Tribunal decisions

The decision

KH
Heard at Field House

RS (Hezbe Islami – expert evidence) Afghanistan [2004] UKIAT 00278
Date: 29 July 2004

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

30 September 2004

Before:

Mr P R Moulden (Vice President)
His Honour Judge Huskinson (Vice President)

Between

APPELLANT

And

Secretary of State for the Home Department

RESPONDENT

DETERMINATION AND REASONS

1. The appellant is a citizen of Afghanistan who has been given permission to appeal the determination of an Adjudicator, Mr M T Sykes, dismissing on both Refugee Convention and human rights grounds his appeal against the respondent's decision to give directions for his removal from the United Kingdom following the refusal of asylum.

2. Ms J Leivesley of Counsel instructed by Lawrence & Co, Solicitors appeared for the appellant. The appellant attended the hearing. Mr L Parker, a Home Office Presenting Officer, represented the respondent.

3. The appellant arrived in the United Kingdom illegally on 28 June 2003. He applied for asylum that day. Illegal entry papers were served on 28 June 2003. The notice containing the decision against which he appeals is dated 15 October 2003. The Adjudicator heard the appeal on 19 December 2003 and permission to appeal was granted on 1 March 2004.

4. The appellant's claim was based on his fear of persecution if returned to Afghanistan because of his membership of Hezbe Islami and his brother's high profile within Hezbe Islami.

5. In paragraph 16 of the determination the Adjudicator said,

"16. Although I accept that the appellant and his brother were Hezbi Islami party members and that his brother was a commander who had a position of prominence, I do not find the appellant's account of his arrest and detention credible."

6. The Adjudicator set out more detailed conclusions and the reasons for them in paragraphs 17 to 24 of the determination in the following terms,

"17. The appellant says that after the incident involving the surrender of the weapons to the Taliban in October 1996 'Following this my brother and I abandoned our political activities. My brother began to farm on his land. I set up a shop in Jalalabad. We did not have any further problems with the Taliban. We led a very peaceful life." (paragraph 6 of his statement at B3). He expands on this in his interview at question 45 at D11 where he says in relation to the 1996 incident: 'Actually Hezbi Islami ceased to exist after that, the leadership and the party organisation was no more there. We had no choice to remain in the party after that, but traditionally in Afghanistan once you join a group or party then the people will consider you a member of that party till the end. We did not leave the party as such but it was no more functional.'

18. The appellant does not say that he or his brother had any more involvement with politics in general or Hezbi Islami in particular between then and 1 February 2003 when they were both detained and the appellant was interrogated about his brother's activities. He relates the interest in them to the hostility of the Northern Alliance following the declaration of a jihad against foreign troops by the leader of the Hezbi Islami party, Gulbuddin Hekmatyar.

19. The CIPU report says this about the Hezbi Islami party at Annex B:

'Hisb-i Islami Gulbuddin (Islamic Party Gulbuddin)

Pashtun/Turkmen/Tajik; led by Gulbuddin Hekmatyar. Radical Islamist, controlled few military or political resources in June 2001. In December 2002 Hekmatyar issued holy jihad against foreign troops. According to reports his whereabouts are still unknown after he was expelled from Iran in summer of 2002. There are however reports that he is in Afghanistan. In January 2003 it was reported that the expelled Taliban regime had regrouped and allied itself to Hekmatyar. Reports of an alliance between Hizb-i-Islami and the Taliban were denied by Taliban officials and supporters of Hekmatyar. In August 2003 it was reported that Hizb-i-Islami are one of the groups believed to have been responsible for a spate of attacks on Afghan and Western government, military and humanitarian targets.'

And says this about Gulbuddin Hekmatyar at Annex C:

'HEKMATYAR (Engineer) Gulbuddin

Leader of Hizb-i-Islami Gulbuddin. Prime Minister 1996. Hekmatyar was at one time supported by Pakistan and Saudi Arabia, but eventually Pakistan turned against him preferring to give support to the Taliban. Hekmatyar fled Kabul when the Taliban swept to power and was given refuge by the Iranians. His vocal opposition to the new president Karzai was an embarrassment to the Iranian government who expelled him in February 2002 and closed his offices in Tehran. A number of his supporters were detained in Kabul in April 2002 accused of conspiring to plant bombs. Hekmatyar himself remains elusive although there are reports that he is in Afghanistan.'

20. I acknowledge that if the appellant or his brother had supported the resuscitated Hezbi Islami party and more particularly if they had been publicly active on its behalf, they might well have attracted the adverse attention of the Northern Alliance and indeed of coalition forces. I do not find it credible, however that more than five years after their last active involvement with the party, the Northern Alliance should have decided to arrest and detain them.

