Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12216/2011

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 January 2017
On 06 February 2017

Before

UPPER TRIBUNAL JUDGE blum

Between

HF (AFGHANISTAN)
(anonymity direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Bazini, Counsel, instructed by Times PBS Ltd
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is a remade decision following the identification by the Upper Tribunal of a material error of law in the decision of Judge of the First-tier Tribunal Bartlett promulgated as long ago as 15 May 2013.

Procedural background
2. This appeal has a somewhat convoluted history. The Appellant, a national of Afghanistan whose date of birth was determined to be 9th of June 1990, arrived in the United Kingdom on 29 December 2008. Having attended a screening interview on 8 January 2009 the Appellant discovered, around mid-March 2009, that the Home Office had requested Greece to take responsibility for his asylum claim pursuant to the relevant Dublin regulation. Having been informed by other Afghans in the community that he would be sent back to Greece, and afraid that he would be beaten by the Greek police, the Appellant failed to report to the Home Office as required on 18 April 2009 and was subsequently considered to be an absconder.
3. It was not until sometime in June 2011 that he decided to pursue his asylum claim and underwent as asylum interview on 12 July 2011. The Appellant believed, in brief summary of his claim, that he would be targeted by the Taliban if returned to Afghanistan as a result of his family's involvement in the Afghan government and the activities they undertook in opposition to the Taliban.
4. In a decision dated 5 October 2011 the Respondent refused the asylum claim. The Respondent did not find the Appellant's claim credible and considered, in any event, that the Afghan authorities could provide him with a sufficiency of protection and that, in the alternative, he was able to internally relocate. Whilst the Respondent accepted that the Appellant had developed a family life in the UK with his brother there was said to be no evidence of dependency over and above the normal emotional ties between adult siblings.
5. The Appellant appealed this decision but a Judge of the First-tier Tribunal dismissed his appeal in a decision promulgated on 12 January 2012. Both the Appellant and the Respondent agreed that this decision was marred by an error of law and that it had to be set aside. The matter was therefore transferred back to the First-tier Tribunal and a de novo hearing took place on 15 May 2013 before Judge Bartlett.
The First-tier Tribunal decision
6. The Judge did not accept the Appellant's claimed age (which was 09 June 1993) and concluded that he was born in the year 1990. There has been no subsequent challenge to this finding. The Judge did however find the Appellant to be generally credible and accepted most of the core assertions of the Appellant's account. The Judge's factual findings will be considered later in this decision. At this stage however it is necessary to note that, despite finding that the Appellant had been kidnapped by the Taliban in January 2008, and that he had survived an attack by the Taliban whilst travelling in his uncle's car in April 2008, the Judge considered that the Appellant had been used as a pawn in order to obtain the release of Taliban members detained by the authorities and that he was not the principle target of the car attack. The Judge was not satisfied, having applied the country guidance decision in AK (Article 15(c)) Afghanistan CG [2002] UKUT 00163 (AK) and the decision of the ECrtHR in H and B v The United Kingdom (application numbers 70073/10 and 44539/11) (H & B), that the Appellant would be targeted by the Taliban if returned to Afghanistan. The Judge appears to have regarded the Appellant as being equivalent to a low-level collaborator and that the Taliban would have neither the motivation nor the ability to pursue him in Kabul, the city where he had resided for 18 months prior to his departure from Afghanistan.
7. Noting that the Taliban killed the Appellant's father in 2006, and that his uncle, who had been employed by the Afghan Government Security Department, left Afghanistan in 2009, and noting that the Appellant had been out of Afghanistan since about May 2008, the Judge concluded that there was no reasonable degree of likelihood that the Taliban would seek to target the Appellant where he returned to Kabul. In reaching this conclusion the Judge indicated that he took account of the expert report by Dr Antonio Giustozzi but that the report was dated 13 December 2011 and preceded both the detailed analysis in AK and H & B. In considering whether the Appellant could safely return or relocate to Kabul the Judge also took into account oral evidence given by the Appellant's brother that the Appellant had distant relatives living in Kabul, and concluded that the Appellant would be able to receive financial support either from his brother or his relatives now living in Iran.
The decision of the Deputy Upper Tribunal Judge
