supplementary witness statement dated 11 June 2014. In it he stated that he had approached the Red Cross to help to trace his family and that he had sent a letter to his uncle and to the village elder both of whom had eventually replied. His uncle said that he had fled to Pakistan and that he did not know the whereabouts of the Appellant's mother. The village elder stated that in the last six years he did not know where his family had gone. When the appellant had contacted his uncle by telephone, his uncle had said that he had left the village because he was afraid that the Taliban were after him - as his father's brother, they did not trust him. He had said that he had been blamed by the Taliban for helping the Appellant escape and he had remained living in Pakistan. He had asked the Appellant not to phone him again in case that would lead him to be in trouble with the Taliban.
20. In this statement, the appellant stated that he had been young when he had fled but now that he was a man, the Taliban would believe that he had returned to take revenge and that word would get to them, because there were many people from his community and district in the UK, who would let them know that he had returned. He asserted that the Taliban would target people they knew had a good reason to be their enemies "because they'd rather harm them before they can take revenge on them".
21. He said that he would not be able to relocate in safety to Kabul. He did not know the area well and there were many Taliban within the community. It would not take long for them to find him and they would certainly believe that he would be attempting to take revenge against them.
22. He stated that the fact that there was no body would mean that it was impossible to prove what had happened to his father and that some people would suspect that his father had joined the Taliban and many would believe or know that he had been taken by the Taliban by force. He would be seen as his father's son and it would be believed that he would follow in his father's footsteps with adverse consequences for him.
23. He emphasised that he was still in full-time studies and living with his uncle and his family on whom he was financially dependent. He had been out of Afghanistan for more than seven years.
24. A further statement was prepared on 27 August 2014 in which the Appellant gave details of his private and family life in Britain. This statement relates to his claim for leave to remain on Article 8 grounds.
25. He stated that he had settled in Britain and that he looked on his father's cousin as his father and that his family were now his family. He referred to the completion of his GCSEs at St Mary's School in Hendon and then his BTEC studies in IT. He said that he would like to build a career in IT management. There were three levels of the BTEC programme which was a four year programme. He had completed his second year in July 2014. He planned to go to university, but as he did not have refugee status, a place had not been offered to him and that plan had been abandoned. He had, however, been offered a place to study for a degree in IT management at Greenwich School of Management and he said that he was due to commence his studies in October 2014 but for that, he needed his status documents or to have indefinite leave to remain. He hoped that he would receive some evidence of his status before the course was due to start.
26. He referred to his private life with friends here and also referred to the fact that he suffered from depression and was on medication. He feared that if he were returned, his mental health would deteriorate.
27. In his oral evidence before us, the Appellant relied on and adopted his various statements and was then cross-examined by Mr Bramble. He was asked about the letters which he sent through the Red Cross and to his uncle and he said that he had spoken to his uncle on five or six occasions but could not prove that he had done so.
28. Mr Bramble put to him that there had been no mention of his father when he had spoken to his uncle and he was asked what he believed had happened to his father. The Appellant replied that he hoped that he was still alive but he had not heard for six years and he had no idea whether or not he was still alive.
29. He was asked why his uncle had not sent a statement for the appeal. He said that his uncle did not have much information about his father. His father had been taken by the Taliban and his uncle did not know if he was still alive or not. All his uncle's information came from the fact that he lived in the same village.
30. Mr Bramble asked him if he had asked his uncle if his father had been taken by the Taliban or not. The Appellant said that as he already knew this, he had not asked his uncle.
31. Asked if his family had followed the Pashtunwali Code when he was in Afghanistan, the Appellant said that they did, because they were Pashtun and Pashtuns followed a traditional lifestyle. Asked whether or not he believed in Badal, he stated that he did and Mr Bramble then asked him if he considered that he would have to "do" Badal if he returned to Afghanistan. The Appellant replied that as his father had been taken, it would be his responsibility to take revenge. Asked against whom he could take revenge if he did not know whether his father was alive or dead, the Appellant replied that his father was forcibly taken by the Taliban and that when the Taliban take someone they kill them.
32. Mr Bramble put to him that for Badal to take place, there should be evidence that the killing had been seen or that the village elder or chief knew that the victim had been killed. It was put to the Appellant that he had said that no-one had witnessed the killing and that the letter received from Zafir Miakhel (the headman of the village) made no mention of the Appellant's father's death. Mr Bramble therefore put it to the Appellant that if nothing had happened, there was no reason why Badal would be relevant. The Appellant replied that he had spoken to his paternal uncle who had told him that his father had been taken by the Taliban six years ago and he had not heard from him since: that meant that he was killed. Mr Bramble asked him if he felt obligated to kill. Whilst he did not answer the question directly, he said that he strongly believed that his father had been killed.
33. Mr Bramble then asked the Appellant if he suffered from any medical conditions. The Appellant said that he suffered from depression and received medicine but he did not know the name. He would see the doctor from time to time, usually when his prescription was finished. He had had some counselling in 2012. He had seen the doctor about one month ago.

Evidence of Waris Khan Shehzad.
34. Waris Khan Sherzad gave evidence relying upon and adopting his statements, with that dated 28 August 2014 emphasising that he supported the Appellant financially, emotionally and in any other way he could and that he and his wife treated the Appellant as their son. He stated that he and his wife had seen the Appellant through his teenage years and helped him to mature and become a responsible adult and that his children, who included daughters aged 12 and 6 and sons aged 9 and 14, saw the Appellant as their eldest brother and treated him as such. He referred to the Appellant's completion of his education in IT at college and his offers of places to study at university.
35. He detailed the Appellant's depression and emphasised that the Appellant always had a home with him. He said that the Appellant was well-integrated and had managed to rebuild his life from the devastation that had threatened to end it.
36. In cross-examination, he emphasised that he was no longer being funded to support the Appellant. He was asked about telephone calls to the Appellant's uncle and he said that he had not been present when the Appellant had made these. Mr Sherzad himself had direct contact with the Appellant's uncle and it was difficult for him and the Appellant to phone at the same time because of his work pattern.
Evidence of the Expert witnesses.
37. We received evidence from Dr Giustozzi, and Mr Zadeh and Dr Qazizada. Dr Giustozzi is well-known to the Tribunal and has been accepted on numerous occasions as an objective, knowledgeable and well-resourced expert. His reports are dated 11 July 2012 and 12 June 2014. Mr Zadeh is an Afghan national with British citizenship. He considers himself to be an independent expert on Afghanistan and is a full member of the Academy of Experts in the United Kingdom. He has completed a two year LLM in International Law and International Relations at the University of Kent: 85% of his academic work was on Afghanistan and he had written extensively on Afghanistan. He has worked for two international charities in Afghanistan (1994 - 1999) and for the British Red Cross Society (2004 - 2008) in the United Kingdom and has first-hand experience of working with the Mujahedin and Taliban governments in Afghanistan. He has not, however, been back to Afghanistan for some years although he has maintained regular contact with Afghan academics in Afghanistan and the diaspora. Dr Qazizada worked as a judge in Afghanistan for many years. He now has refugee status in Britain. The three expert witnesses gave similar evidence and therefore rather than set out in detail what each expert said we have concentrated on the evidence of the principal expert, Dr Giustozzi, and where there were differences of emphasis or additional evidence we have set that out.
38. Dr Giustozzi said that there have been pockets of support for the Taliban in Nangarhar (the Appellant's province) since the early post-2001 years and that the districts where the Appellant and Mr Sherzad had lived had long been areas which were among the most heavily infiltrated by the insurgents and where the local people were hostile to foreign troops. The security situation in Nangarhar had been deteriorating since 2006 and although the city remained under government control the insurgents had been infiltrating it for some time. Attacks had increased in 2011 and in the first quarter of 2012, 135 attacks had taken place, an increase of 5.5%. In his second report he said that in 2012 Nangarhar recorded 724 insurgent attacks, a 30% increase on the previous year. In 2013 insurgent attacks in Nangarhar had increased dramatically by 161% to 1,451.