8. The decision by the First-tier Judge was challenged, into alia, on the basis that he failed to consider key aspects of AG's report and that the cases upon which the Judge relied did not consider whether family members would be at risk because of their relationship with those treated as traitors by the Taliban. At the 'Error of Law' hearing before Deputy Upper Tribunal Judge Monson reliance was placed on the unreported Upper Tribunal decision of SM (AA/05787/2012) in which the First-tier Tribunal was held to have erred in law by failing to address the question of whether individuals would be at greater risk as a result of being perceived by the Taliban as a likely aggressor in a blood feud.
9. The Deputy Upper Tribunal Judge noted that the First-tier Tribunal had not addressed the 'blood feud' theme canvassed in the expert report and had not asked himself whether the Appellant would be a high-profile target as a consequence of being perceived as a likely aggressor in a blood feud against the Taliban. The Deputy Judge concluded that the question of risk on return would have to be reassessed and that this may, in turn, require a reassessment of the First-tier Tribunal Judge's finding that the Appellant was not the main target of the April 2008 car attack. Significantly however the Deputy Judge made no actual finding in respect of the argument advanced on behalf of the Appellant that the First-tier Tribunal had separately erred in law in the way it addressed this question.
10. It was agreed by the parties at the Error of Law hearing that the appeal should be linked with that of SM, which had been identified as being a prospective country guidance case. It is unclear whether this appeal was ever subsequently and formally linked with that of SM. What is apparent is that SM was heard, on its own, on dates throughout 2014 and 2015, and was not promulgated until 16 June 2016. Nor was SM designated as a country guidance case or a reported decision of the Upper Tribunal. Mr Bramble provided a copy of SM, not because it was said to be of particular relevance to the issues under consideration in this appeal, but because of its relevance in the identification of an error of law in the decision of the First-tier Tribunal.
The Upper Tribunal hearing to remake the decision
11. On the basis of the decision of the Deputy Upper Tribunal Judge, and in the absence of any dissent from either representative, I satisfied myself that I must remake the decision in light of the First-tier Tribunal's unchallenged factual findings and in light of the new evidence provided, which includes a supplementary expert report from Dr Giustozzi, further generic background reports and media articles relating to the conditions in Afghanistan, and medical evidence, including a psychological report, relating to the Appellant's mental health. To this end I heard further oral evidence from the Appellant, who adopted a supplementary statement dated 17 May 2016, and evidence from his brother, who adopted his supplementary statement dated 19 May 2016.
12. In his oral evidence the Appellant said that he had never worked in Afghanistan or the UK and that he had not ventured out on his own when living in Kabul. He gave evidence, which reflected the assertions in his supplementary statement and the medical evidence and medical notes provided in a new Bundle C (Bundles A and B having been prepared for an earlier hearing in May 2016 that was adjourned), relating to his prescribed medication and the diagnosis of Post-Traumatic Stress Disorder that had been made by an NHS Counselling Psychologist. He was not allowed to work and did not study and spent most of his time at his brother's home.
13. In his oral evidence the Appellant's brother indicated that the distant relatives who lived in Kabul were his paternal uncle's in-laws. The brother had not had any contact with these individuals for at least 10 to 15 years. The Appellant's brother was not able to financially support the Appellant if he returned to Afghanistan because the brother had to support his own wife and child and mother and paternal uncle, all of whom were living illegally in Iran. After hearing submissions from both representatives are I indicated that I would reserve my decision.
Further assessment of the lawfulness of an aspect of the First-tier Tribunal's decision; further findings of fact and assessment of risk on return
14. The principal facts of this appeal are not in dispute. The following is a summary of the accepted factual matrix.
15. The Appellant was born and lived for most of his life in Baghlan province of Afghanistan. Around February 1999 the Taliban asked the Appellant's brothers, J and F, to join them but they refused. Around March 1999 the Taliban arrested the Appellant's father, paternal uncle (Y) and brothers and detained them for around 6 months. During this time the family shop was destroyed by the Taliban. The family members were released around September 1999 on payment of a bribe but the Appellant's two brothers were again arrested later that month and interrogated for a week.