39. The practice of the Taliban to threaten government officials and anybody whom they considered to be collaborating with the enemy in order to force them to resign or abandon their activities was well-documented and that when intimidation did not work, assassinations were common. Collaborationists were normally first warned to quit their job and/or stop cooperating with the government and foreigners. There was evidence that the Taliban threatened or kidnapped family members of people associated with the government and relatives of individuals opposed to the Taliban, whether government employees or village elders, were known to have been executed in retaliation: relatives were targeted particularly when their family members who were collaborating with the government were out of reach. On this basis it was Dr Giustozzi's view that the Appellant could be at risk from the Taliban, the more so, as his father had presumably been taken by them, and he would now be thought to be motivated by the desire for revenge and to be hostile to them. He added that the Taliban would not normally target pre-puberty males. The decision to get the appellant to leave made when he was 12, was probably linked to the fact that he would soon have been at risk as he would be just approaching puberty.
40. Dr Giustozzi said that ACDO, the NGO for which the appellant's father had worked, was an Afghan NGO that among other things acted as an implementing partner for UNICEF. Many Afghan international organisations recruited former members of Hezb-i-Islami, in part to facilitate access to areas where that party had influence. The Taliban did not target all NGOs but only some. Information on ACDO's activities was insufficient to determine why it could have been targeted, but once the Taliban decided to target an organisation, anybody including low-ranking employees would be at risk.
41. Whilst the Taliban and Hezb-i-Islami rarely practised forced recruitment nowadays, they did offer financial incentives to recruits and employed psychological pressure. The Taliban had attracted many former members of Hezb-i-Islami to their ranks so that it was plausible that they might have also targeted the Appellant's father for recruitment. He added that the Appellant could not expect protection from the police, in that the police were often known to collaborate with the Taliban and the police would therefore not be a reliable source of protection for the Appellant. Moreover there were serious concerns about the capabilities of the police. Corruption was rife within the police force as staff tried to make up for a low income by asking for bribes or imposing arbitrary taxes on the population.
42. Dr Giustozzi considered that the Appellant could "relatively easily be tracked down around Afghanistan unless he was able to hide without seeking employment". He said that prospective landlords and employers would ask for references and information about his place of origin and his family background. Failure to provide them would hamper his chances of finding somewhere to live or employment; lying would not work in the medium and short term as employers and landlords are able to check information through networks and acquaintances and regularly do so. In this way the Taliban would learn where he was living. Moreover they have a widespread network of informers, covering most villages and neighbourhoods of Afghanistan. The risk to the Appellant would not be limited to Nangarhar as the insurgents had infiltrated a number of southern and western districts of Kabul city. Exploiting the Pashtun traditions of hospitality as codified in the Pashtunwali Tribal Code, militants obtained hospitality from relatives and tribesmen in the Pashtun areas of the capital and were gradually building up a network there. The Taliban had claimed, in an off the record interview, to have 1,000 paid intelligence agents and a large but undisclosed number of informers. Part of the Taliban operations consisted in buying or renting shops in strategic locations near embassies or government offices from where it was possible to observe the movements of people.
43. The Appellant represented a low value target for the Taliban. When we asked Dr Giustozzi how realistic it would be for the Taliban to trace him he said that the Taliban would not be proactive in finding the Appellant, particularly away from his home area, and that it would only be if they were looking for somebody who had presented a threat - they might see the Appellant as such a person. The Taliban look for informers who are a danger to them. However, they would consider that the appellant must harbour a desire for revenge because of his father's disappearance and the Appellant would be at risk if he resided in an area of Taliban activity.
44. He considered that in Kabul the appellant would have to live in a Pashtun area as the ethnically mixed areas of central Kabul would be financially out of reach for him. The appellant would also be at risk from the authorities because of his family background and because the disappearance of his father could be interpreted as evidence of the fact that he has joined the insurgents. The Appellant's safety in Kabul would depend on where in Kabul he resided. There were large parts of Kabul that were safe and had no Taliban presence, mostly in central Kabul or North Kabul and most of West Kabul where government ministers or army members lived because it was difficult for the Taliban to penetrate those areas but Dr Giustozzi doubted that the Appellant, being a Pashtun from Nangarhar, would find it easy to settle in one of those areas, in part because of the cost of living, unless he could secure a good job and live in a middle or upper class neighbourhood or around the centre of Kabul. Normally people from Nangarhar resided in East Kabul where there was a Taliban presence. Mr Zadeh was of the view that the Appellant as a Pashtun would not be trusted in Hazara and Tajik populated parts of Kabul in that in those areas he would be seen as a Taliban.
45. If the Appellant returned to Afghanistan he would be at risk of becoming homeless, as Afghanistan did not have any state benefit system and he would be without any family support or state assistance and had little experience of Afghanistan. Finding accommodation would be difficult and expensive. Due to the massive return of refugees from Pakistan that had led to the population of Kabul doubling in twelve months and to the destruction of 65,000 - 70,000 houses caused by the war rents had shot up. Four to sixfold increases were reported to have taken place over the last eighteen months. He said that the rent for a room could cost as much as a male labourer's wage and it could often be more. Even in remote parts of Kabul a two room apartment had cost in May 2003 US$120 (two and a half times the salary of a civil servant) , up from US$20 eighteen months earlier. By May 2007 rents had moved even higher as the building industry failed to meet demand and the average monthly rent of a two-room apartment reached around $200. After that prices continued to grow.
46. Earning a livelihood would be a major challenge for the Appellant. Unskilled worker or daily labourer in the building industry was the most widely available option but due to massive unemployment (35 - 50% depending on the estimates) most workers only got a few days of work each week. Therefore the Appellant's chances of getting even this type of employment would depend on his physical strength. Daily labour rates in Kabul were about 200 AFS per day ($4) but work was not always available. Depending on how good his English language skills were the Appellant might have a better chance of finding work, although working as an interpreter would carry additional risks as interpreters were increasingly the target of threats and harassment in Afghanistan. Moreover, employment for interpreters was falling fast because of the ongoing withdrawal of western troops. Mr Zadeh said that if the Appellant sought employment either with the Afghan government or private businesses he would have to provide references and his Taskira ID card, parents' details, addresses lived at and much more information such as details of his hobbies and extended family members. In Afghanistan finding employment with private businesses was very hard. Afghans employed relatives and siblings because they could not trust people they did not know.
47. Turning to the Pashtunwali Code Dr Giustozzi referred to the social imperative of taking Badal whenever possible. There was a hierarchy of those who would be required to exercise Badal, first sons, then closest male relatives over 13. If the eldest son had not been of an age to take responsibility that would fall on the brother of the person who had been injured. It would depend, however, on how many sons there were. The responsibilities of the son would start from the eldest and then down the hierarchy. If the eldest brother did not take revenge, then families would discuss among themselves and relatives might decide not to pursue Badal, but another member of the family might take over the role of exercising Badal. Mr Zadeh said that often in the practice of the Pashtunwali code the concept of honour, the defence of honour and Badal worked together to motivate the aggrieved person to take revenge. Mr Zadeh said that the issues of honour and bravery had also strong Islamic roots in Sharia law. The religious concept of Qisas gave the revenge taker something of a "divine right" whereby he was encouraged to take revenge. These factors were publically known and practised by the Pashtuns. Mr Zadeh continued that a Pashtun was expected to observe the rules of Pashtunwali for his entire life and that these rules and codes of behaviour were not time-bound.
48. Even a modest offence was regarded as an insult that demanded the shedding of the offender's blood. When Dr Giustozzi was asked whether the murderer would have to be specifically identified for Badal to be exercised he stated that that depended on the reason for the killing; if it was personal or not and also whether the tribe or the culprit was willing to cooperate- because before taking revenge, it was usual to try to negotiate with the family/tribe/culprit to find a settlement. The elders of the village or a member of the family in a different village would negotiate and try and achieve a settlement. Such settlement could be the transfer of land to the family of a victim or the giving of a daughter in marriage or handing over cash or some other type of property, for example a shop or a car. If the offender could not be reached, then the closest male relative was the one who must be targeted instead. Once blood was spilt, a blood feud started as the offended party had to seek Badal and spill more blood. There was no time period on the validity of a feud that could often last for generations. Sometimes these feuds could turn into outright war between the Bhattani tribes.. Feuds only ended with a successful mediation and a payment of blood money. The Pashtunwali Code still determined the behaviour of individuals, especially in rural areas and especially with the more traditionalist tribes such as the Ghilzai. With regard to killing, Pashtunwali prescribed that the 'price' to be paid by the offending party was to be agreed among the tribal elders. If the offended party (the relatives of the dead) agreed on a sum of money or any other form of payment such as land or even women, then the matter was settled. If that did not work, the family of the offending party could clean its record of any responsibility, by handing over the guilty individual to the other family, or even execute him itself. If this did not happen either, then it became a matter of honour for every male member of the offended party's family to take revenge whenever it was possible.
49. Compared to the situation as it was before the war in the 1970s, the practice of Badal was even more widespread now, both because of weaker policing and because of the re-tribalisation of Afghan cities which meant that Afghan tribesmen in remote districts were now much more able than before to rely on fellow tribesmen in the cities to track down and punish individuals who were considered guilty of some crime against a family or a clan. Failing to pursue Badal would lead to the loss of status in Pashtun society and the loss of respect from other villagers. A household that failed to pursue Badal would be seen as weak and at risk of depredation by other households. For this reason there was usually strong social pressure on the leading males of each household to pursue Badal. The Pashtunwali Code did not apply to ethnic groups other than Pashtuns. Among Pashtuns, however, it was followed most closely by the tribal populations of Eastern and South-eastern Afghanistan, particularly in rural areas. Pashtuns who had grown up in cities tended to follow Pashtunwali less closely. Dr Giustozzi confirmed that Pashtun society was set up along family, kin and tribal lines. Pashtuns would be aware of those who were their ancestors, even if the connections might be mythical - they would know the genealogy of the tribe and how close or far they were related to others in their area.
50. In his oral evidence Dr Giustozzi said that if there was a dispute between a family and the Taliban, the closest analogy would be that of a tribal conflict. If there was no specific individual on the other side, an attempt at settlement would be much more difficult and there would be no one to make a suitable offer and in practical terms, if there was not a dispute between individuals or a tribe and the Taliban, there would be practical difficulties in effecting a settlement. In any event settlement would be impossible with the Taliban as if they executed an individual they would say that they were carrying out a sentence because of that individual's guilt and that they had the right to punish him.
51. Dr Giustozzi said that the appellant would be bound by the Pashtunwali Code to exercise Badal. Because of the expectation that the Appellant would want or be under pressure to take revenge for the death of his father, the Appellant might avenge his father simply by passing on information about Taliban movements/activities to the authorities. Few would expect him to take a rifle and kill them, but the Appellant might be expected to join the Afghan Army or police or security forces or become an informer to get revenge. He might also join a local militia. Dr Giustozzi said that he had interviewed many Afghanis who had done just that.
52. The risk was that the Taliban would be inclined to suspect him of being a government informer every time somebody tipped off the authorities about the Taliban in any area where the Appellant might settle in the future. In Mr Zadeh's view the natural assumption of the Taliban in the case of the Appellant as far as Badal was concerned, was that he would be viewed as someone likely to cause harm to them. Dr Giustozzi said that the Taliban were banned from executing people arbitrarily and if they did so, they would not admit it and it would not be possible to know what had happened.
53. With regard to the appellant's father Dr Giustozzi stated that there might be an attempt to see if he could be produced, but this would have to be done through tribal elders who would have to start a discussion. It was almost impossible that the situation would lead to a settlement. If the Appellant's father had been killed without a trial, that would be denied. If there had been a trial and it was stated that he had been found to be guilty, then there would be nothing to discuss. Mr Zadeh stated that the Taliban and Hezb-i-Islami were aware of destitute Afghans in areas of their activity and would welcome the appellant and see him as a new recruit for their terrorist causes. If some members of the Taliban recognised him to be from his home area in Nangarhar Province then they can find out about his father and the family background. This could make them suspicious of the appellant and the accusation that he was an informer for the Afghan government and foreign forces. If the Taliban observed his western behaviour and his English language skills, he would be harmed rather than recruited to become a Taliban member.
54. The fact of having lived six years in the UK would not, in itself, increase risk to the Appellant but he might be at increased risk if he had adopted westernised attitudes during his stay here. If the Appellant was perceived to have such westernised ways, he could come under serious pressure in the rural areas and in the more conservative towns. Particularly if he kept refusing to join the Taliban, they could put pressure on him by accusing him of having become westernised. In practice, westernised Afghans never lived in rural areas or small towns for this reason. In Kabul and in the main cities of Northern and Western Afghanistan however, he would hardly be noticed as more westernised attitudes were quite common there.
55. Asked what the Appellant would be expected to do if he did not know whether or not the Taliban had killed his father and it was not clear that his father had been abducted by the Taliban, Dr Giustozzi stated that it would be relevant what the people in the village thought - if they thought his father was alive there would be expected to be negotiation. If the Taliban failed to produce an answer, then it would be assumed that the Appellant's father was dead. For the Code to apply the death or crime would have to be established.
56. We asked Dr Giustozzi how the appellant would know with which Taliban group to negotiate and he explained that this would be at a district level where there would always be a Taliban shadow governor and/or a military commander in charge of the combined troops of the Taliban in that district and around him, a commission comprised of the most important Taliban commanders. They would meet up with people from the Appellant's tribe or village including relatives.
57. When it was pointed out to Dr Giustozzi that Badal would appear to be something that had not emerged in the past in terms of asylum cases and that that in turn raised the question as to its prevalence, Dr Giustozzi responded that Badal was most prevalent in remote areas, but that around the cities and Kabul where people were more educated, it was less prevalent.
58. Notably, he confirmed that the cost of leaving Afghanistan to come to the West would be around $10,000 and therefore it was not landless people who could afford that amount - we would not be dealing with those from the peasantry. Often land might be sold or assets disposed of to raise money.
59. When asked about the issue of return to Kabul to see relatives there, Dr Giustozzi stated that large parts of Kabul were safe - those who were government officials lived in the centre of North or Western Kabul where the work of government carried on or where Tajiks lived and where it was difficult for the Taliban to penetrate those areas. However, as a Pashtun from Nangarhar it would be difficult for someone like the Appellant to settle in such an area because of costs unless he could get a good job.
60. Dr Giustozzi stated that the Taliban would not authorise a pre-emptive strike. Arbitrary killing was not allowed and he referred to a situation where Taliban members had killed an individual in a pre-emptive strike and had been punished by the Taliban for that. However, he stated that if it was a situation where an individual who was considered to be a threat was rounded up, there could well be a fake trial which could lead to his being killed. Information regarding individuals would not be published by the Taliban courts. Nobody could be punished or executed without trial. The trial had to be based on evidence.
61. Mr Zadeh was of the view that if the Appellant relocated to Kabul, the likelihood of the local Nangarhar Taliban finding him was "very high".
62. Dr Giustozzi was referred to an article within the Appellant's bundle from Strategy World.com dated 10 June 2014 entitled "Afghanistan: the Taliban refuse to talk" where it was stated that in August, 2013 the Taliban had murdered five aid workers and seven other accused of working for foreign troops. All the dead were Afghans. It had been stated that while that was supposed to discourage Afghans from working with foreigners it just increased public hatred of the Taliban and caused more Afghans to take up arms (joining the security forces or a tribal militia) to fight back. The Taliban does not want this popular opposition but has been forced to use terror to control the population because religion or promises of a better life under Taliban rule has not worked. Dr Giustozzi agreed that it did contribute to recruitment of the security forces and was a negative factor for the Taliban, but that at the same time, it would be difficult for the Taliban to allow such people to join the armed forces without retaliation. The Taliban would thus send a strong message of threats to behave according to their rules. It was understood that following usually two warnings over weeks or months in order to give such people an opportunity to change their minds, there would be a serious backlash. The Taliban would want to avoid indiscriminate killing as this would paint a poor picture for the Taliban but the commanders in the field were more worried about a hostile individual spying on them and reporting them to the authorities.
63. Mr Zadeh said that the majority of rural parts of Nangarhar Province did not recognise the Afghan judiciary. Thus issues of arbitration, honour, familial disputes, various crimes including murder, were often the responsibility of the tribal elders to determine who issued verbal rulings and verdicts.