16. Around mid-March 2001 the Appellant's brother, J, and his uncle, Y, were arrested by the Taliban. Fearing that the Taliban would also target the Appellant's other brother, F, he was sent by their father to a distant relative's house. In May 2001 the Taliban returned the bodies of J and Y. There were signs of torture on the bodies. F subsequently fled Afghanistan fearing that his life was in danger and came to the UK around August 2001. He claimed asylum but was granted exceptional leave to remain for 4 years. He was subsequently granted indefinite leave to remain and naturalised as a British citizen on 12 February 2008.
17. Soon after the deaths of J and Y the Appellant's father joined Jamiat-e-Islami, a party associated with the Northern Alliance. Following the defeat of the Taliban in November 2001 the Appellant's father commenced work for the government as an official member of the National Security Department (the Afghan secret services). As a result of this employment the Appellant's father gained enemies in the Taliban.
18. Around mid-November 2006 the Appellant's father was killed by a Taliban rocket whilst in a car in Baghlan City. Following this the Appellant and his mother went to Kabul City to stay with his maternal uncle who also worked for the Afghan secret service. The Appellant began to attend a school in Kabul together with his cousin. One of his maternal uncle's drivers would drive them to school accompanied by a bodyguard.
19. Around January 2008 the Taliban raided the Appellant's maternal uncle's home and kidnapped the Appellant. After being captured he was informed that his father was responsible for the loss of hundreds of Taliban men but that the Taliban had managed to send his father 'to hell'. The Taliban then began to hit the Appellant. Some days later the Appellant was made to speak to his uncle on a mobile phone to confirm he was still alive. Several days after that around 60 Afghan soldiers, led by the Appellant's maternal uncle, attacked and rescued the Appellant having used their intelligence network to locate the Taliban base. The Appellant's uncle informed him that the Taliban were demanding the release of their prisoners in exchange for the Appellant. The First-tier Tribunal Judge concluded that the Appellant was effectively used as a pawn in order to seek to achieve the release of Taliban prisoners held by the Appellant's uncle.
20. The Appellant returned to school, and, together with his cousin, continued to be driven in a car whose windows were blackened or tinted, driven by his uncle's driver and accompanied by one bodyguard. Sometime in April 2008, on the way to school, the car came under attack from gunfire. The driver was killed instantly and, although taken to hospital, the Appellant's cousin later died as a result of his injuries. Following this incident it was decided that the Appellant should leave Afghanistan as his life was in serious danger. His mother and maternal uncle found an agent and arranged for him to be taken to a safe place.
21. Around the middle of 2009 the Appellant's maternal uncle, with his wife and daughter and the Appellant's mother, fled to Iran.
22. There remains an outstanding issue as to whether the First-tier Tribunal Judge fell into legal error in his analysis supporting his conclusion that the Appellant had not been specifically targeted by the Taliban the April 2008 car attack. This issue was left undecided by the Deputy Upper Tribunal Judge. It therefore falls to me to determine whether the Judge committed a legal error in this assessment. In evaluating this aspect of the First-tier Tribunal's decision I have been greatly assisted by Mr Bramble who, in submissions that were both fair and measured, accepted that the First-tier Tribunal Judge did not take into account all of the relevant circumstances surrounding the attack.
23. At [93] the Judge concluded that the Appellant had not been the primary target of the car attack because, when kidnapped, he had been used as a pawn by the Taliban in order to force his uncle to release Taliban prisoners. The Judge concluded that the real target of the car attack was likely to be the Appellant's uncle. The Judge noted that the car windows were black or tinted and that it would not have been possible to see who was travelling in the car. At [123] the Judge stated that the Appellant's cousin and the Appellant may have been secondary targets, but concluded that the main target would always have been the Appellant's uncle as he had caused a great deal of harm to the Taliban and was an official in the Afghan government security department.
24. This assessment however fails to take into account the clear and unchallenged evidence that the car was travelling to the Appellant's school, and that the Appellant and his cousin had always travelled by car in order to reach their school. As such, the Appellant's uncle is unlikely to have been travelling in the car and, given that it was a targeted attack, the Taliban are likely to have been aware of this. I am satisfied that the Judge's failure to take the full circumstances of the car journey into account constituted a material error of law and that, had he fully considered the circumstances surrounding the attack, the Judge may have concluded that the Appellant was the primary target.