64. Mr Zadeh took issue with the claims of the Secretary of State that Kabul was a safe place and insisted that it was not safe and "very dangerous". This he stated, accorded with the Foreign & Commonwealth Office's travel advice to Afghanistan that several major districts of Kabul were very dangerous and he proceeded to identify what he described as unsafe areas of Kabul that were mainly populated by the Pashtuns that were "hotspots of the Taliban and Hisb-e-Islami".
65. Mr Zadeh pointed out that the Afghanistan government did not have a nationwide computerised register of Afghan citizens to monitor new arrivals in the capital. There was no register such as a Polling Register. In each small area of Kabul known as a "Gozar" all the residents' affairs would be dealt with by an appointee of the local residents. Such a person was known as a Vakil-e-Gozar (Council Representative) who was an influential person and an outstanding member of his community. Such a person would work with the local police stations, landlords and estate agents and would have to verify the identity of the newly arrived residents. This meant that the Afghan government would become aware of who was residing in which part of the country. Such information had to be used as the verification of suitability and good character references for a tenant. In such circumstances, the Appellant would be required to provide a copy of his Taskira ID card to provide full details of his parents, grandparents, place of former residency.
66. Mr Zadeh said that in a situation where the Taliban as an insurgent group do not recognise the legitimacy of the Afghan government, they are highly likely to exert their religious views of eliminating infidels from earth. He said that it was possible that the Taliban would pre-empt the revenge taking and take the life of the appellant before he had a chance to harm them.
67. He said that Pashtunwali was widely followed in Afghanistan and in consequence of being marginalised by the "war on terror" the Pashtuns were much more determined to defend their rules as changes in the Afghan society for the purpose of consolidation of "some aspects" of democratic governance was perceived as a real threat to tribalism and Pashtunwali.
68. The knowledge and practical use of Pashtunwali that the Appellant had learnt by meeting young Afghans in the United Kingdom and by living with his cousin here, was "a very enlightened form, from which one can 'pick and choose' certain things". Thus the Appellant would be likely to respond differently to a given situation than a Pashtun in Afghanistan.
69. Mr Zadeh continued that the Taliban would first and foremost, eliminate the possibility of revenge taking in the case of Appellant which would be by killing him. In doing so they would attribute his killing to the fact that they found his father as a collaborator. His westernised behaviour and rejection of the Taliban actions would substantiate the Taliban's claim of him being a collaborator. If the appellant decided to remain indifferent about Badal this did not mean that the Taliban would not view him as a threat and if he did not take revenge of his father's abduction and death then he would be "shunned, discriminated against and disrespected by the members of his community". Hostility that the Appellant could be thought to have against the Taliban was "highly likely to put his life at risk".
70. Mr Zadeh said that when he had asked Dr Qazizada was asked whether during his time as a Judge he had decided revenge (Badal) cases Dr Qazizada had responded that in Afghanistan more than 50% of the killings among Pashtuns were for Badal although that term would not be used in the media as although in 99 out of 100 cases 'Badal' takes place among Pashtuns, they do not want to be seen as barbaric by other Afghan ethnicities. Disallowing the use of 'Badal' in Afghanistan is a political measure.
71. Mr Zadeh said that he had found several hundred articles in Dari, Pashto and English concerning Badal - these were in an addendum to his report. Between 1 March and 31 May 2014 the UN recorded 5,864 security-related incidents relevant to the work, mobility and safety of civilian actors in Afghanistan, particularly those events that affected the delivery of mandated activities and programmes. From 1 September 2013 to 31 August 2014 9,604 civilians had been killed or injured.
72. Mr Zadeh explained that in the more cosmopolitan areas such as Kabul Pashtun customs had been in effect "watered down" before stating that even in the outer suburbs of Kabul there was no evidence that these people do or don't perform Badal - but the majority of the inhabitants in those areas come from Nangarhar Province which is only 90 miles or so from Kabul or other nearby provinces. It is open to them to perform Badal according to the custom but there is no evidence that they do. Mr Zadeh however, emphasised that he was essentially talking about the rural areas when talking about Badal. He said that:
"The Taliban do not get involved in pre-emptive strikes but certain elements are likely to be involved by bending the rules".
73. It was put to Mr Zadeh that notwithstanding that he had provided various English articles of which some he had translated there still seemed to be a distinct lack of objective material that the Badal was the trigger for male members to join the army, police and militia. Mr Zadeh was asked the reason for this absence of evidence. He replied that not everything was written down. He confirmed that pre-emptive attacks were very common in Afghanistan, but that newspapers and the media did not refer to Badal at all.
74. Turning to the evidence of Dr Qazizada we note that he had been a prosecutor in the Appeals Courts of Nangarhar, Central and Dar-ul-Aman between 1977 and 1997. He had been the Head of the Oversight Committee of the Directorate of Public Oversight responsible for the investigation an oversight of all legal affairs of the government between 1993 and 1995. Dr Qazizada was involved with a law consultancy and was a qualified attorney-at-law specialising in Commerce, Civil Crime and Qisas and Hadd between 1996 to 2001. In 2001 he was appointed a Justice to the Supreme Court of Afghanistan.
75. His official duties were as head of the Baghlan Appeal Court between 2004 to 2005 and then the head of Appeal Courts of Afghanistan in 2006. He was a Judge to Level Three Courts (Judge for high level reconsiderations) between 2008 to 2009. Dr Qazizada stated that he was also head of the Public Security Department of the Nangarhar judiciary where he decided on cases of opium-smuggling, Taliban, terrorism and forgery of documents between 2009 to 2010. In 2010 he was appointed head of Appeals Courts in Nurestan Province for three months and then transferred back to Nangarhar because of the deterioration of security. In 2011 he headed the appeal courts of Qurnar Province and led the Commerce Department of the Nangarhar judiciary.
76. Based upon his experience of Badal, Dr Qazizada explained that it was not necessary to see a dead body to exact revenge. This was because when the Taliban took someone and if no contact was made by the Taliban, perhaps to request a ransom payment which was often demanded when Taliban detained returnees from Europe and if no-one had seen the missing person or heard from him after some time "usually a few months" it was "usually assumed that the missing person is presumed dead" as the Taliban did not have the ability and capacity to detain people for very long. They did not have many detention places.
77. In his statement, Dr Qazizada continued that Badal meant "that you should do to the person's family what they have done to you". However, nothing required the response to be proportionate. Therefore someone could do something less than killing a family member for Badal but that even if there might be a disproportionate response, it would still be possible to justify it as Badal because a response does not have to be proportionate.
78. Dr Qazizada continued that Pashtunwali required that if someone kidnapped or killed a member of a Pashtun's family he had the options of attacking the kidnapper and releasing the person kidnapped or killing one of them or taking another member of their family as a captive. This would depend on the power and influence of their family.
79. In his statement, Dr Qazizada dealt with the question as to whether the Taliban took pre-emptive action before someone took revenge on them. He answered in the affirmative. During his time as a Judge 80 to 90% of the murder cases that came to court in the Pashtun areas were for issues related to Badal. The rest related to honour killings.
80. Dr Qazizada continued that all murders would come to the attention of the authorities or come to court. It was, however, not usual to record Badal in the verdicts recorded by the courts. He said that in all of his experience as a Pashtun man and in all of my working life, he had not seen or heard of anyone from the family of the dead forgiving the offending family. Dr Qazizada maintained that in his experience 70% of the Pashtun people who joined either the warring factions in Afghanistan did so to exact revenge.
81. Dr Qazizada stated that the concept of "blood feud" but it was a principle that covered concepts that included Badal but it was "not coterminous with Badal". If a perpetrator of violence took pre-emptive action on the family member of the offended, this might be part of a blood feud but not be Badal.
82. As regards pre-emptive strikes on the part of the Taliban against Pashtuns, Dr Qazizada was asked as to what evidence he had, to show that revenge was taken as a pre-emptive action. He responded that it is not the whole group of the Taliban that would take pre-emptive strikes but some of them might - that was a possibility.
Other Background Material
The `UNHCR Report dated 6 August 2013 relating to their Eligibility Guidelines for assessing the International Protection Needs of Asylum Seekers from Afghanistan.
83. We note that in this report of 88 pages no more than half of one page concerns itself with individuals involved in Blood Feuds in Afghanistan. It was stated that blood feuds are primarily a Pashtun tradition and are rooted in the Pashtun customary law system, Pashtunwali. The report states that blood feuds can be triggered by murders, but also by other offences, such as the infliction of permanent, serious injury, the kidnapping or violation of married women, or unresolved disputes over land, access to water supplies or property and they may give rise to long cycles of retaliatory violence and revenge. A blood feud may lie dormant until such time as the victim's family believes it is capable of taking revenge. Revenge can thus be taken years or even generations after the original offence.
The Country of Origin Research and Information (CORI) Thematic Report on Afghanistan; Blood Feuds dated February 2014
84. This report was in fact commissioned by the UNHCR, Division of international protection and was designed to aid decision making on issues of refugee status. We note that their source material included a reference to the July 2003 report of Professor Thomas Barfield on the importance of honour in the Pashtunwali Code and an interview with him in January 2014 in which he said that blood feuds are triggered by personal violence, sometimes deliberate, sometimes unplanned, that arises out of a dispute. In other words it is not the dispute itself but actions arising from it that start blood feuds.
85. The report refers to the view of Professor Barfield in January 2014 that the usual procedure in terms of settlement mechanisms was to get the offended side to accept a blood money payment for their relative's loss, obtain an apology from the offender's kin, and have some form of reconciliation ceremony. Among Pashtuns there was also an exchange of women in marriage (baad) between the two groups designed to forestall future conflict. He had also said that most non-Pashtuns did not follow this custom and today it seems on the wane and replaced by blood money and that, ironically this may have been due in part to the Taliban's condemnation of the practice as unislamic.
LandInfo Report on Afghanistan - "Blood Feuds, Traditional Law (Pashtunwali) and Traditional Conflict Resolution" dated 1 November 2011
86. LandInfo is an independent body that collects and analyses information on current human rights situations and issues in foreign countries. It provides the Norwegian Directorate of Immigration, Norway's Immigration Appeals Board and the Norwegian Ministry of Justice and the Police with the information they need to perform their functions. The reports produced by LandInfo are based on information from both public and non-public sources.
87. This report presents some key aspects relating to blood feuds, traditional laws and conflict resolution in Afghanistan but the report stresses that it does not, however, provide a comprehensive picture of all matters relating to Afghan subjects. The report points out that the term customary laws refers to an informal shared understanding and perception of right and wrong, way of life, behaviour and morals in a social group or a local community, and also includes principles, rules, procedures and systems for conflict resolution. There is a close relation between customary law and Sharia Law in Afghanistan.
88. Notably, further reference is made to the views expressed by Professor Barfield not least in his report of 2003, in particular that it is in "rural areas, however, that there is such melding of their tribal law with Islamic religious law that the two are often viewed as inseparable and mutually supportive".
89. Pashtunwali is described as "the most comprehensive and elaborate of the customary law systems in Afghanistan" and that it serves "as a manual for the Pashtun population's way of life, social order, rights and obligations, morals and code of honour guiding most aspects of a Pashtun's life. Theft, rape and murder are considered to be immoral behaviour, but sanctioning perpetrators is not considered a responsibility of the community; this responsibility rests with the victim and revenge is an acceptable reaction. Local tradition, public opinion and Pashtunwali sets limits on the legitimacy of the revenge - how, who and where.
90. Interestingly, LandInfo point out that:
"It can be problematic or impossible for the victim's kin group to exact revenge. This is the case, for example, if the murderer is from a more powerful family than the victim and revenge could have fatal consequences. If it is deemed impossible to avenge a killing, the victim's family will often leave to avoid the shame they may face by failing to exact revenge and having to live in proximity to the murderer(s)?..
However, a blood feud can lie dormant until the victim's family believes it is capable of exacting revenge. Young sons can be given a responsibility to avenge their murdered father when they reach adulthood - revenge can be taken months, years, even generations after an offence".
91. The report goes on to say that:
"LandInfo is not aware of any sources presenting information indicating the prevalence of pre-emptive revenge (i.e. murdering the male relatives of a victim in order to make the other group unable to avenge the initial murder). In LandInfo's experience, such scenarios are unlikely, as they violate Pashtunwali and most possibly will be considered unacceptable by local communities. It is likely that the local community would intervene and impose serious sanctions, for example expulsion from the area. Moreover, in the Afghan context, it would be extremely difficult to kill all male family members in a family who could be given responsibility for carrying out revenge. This would normally involve a large number of men".
92. It is clear that the Taliban are not bound in any way by the Pashtunwali Code but that it is further clear at least insofar as the Taliban high/central command is concerned, that their rules and Constitution similarly do not permit pre-emptive strikes.
93. Reference is made to a 2007 interview with a senior Judge and the head of the "Studies and Investigation Department of the Afghan Supreme Court" who estimated that "close to 80% of all murders are due to blood feuds or private revenge". We note that this conforms with the evidence of Dr Qazizada.
94. The report also states that in 2009 the Cooperation for Peace and Unity (CPAU) carried out conflict analyses for the period 2002 - 2008 in selected districts in five different provinces that included Kabul. In their report the extent of blood feuds and murders relating to other types of conflict were discussed. CPAU stated that 2% of the total number of conflicts registered in the analysed districts were due to blood feuds/murder. If the figures are limited to conflicts in and between families, the percentage of blood feuds/murder is 3%. That report indicted that blood feud/murder was the smallest conflict category by far.
COI Report on Afghanistan - prepared for the Independent Advisory Group on Country Information (IAGCI) by Peter Marsden and dated February 2013
95. Peter Marsden is described as a Middle East specialist who has worked as a specialist on Afghanistan since the beginning of 1989. From 1989 until 2005, he worked as a political analyst in support of a network of British NGOs operating in Afghanistan and to this end he produced a monthly analysis of the political, security, economic and humanitarian situation in Afghanistan through the BAAG Monthly Review. This came to be distributed, globally, to governments, UN agencies, NGOs and the media and continued to be published until 2007.
96. The report states that, building on the experience of British NGOs in working with the Taliban Government of 1992 - 1996, Mr Marsden carried out further research into the movement, culminating in the publication in 2008 of "The Taliban: War, Religion and the New Order in Afghanistan". In support of the operations of British NGOs, he also undertook two field-based studies each year on aspects of the humanitarian situation in Afghanistan and on the situation of refugees in Pakistan and Iran as well as of returnees to Afghanistan. In 2011 he was commissioned by the University of York under contract to the Afghan Government to contribute to an in-depth study of the effectiveness of the Government's rural development programme in facilitating the return of refugees from Pakistan and Iran. He is an author of a number of publications in relation to Afghanistan.
97. For the purposes of the report before us, it is said that Mr Marsden was commissioned by the Independent Advisory Group on Country Information to evaluate the UKBA's Country of Origin Information report on Afghanistan.
98. Mr Marsden points out "the considerable difficulties involved in accurately capturing the reality on the ground in Afghanistan, given the complex political dynamics of the country and the fact that access to that reality is heavily constrained by the adverse security environment, even in the urban areas such as Kabul". In the course of his report, Mr Marsden deals with blood feuds and in relation to pre-emptive violence he states:
"It has always been my understanding that pre-emptive violence does occur within blood feud situations, even though it is not a stated element within Pushtunwali. In other words, an individual who expects to be killed under a blood feud situation, may seek to first kill an individual within the other party to the blood feud who feels duty-bound to avenge the death of his relative. This would be particularly the case if the individual who feels duty-bound to avenge the death of his relative is in a relatively weak position - i.e. if he has no or very few male relatives to protect him."