25. Having considered the submissions from both representatives I proceed to remake this particular and isolated aspect of the First-tier Tribunal's decision. I am satisfied, to the lower standard of proof, that the Taliban knew that the Appellant's maternal uncle was a member of the security services whose position was such as to enable him to grant the release of Taliban prisoners. The very fact that the Appellant was kidnapped in order to attain the release of prisoners reinforces this view. It is therefore highly likely that the Taliban would have reliable and accurate intelligence in relation to the car that was attacked and where it was heading. The Appellant's unchallenged and consistent evidence was that he and his cousin were driven to school daily with a bodyguard escort. Given the frequency of this journey I find that the Taliban would, on the lower standard of proof, have been aware of where the car was going and who was travelling in the car. In the circumstances I am satisfied that the Taliban were targeting the Appellant and/or his cousin, most likely in retribution for the activities of their fathers.
26. Having concluded that the Appellant is likely, on the lower standard of proof, to have been a principal target in the April 2008 attack, it is appropriate to partially remind myself of the circumstances of the Appellant's kidnap in January 2008. Whilst I fully accept the finding by the First-tier Tribunal that the kidnapping was designed to secure the release of Taliban prisoners, it is also apparent from the Appellant's unchallenged evidence that the Taliban were acutely aware of his parentage and that he was physically assaulted as a direct result of his father's hostility towards the Taliban. I am therefore satisfied that the Appellant was, at least partially, targeted by the Taliban in this kidnapping as a result of his familial relationship with his father.
27. I now consider whether, in light of the factual matrix as determined above, the Appellant, on the lower standard of proof, is likely to face a real risk of persecution (being targeted by the Taliban) if returned to Afghanistan. It is not in dispute that, if he is returned, it will be to Kabul.
28. Of particular relevance to any risk faced by the Appellant in Kabul is the fact that he has already been targeted twice by the Taliban in that city. It is not in dispute that the Appellant was specifically targeted for kidnapping in January 2008. Whilst this kidnapping was ostensibly to coerce the Appellant's maternal uncle to release Taliban prisoners, it is clear from the Appellant's accepted evidence that, even at this stage, he was known to be the son of a National Security Department official who had caused the incarceration and death of a large number of Taliban members. This familial relationship was clearly significant to the Taliban who assaulted the Appellant as a result.
29. Given my analysis of the circumstances of the April 2008 car attack, I am additionally satisfied that the Appellant was, on the lower standard of proof, likely to have been specifically targeted by the Taliban, again because of his strong familial relationships with his father and his maternal uncle. The accepted evidence demonstrates that the Taliban were sufficiently able and willing to target the Appellant despite his residence in Kabul.
30. I take into account that some 8 years has now passed since these attacks. I additionally take into account that the Appellant's maternal uncle and his mother fled Afghanistan in 2009. I also take into account the absence of any involvement by the Appellant himself, whilst he lived in Afghanistan, of any activities against the Taliban. I do however attach significant weight to the Appellant's strong familial relationship with both his father and his maternal uncle, and the considerable and demonstrable animosity that exists between the Taliban and the Appellant's family.
31. In his addendum expert report, dated 19 May 2016, Dr Giustozzi indicated, with supporting references, that the Taliban's intelligence operations have grown increasingly sophisticated and their ability to track down individuals is also very sophisticated. He indicated, again with supporting references, that even in areas of weak Taliban presence the Taliban have informers and spies. In Kabul the main group of Taliban operating in the city claimed, in an off-the-record interview, to have 1000 paid intelligence agents and a large but undisclosed number of informers. This was said to be a substantial intelligence apparatus. The expert noted that forms of police cooperation with the Taliban continue. He noted that the situation in Kabul had worsened and supported this assertion by reference to a number of attacks on the security forces and civilians. In general violence had reached a new high in 2014. As of 2014 Taliban targeting of collaborators and elements they considered hostile continued on a larger scale than ever. The expert stated, "relatives are targeted particularly when their family members collaborating with the government are out of reach." The expert gave examples of the continued reporting about police corruption and police ineffectiveness during 2011 to 2015. The content of the expert report was not challenged by the presenting officer and my attention was not drawn to any evidence tending to undermine the particular factual assertions made in the report.