99. Mr Marsden continues that he is not aware of Pushtunwali prohibiting such pre-emptive violence and also not aware of any evidence that the community would impose serious sanctions in such an eventuality. He maintains that there is nothing in the documentation that he has read on Pushtunwali to suggest that this is the case. He goes on the say that:
"However, I have not been able to find any alternative documentary evidence to definitively establish that pre-emptive violence does take place, in order to prevent a revenge attack, within blood feud situations. I have also been unable to find any documentary evidence, other than the Landinfo source quoted in paragraph 9.17 to state that pre-emptive violence does not occur in such situations. It is not clear, therefore, what experience Landinfo is drawing on to state that pre-emptive violence is unlikely to occur, that this would violate Pushtunwali, that it would most possibly be considered unacceptable by local communities and that the local community would intervene and impose serious sanctions. It is important to note that Landinfo is relying on the absence of documentation, to provide evidence that pre-emptive violence does occur in revenge situations, to suggest that this does not occur"
100. Mr Marsden expresses concern, that there will be many situations in which returning asylum seekers would have lost family members through acts of violence and in which they would be expected to feel duty-bound to avenge these deaths. He continues:
"Such returnees would, in my view, have a legitimate fear that they would be killed by the perpetrators of those deaths to prevent them acting out their revenge. The Landinfo source may therefore be used to exclude such returnees from protection, while lacking a strong evidential base for such exclusion".
101. Mr Marsden continues, that given the absence of "hard evidence either to prove or disprove the existence of pre-emptive violence in blood feud situations" he would recommend that the LandInfo's source should be excluded.
102. In that regard the report bears a footnote on behalf of the COIS that for the sake of completeness we feel important to include as follows:
"COIS: Not accepted.
While we recognise that the Landinfo information is in part based on the absence of facts and therefore interpretation, we note that the reviewer does not have any information to the contrary. As Landinfo are a respected and generally reliable source of information and analysis, we do not think it correct that this information is removed from the report. However, we accept Mr Marsden's concern and as a compromise we propose to retain the Landinfo material but include his comments (or a variation of these if would prefer) in the next update".
103. We would add that whilst the parties' voluminous and respective bundles further made included other country material and various articles, we have taken into account the fact that many are dated some years back and others might be said by their source and authorship to lack the necessary objectivity such that would enable us to place particular weight and reliance upon them. Properly analysed, we consider that much of this material consists mainly of opinions and unsubstantiated assertions and that the persuasiveness and value of much of it is limited by its vintage. In regard to that material we prefer the further evidence in the public realm that intrinsically qualifies for greater weight.
104. We have noted and taken into account the skeleton arguments and oral submissions from Mr Bramble for the Respondent and Mr Bazini for the Appellant. We trust that we have taken into account their submissions in our discussions of the issues in this appeal below.
Burden and standard of proof
105. In considering this appeal we note that the burden lies on the appellant to show to the lower standard of reasonable likelihood that he has a well-founded fear that on return to Afghanistan he would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; he must also show, to the same standard that there is a real risk of his suffering a breach of his rights under Article 3 of the European Convention of Human Rights.
106. With regard to the rights of the Appellant under Article 8 of the ECHR we have followed the structured approach set out in the determination in Bossade (ss.117A-D-interrelationship with Rules) [2015] UKUT 415 (IAC). We have therefore first considered whether or not the Appellant meets the requirements for leave to remain under paragraph 276ADE of the Immigration Rules and have also considered whether or not there are any compelling or exceptional factors which would make his removal disproportionate and, when considering whether his removal would be disproportionate have taken into account the provisions of Sections 117A - D of the Nationality, Immigration and Asylum Act 2002. Paragraph 276ADE reads as follows:
"The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK. "
The provisions of section 117 A-D have been taken into account when we consider the fifth question posed in the House of Lords judgment in Razgar, R (on the Application of) v. Secretary of State for the Home Department [2004] UKHL 27.
Discussion
107. The focus of this appeal was whether or not , as a Pashtun, the appellant, would, because of the Pashtunwali Code and in particular the concept of Badal, be bound to avenge his father's death if he believed that he had been killed by the Taliban and would therefore be at real risk on return because the Taliban would take pre-emptive action against him.
108. It is clear from the evidence before us that the Pashtunwali Code is the main code for Pashtuns. The LandInfo Report on Afghanistan of 1 November 2011 (above) describes Pashtunwali as "the most comprehensive and elaborate of the customary law systems in Afghanistan" and that it serves "as a manual for the Pashtun population's way of life, social order, rights and obligations, morals and code of honour. Pashtunwali regulates and guides most aspects of a Pashtun's life". However, Dr Giustozzi pointed out that it is not followed by all Pashtuns because many Pashtuns have migrated to the cities and become separated from old traditions and are less bound to them. Mr Zadeh in his evidence explained that in the more cosmopolitan areas of Afghanistan such as Kabul, Pashtun customs had been in effect "watered down". Professor Barfield said that it was most widespread in marginalised, rural and often poor areas beyond government control.
109. Dr Giustozzi stressed that the Pashtunwali Code did not apply to ethnic groups other than Pashtuns but that among Pashtuns it was followed most closely by the tribal populations of Eastern and South-eastern Afghanistan and more in general in the rural areas.
110. We are therefore satisfied that the practice of the Pashtunwali Code is one that is most prevalent in the rural areas and mountainous areas of Afghanistan and in particular the remote areas, but that in and around the cities such as Kabul it is far less prevalent. In consequence the extent that a Pashtun was likely to consider himself closely bound to the Pashtunwali Code, it is a fact-sensitive issue.
111. If the code were followed the concept of Badal - taking revenge against the wrongdoer - comes into play. There is considered to be no time limit to the period in which revenge can be taken. Badal may lead to a blood feud but it is important to note that normally blood feuds in this male-dominated society are settled in a number of ways and not just be a revenge killing.
112. Dr Giustozzi when accepting that Pashtunwali was followed more in the villages and that it would be followed among tribal members gave an example that if a Pashtun was murdered, the relatives of the victim would be expected to take revenge. The male relatives of the victim over puberty, would come first, starting with the closest male relative. As to whether the murderer would have to be specifically identified for Badal to be exercised, he stated that this depended on the reason for the killing, if it was personal or not and whether the tribe or the culprit were willing to cooperate or not, because before taking revenge it was usual to attempt to negotiate with the family/tribe/culprit to find a settlement. The elders of the village or a member of the family in a different village would negotiate. Such settlement could be the transfer of land to the family of a victim or the giving of a daughter in marriage or it could be cash or some other type of property, for example a shop or a car. We see no reason to disagree with Dr Giustozzi's views as to how such matters may be settled.
113. Dr Giustozzi confirmed that where the death of the victim was the trigger Badal the tribal elders would decide if the victim had been killed - the establishment of the death was an essential prerequisite to trigger Badal. Badal could be triggered by other circumstances, such as by adultery or a violation of honour. In areas where Badal was practised a person would be considered to be weak and could become a target of further abuse if they did not take revenge.
114. Although it was Mr Zadeh's evidence that pre-emptive attacks were very common in Afghanistan, Dr Giustozzi and Mr Zadeh agreed that the elders would not support a pre-emptive strike so as to avoid a massacre and that it would break the tribal rules. Despite, the fact that tribal elders would never approve of a pre-emptive strike, a strong landowning family might ignore this requirement.
115. Whilst therefore we accept that the Pashtunwali Code and its traditions are largely followed in the rural and remote areas of Afghanistan, we are not satisfied that the evidence before us shows that such pre-emptive strikes are in any way common.
116. While we are aware that Mr Marsden does not rule out pre-emptive strikes (although he could find no evidence of the same) we are fortified in this conclusion by the terms of the Landinfo report which we consider correctly summarises the position thus:
"Landinfo is not aware of any sources presenting information indicating the prevalence of pre-emptive revenge (i.e. murdering the male relatives of a victim in order to make the other group unable to avenge the initial murder). In Landinfo's experience, such scenarios are unlikely, as they violate Pashtunwali and most possibly will be considered unacceptable by local communities. It is likely that the local community would intervene and impose serious sanctions, for example expulsion from the area".
117. When considering the position of someone who has been family has been harmed by the Taliban the reality is that it would be very difficult to trace who the perpetrator against whom the individual might wish to take revenge was and the various mechanisms, through the local tribal leaders of seeking redress in any form would not be effective given that not only do the Taliban not consider that they are bund by the Pashtunwali Code but moreover they would not accept that they had done anything other than they were entitled to do and that therefore they would not provide any form of compensation.