32. Based on the unchallenged content of the expert report I am satisfied, on the lower standard of proof, that, despite the Appellant's father having been killed and his maternal uncle having left Afghanistan in 2009, there remains a real risk, as a result of the very close familial relationship and the particular activities undertaken by the Appellant's father and uncle in combating the Taliban, that the Appellant would be targeted by the Taliban. I note that, although his father was dead, the appellant's uncle remains 'out of reach'. I am satisfied that the Taliban would actively seek to take revenge on the Appellant for his family's very significant involvement in anti-Taliban activities.
33. I have carefully considered the decision in AK, which remains the principal and most recent country guidance case, despite its vintage. AK was a case primarily dealing with Article 15(c) of the Refugee Qualification Directive. The appellant in AK had been disbelieved and had not been specifically targeted by the Taliban. The Upper Tribunal concluded that the level of indiscriminate violence in Afghanistan, taken as a whole, was not at such a high level as to mean that, within the meaning of Article 15(c), a civilian, solely by being present in Afghanistan, faced a real risk which threatened his life or person. It has not been argued by Mr Bazini that the Appellant in the present appeal would face any risk on return to Afghanistan on the basis of Article 15(c).
34. I have additionally considered H & B, which considered the position of two persons, one who had worked as an interpreter for the US armed forces, and the other as a driver for the UN, who would both be returned to Kabul. The ECtHR accepted that individuals associated with or perceived as supportive of the Afghan Government fell within a potential risk category and that this required a particularly careful examination of the risks to them upon return to Afghanistan. The ECtHR found that "? there is insufficient evidence before [the court] at the present time to suggest that the Taliban have the motivation or the ability to pursue low-level collaborators in Kabul or other areas outside their control" (paragraph 97). The ECtHR did however emphasize that each case must revolve on its own particular facts and individual circumstances (e.g. paragraph 100). H & B did not involve family members of individuals holding positions of responsibility or influence in the Afghan secret service. Nor did it involve individuals who had been targeted anywhere near the extent to which the Appellant has been targeted. Neither case dealt with an individual who had actually been detained by the Taliban and against whom there had been specific attempts on his life.
35. Given the very specific targeting of the Appellant by the Taliban, and in light of the unchallenged information contained in the supplementary expert report, I am satisfied, on the lower standard of proof, that the Appellant is at a real risk of being identified and targeted by the Taliban if removed to Kabul or indeed Baghlan. Given his father's involvement with the Jamiat-e-Islami and as an operative for the Afghan secret service there must be a real risk that the Appellant's return would become known to Taliban. In his 2011 report Dr Giustozzi described Baghlan as one of the provinces of Afghanistan worst affected by factional infighting in recent history. The security situation had deteriorated and that there was a resurgence by the Taliban. In his report of May 2016 the expert noted that insurgent attacks in Baghlan had increased each year since 2009 and that in 2014 the Taliban recovered ground previously lost in 2009 and were pushing towards the district centres of the north. In late January 2016 the Taliban in Baghlan cut off the power line supplying Kabul with electricity and the Afghan army has, since then, struggled to reclaim the area despite a massive operation.
36. It was not suggested by Mr Bramble that, if the Appellant was likely to be specifically and actively targeted by the Taliban, that the Afghan authorities were capable of providing a sufficiency of protection. The relevant, if aged, authorities make clear, as does the most recent CIG report, that if an individual has been or is likely to be specifically targeted by the Taliban then a sufficiency of protection is unlikely to be available. Mr Bramble did not submit that the Appellant would be able to relocate to any other part of Afghanistan and the Respondent has not identified any other region of the country to which the Appellant could reasonably be expected to relocate. In these circumstances I am satisfied that the Appellant would face a well-founded fear of persecution in Afghanistan of removed there.

Notice of Decision
The asylum/Article 3 appeal is allowed

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

02 February 2017

Signed Date

Upper Tribunal Judge Blum