118. The evidence of Dr Giustozzi and Mr Zadeh was that the Taliban would not authorise a pre-emptive strike. Arbitrary killings were not allowed. Dr Giuistozzi referred to a situation where Taliban members that killed an individual in a pre-emptive strike had been punished by the Taliban for so doing and our clear conclusion is that the Taliban would not consider it appropriate to exercise any pre-emptive action. Dr Giustozzi also explained that when it came to pre-emptive strikes arising between the Taliban and a Pashtun, it was important to bear in mind that the Taliban described themselves as the legitimate government of Afghanistan. They had their own rules that were printed and available in booklets and mainly held in the hands of Taliban members and more particularly other high-ranking commanders.
119. However, violation of these rules did happen at the instance of some commanders, as it was difficult to adequately supervise what happened in the mountains, and villages. In all, however, we can only conclude that although there may be cases where a particular Taliban commander might decide to make a pre-emptive strike that would be unusual and that there is not a real risk of that happening.
120. On the evidence before us we find that the Taliban clearly have the means potentially to monitor and keep an eye on people even in the Pashtun areas of Kabul. Moreover, they have informers in the villages who would report to the Taliban when they visited. However, they are interested in such matters as to who worked for the government or if anyone had recently joined the army. If such a person returned to his village, the Taliban would question why he was returning and where he had been.
121. Our conclusion, reinforced from our consideration of the CORI Report of February 2014, that tallies with the evidence of Dr Giustozzi and Mr Zadeh, is that an individual unable to directly harm the Taliban, might discharge his obligation in terms of Badal, by joining the police or the army or pass on information to the Afghan authorities which may be true or indeed false. The reality is that although we fully accept that in rural areas of Afghanistan Badal is practiced, the evidence that the practise of Badal, as part of the Pashtunwali Code, is practiced when revenge is sought against other local individuals or tribes and indeed is one of the main reasons for murder in Afghanistan there is no evidence to show that a Pashtun would be expected to, or would decide to directly seek revenge against the particular group of Taliban that he might consider had harmed his family. In particular, there is little evidence that those who have lived abroad and no longer live in rural areas of Afghanistan would be expected to exercise Badal by directly taking up arms to attack a particular group of Taliban whom he believed might have harmed his family.
122. Moreover, although we accept that even in Kabul, whilst the Taliban might become aware of the presence of a returning Pashtun asylum seeker, someone such as the appellant would be of little interest to them.
123. Turning to the Appellant's particular claim we note that his evidence has developed in two ways; firstly, about what may or may not have happened to his father and secondly, what the Appellant's own position would be regarding the exercise of Badal.
124. With regard to the position of the Appellant's father, the reality is that the Appellant initially said that his father had disappeared after a dispute with the Taliban or that he had "gone" with the Taliban. What he did not say was that his father had been killed by the Taliban. It was the view of Mr Zadeh and Dr Qazizada that the Taliban would not be able to hold anyone against their will for any length of time and therefore that they would be likely to kill such an individual, because they had no prisons in which to hold him. Despite that we note the evidence of the Appellant that his father may be alive.
125. The second issue is whether or not the Appellant would himself wish to exercise Badal against the Taliban. That is not something which he had ever stated until just before the hearing that he would wish to do. The reality is that he simply does not know with whom his father went or by whom he was taken. He did not know this when he arrived in Britain in 2008 and neither of the communications from his uncle or from the village headman gave any indication as to who the Appellant might consider had been responsible for his father's disappearance.
126. In any event, we do not accept that the Appellant would be able to exact Badal against a member or members of the Taliban of whom he knows nothing and given that he did not say that he would wish to do so until he stated just before the hearing that he would follow the Pashtunwali Code and there is no evidence as to whom he might consider responsible for his father's disappearance we conclude that there is no likelihood of the Appellant endeavouring to exact Badal against a member or members of the Taliban. We would add that we do not consider that there would be any societal pressures on him to do so, given the lack of evidence that any individual member of the Taliban or group of Taliban took his father. It follows that we do not find to be credible, even to the lower standard of proof, that the Appellant on return to Afghanistan would intend to or consider himself to be under any obligation to exact Badal against anyone on his father's behalf under the Pashtunwali Code.
127. We accept that it may well be the case, that if the Appellant had strong feelings against the Taliban because he believed his father was taken by them, that he might decide that he wished to join the police or the army, although the reality is that he has given no indication that that is what he would wish to do. If he did so, then as a member of the police or the army he might be considered to be a target by the Taliban. That is a different matter and is not, in any event, a basis upon which the appellant puts his claim.
128. Even if that were the case, we are mindful of the determination of the Tribunal in EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC) in which the guidance in AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) was followed, namely;
"562. As we stated in Part H, we do not consider that, notwithstanding its status as a 'living instrument', the Refugee Convention can be construed as affording refugee protection to a person who is in favour of inflicting harm on another, whether or not the societal and religious background of that person might be responsible for her having that wish, and whether the harm is inflicted by that person or by someone else, with her approval.
?
591. A person is not entitled to protection under the Refugee Convention, the Qualification Directive or Article 3 of the ECHR, on the basis of a risk of harm to another person, if that harm would be willingly inflicted by the person seeking such protection (paragraphs 238 - 240 and 561 - 567)'."
129. Given the uncertainty around the Appellant's father's disappearance and the fact that the Appellant has been out of Afghanistan for many years, we conclude that there is not a real risk of the Appellant being sought by the Taliban on return. We accept Dr Giustozzi's evidence that the Appellant would be very low down on their radar.
130. We note the clear evidence that, in any event, they would not seek the appellant out. There is also clear evidence that that they do not operate on the basis of pre-emptive strikes. While there may be rogue commanders who do operate outside the Taliban's own code of conduct there is nothing to indicate that that would be relevant in this case.
131. If the Appellant's evidence is to be believed (and, indeed, we accept his evidence that his family have moved and indeed that his mother has disappeared and that his paternal uncle is now in Pakistan) there is little reason why the Appellant should return to his home area. If he does, then for the above reasons, we do not consider that there would be a real risk of his facing persecution there, but in any event, we have considered the position of whether or not it would be appropriate for him to relocate to Kabul. We have taken into account the fact that there are between 3,000,000 and 4,000,000 people in Kabul.
132. The evidence was that a person such as the Appellant would have to go to the areas with the most Pashtuns where the network of Taliban informers and sympathisers was most prevalent, but for the reasons we have set out above we do not consider that that in itself would lead to his having a real risk of persecution from the Taliban there.
133. We accept that the appellant might well have to register in Kabul and therefore there would be a channel through which the Afghan authorities would be aware that he had returned, but there is simply nothing to indicate that a person whose family member may or may not have been abducted by the Taliban, would be considered, particularly when they have been out of the country for many years, to be a supporter of the Taliban. We therefore do not consider that there is any real risk of his facing persecution in Kabul from either the Taliban or from the authorities there.
134. We note that Mr Zadeh asserted that Kabul was not a safe place and that as a Pashtun the appellant would not be trusted in Hazara and Tajik populated parts of Kabul and that in those areas he would be treated with suspicion but the reality is that we do not consider that he would have to go to those areas.
135. We accept that it may well be the case, that if the Appellant had strong feelings against the Taliban because he believes his father was taken by them, he might decide that he wished to join the police or the army, although the reality is that he has given no indication that that is what he would wish to do. If he did so, then as a member of the police or the army he might be considered to be a target by the Taliban but as we have stated above that issue is a completely different matter from the issues in this appeal.
136. For the above reasons we have concluded that the appellant therefore does not have well-founded fear of persecution on return to Afghanistan and that if he did not want to return to his home area he would be able to seek internal relocation in Kabul.
137. We note that Mr Bazini accepted at the beginning of the appeal before us that should the appellant not be entitled to refugee protection he would also not be entitled to humanitarian protection. He was correct to make that concession. We have therefore decided to dismiss the appeal on both asylum and humanitarian grounds. Moreover, for the same reasons we find that the Appellant would not suffer treatment contrary to his rights under Article 3 of the ECHR.
138. There were two arguments raised by Mr Bazini which can be dealt with in short form. In his first skeleton argument, Mr Bazini argued that the failure of the Respondent to trace the Appellant's parents was such that the Appellant should have been granted leave to remain. We consider, having applied the terms of the judgment in EU (Afghanistan) [2013] EWCA Civ 32 that there is no merit in that argument nor indeed is there any merit in the argument that, applying the terms of the determination in LQ, the Appellant was entitled to leave to remain.
139. Mr Bazini also argued that given that the Appellant had leave to remain under Section 3C of the Immigration Act 1971 from 2011 onwards he was entitled to be treated as a child who had been in Britain legally for seven years and that therefore, on that basis he was again entitled to leave to remain. Again that is an argument which we do not accept as we do not consider that leave under Section 3C was leave which was anything other than precarious in the terms of Section 117B(5) of the Nationality, Immigration and Asylum Act 2002.
140. We now turn to the issue of the appellant's right under Article 8 of the ECHR. We have set out above the relevant structured approach. We accept, as indeed was accepted by Mr Bramble, that the Appellant has established a private life here. Indeed, notwithstanding the age of the Appellant, we have concluded that given his vulnerability when he arrived and his acceptance by the family of Mr Waris Khan Sherzad, that he is a member of that family and, of course, the fact is that he is closely related to them: we conclude that he has also established family life in Britain. Even taking into account the ratio of the judgement in Kugathas and the appellant's age we consider that his family life with the family of Waris Khan Sherzad is so strong that it is worthy of protection.
141. We have considered the terms of paragraph 276ADE of the rules. Clearly the appellant does not qualify under subparagraphs (i) to (v). When considering subparagraph (vi) we must consider whether or not there would be very significant obstacles to the appellant's reintegration into Afghanistan if he were required to leave the county. We consider that there would be: we place weight on the fact that he no longer has any family either in his home area or in Kabul: we accept his evidence and that of Waris Khan Sherzad in that regard. There would simply be nothing for him in his home area and we consider that he would be destitute there. Moreover, in Kabul the lack of family would mean that he would have extreme difficulty in either finding work or accommodation. The evidence of both Dr Giustozzi and Mr Zadeh was that there would be difficulties for a returning Pashtun asylum seeker to Kabul to earn a livelihood on his own. Unskilled work or daily labouring in the building industry, are the most widely available options but due to massive unemployment (35 - 50% depending on the estimates) most workers only get a few days of work each week. Daily labour rates in Kabul are low and work is not always available.
142. The Appellant arrived in Britain at a young age and we consider that his case can be distinguished from that of other young Afghans who arrived at the ages of 16 onwards who will have far clearer memories of their own country and indeed of Afghan society. In that regard the Appellant has been out of Afghanistan not only for all his adult years but for all his teenage years as well. We believe that it would be extremely difficult for him to cope, as, effectively, a westernised young man, with life in Kabul, a city of which he has no knowledge, and a country of which, effectively, he has no experience either as a teenager or as an adult.
143. We therefore conclude that the obstacles to his re-integrating into life in Afghanistan are so great that he should succeed under the provisions of paragraph 276 ADE (vi).
144. Even if we are wrong in that regard it is incumbent on us to consider whether or not there are any exceptional or compelling factors in this case which would mean that the appellant's appeal should be allowed on human rights grounds under Article 8, outside the rules, effectively a consideration of the fifth question posed in the judgment in Razgar.
145. We have taken into account the terms of Section 117B. We note that the Appellant speaks good English and that not only is he not a burden on the UK taxpayer at present, his academic ability as shown by the qualifications which he has already obtained and the offers of places at university which he has received would indicate that he would not be a burden on the taxpayer in the future or would be anything other than financially independent. We have already taken into account the fact that his immigration situation is precarious but although, quite clearly, the factors set out in Section 117B are not factors which, should they be met, would mean that removal would be disproportionate, it is of note that the applicant does fulfil certain of these factors.
146. We refer to our conclusions set out in paragraphs 143-145 above which we need not repeat. We have further taken into account the Appellant's academic achievements while here and his obvious application to his studies. With regard the nature of the Appellant's family life with Mr Sherzad and his family we accept that he is looked on as a member of their family - and looked on as a sibling by Waris Kahn Sherzad's children. We also place weight on the fact that they are now his only close family: we accept his evidence that he has lost contact with his mother and siblings. He has lived with Mr Waris Khan Sherzad and his family for seven years and we consider that the strength of his relationship with that family is an important element when assessing the proportionality of removal.
147. We place particular emphasis on the fact that the appellant has no relatives either in Kabul or in his home area to which he could return. However, the reality is that the appellant has spent all his teenage years and adult years here. We consider that is a particularly strong factors in assessing his rights der Article 8 of the ECHR and we find those factors together with the difficulties which he would face on return to Kabul are sufficiently compelling for us to conclude that the removal of this appellant would be a breach of his rights under Article 8 of the ECHR.
148. Even therefore if therefore if we were wrong in concluding that the obstacles faced by this appellant in reintegrating on return do not reach a level of significance such as to engage 276ADE(1)(vi), when taken cumulatively with the other factors we have identified above, we are satisfied that the balance, when considering this appellant's Article 8 claim outside the rules, should be struck in his favour. We therefore find that, on the evidence before us the decision to remove the Appellant would be a disproportionate interference with his rights under Article 8 of the ECHR. Accordingly we allow the appeal on Article 8 ECHR grounds.
Decision
The making of the previous decision involved the making of an error on a point of law and has been set aside.
Our decision is that the appeal is dismissed on asylum and humanitarian protection grounds, but allowed on human rights grounds under Article 8 of the ECHR.



Signed Date 15 June 2016


Upper Tribunal Judge McGeachy

Annex:
The Pashtunwali Code
This is the Pashtunwali Code as defined in Wikipedia that Dr Giustozzi accepted with some clarification as an accurate description of the code:
"1. Melmastia (hospitality) - Showing hospitality and profound respect to all visitors, regardless of race, religion, national affiliation or economic status and doing so without any hope of remuneration or favour. Pashtuns will go to great lengths to show their hospitality.
2. Nanawatai (asylum) - Derived from the verb meaning to go in, this refers to the protection given to a person against his or her enemies. People are protected at all costs; even those running from the law must be given refuge until the situation can be clarified. Nanawatai can also be used when the vanquished party in a dispute is prepared to go into the house of the victors and ask for their forgiveness
3. Badal (justice) - To seek justice or take revenge against the wrongdoer. There is considered to be no time limit to the period in which revenge can be taken. Justice in Pashtun lore needs elaborating: even a mere taunt (or 'Peghor') is regarded as an insult which usually can only be redressed by shedding the taunter's blood. If he is out of reach, his closest male relation must suffer the penalty instead. Badal may lead to a blood feud that can last generations and involve whole tribes with the loss of hundreds of lives. Normally blood feuds in this male-dominated society are settled in a number of ways.
4. Turah (bravery) - A Pashtun must defend his land, property, family and women from incursions. He should always stand bravely against tyrants and be able to defend the honour of his name. Death can follow if anyone offends this principle.
5. Sabat (loyalty) - Loyalty must be paid to one's family, friends and tribe members. Pashtuns can never become disloyal as this would be a matter of shame for their families and themselves.
6. Imandari (righteousness) - A Pashtun must always strive for good in thought, word, and deed. Pashtuns must behave respectfully to people, animals and the environment around them. Pollution of the environment or its destruction is against the Pashtunwali.
7. Isteqamat - Trust in God (known as 'Allah' in Arabic and 'Khudai' in Pashto). The notion of trusting in one Creator generally comports to Islamic ideas of belief in only one God (tawheed).
8. Jhayrat (respect, honour and courage) - Pashtuns must demonstrate courage. Their honour, or pride, has great importance in Pashtun society and must be preserved. They must respect themselves and others in order to be able to do so, especially those they do not know. Respect begins at home, among family members and relatives. If one does not have 'jhayrat 'they are not classed as a Pashtun.
9. Naamus (protection of women) - A Pashtun must defend the honour of women at all costs and must protect them from vocal and physical harm.
10. Nang (honour) - a Pashtun must defend the weak around him".