21. I note further that the alleged arrests took place10 months or so after the arrests of his supporters accused of conspiring to plant bombs. It seems to me that if prominent former members of Hezbi Islami were considered to be worthy of attention as such, then the appellant's brother would have been detained much sooner, in April 2002 or thereabouts, the time the party supporters were detained in Kabul.

22. It also seems to me that the appellant and his brother would have had some warning signs that this was likely to happen. He says in paragraph 7 on B4 that incidents in their own area, the bomb explosion in Jalalabad and the rocket attack on Jalalabad airport, were also blamed on the Hezbi Islami, and that 'All this worried my brother and I as we did not know how this would affect us', but he does not say that people who had previously been prominent Hezbi Islami members were being arrested. If, as he says at question 12 on D4, about 60% of the people in his village supported Hezbi Islami earlier, there must have been many more people like his brother who had been commanders or better and who had held positions of authority who would also have been of interest to the authorities from early 2002 onwards, yet he does not mention any other such detentions.

23. Nor, and much more importantly of course, as far as I am aware are there any reports of such detentions of previously prominent Hezbi Islami members. The report of the arrests in April 2002 in Kabul make it clear that it was current supporters of Gulbuddin Hekmatyar who were being detained (see the CIPU report about Hekmatyar quoted above and the report at page 299 of the appellant's bundle 'Last week, authorities arrested at least 160 people accused of plotting to undermine the government of Prime Minister Hamid Karzai – most of them members of Hekmatyar's Hezbi Islami party. As of Thursday, about 100 remain in jail, officials said.').

24. For these reasons I do not find the appellant credible and I do not consider that he would be at any risk on his return to his home area for the reasons he states in connection with the Hezbi Islami Party."

6. The two grounds of appeal are that,

"1. The Adjudicator erred in finding the appellant's account of his arrest and detention was not credible due to

i) the five year gap in his support for the party during the Taliban regime;

ii) the fact that the appellant was not arrested closer to April 2002; and

iii) the fact that only current members were of interest to the authorities.

2. The Adjudicator has failed to consider whether membership of Hezbe Islami alone would be enough to found a fear of persecution given the increasing acts of violence allegedly committed by the group during 2003."

7. Permission was granted in the following terms,

"Permission is given under r.18.4b of the Procedure Rules, so the Tribunal can consider generally the evidence relating to risk on return for members or former members of the Hezbe Islami. Since Dr Lau is to be called, the hearing will be listed in London."

8. We have an appellant's bundle running to five hundred and eighteen pages, a chronology, Dr Lau's expert opinion dated 14 July 2004 and, from the Home Office, the April 2004 CIPU Report, the Tribunal determination [2003] UKIAT 00088 S and the Danish report of June 2004, the last being an update of the Danish report of March 2003 which was before the Adjudicator.

9. Dr Lau attended and gave evidence. He adopted his report before answering a number of supplementary questions and then being cross-examined at some length by Mr Parker. Ms Leivesley submitted that insofar as the Adjudicator did not accept the appellant's account of events his findings of fact were not supported by the country information. She argued that the partial adverse credibility finding was flawed and, in the circumstances, we should remit for hearing afresh before a different Adjudicator. She submitted that we could not repair the error. She argued and we find that the Adjudicator gave no reasons for rejecting some elements of the appellant's account other than by reference to the country information. Mr Parker asked us to dismiss the appeal on the basis that the Adjudicator reached findings of fact which were open to him on the evidence.

10. The Adjudicator deals with the appellant and his brother giving up their political activities with Hezbe Islami between late 1996 and their claimed arrest in February 2003 in the paragraphs of his determination which we have set out, reaching the conclusion in paragraph 20 that he did not find it credible that more than five years after their last active involvement with the party the Northern Alliance should have decided to arrest and detain them.

11. Having read his report, noted his qualifications and heard him give evidence we find Dr Lau to be an impressive, authoritative and careful expert witness. We give considerable weight to his opinions. Indeed, except for one point where Mr Parker suggested we should prefer the Danish Report, he did not suggest we should give any less weight to Dr Lau's opinions.

12. Dr Lau's opinion merits inclusion in full. He states:

"1) I have been instructed by Lawrence & Co, Solicitors, to provide an expert opinion on the legal and political situation in Afghanistan on behalf of their client Mr Rahim Sherzad.

Qualifications

2) I am a Barrister and the Head of the Law Department of the School of Oriental and African Studies, University of London, where I teach courses on South Asian law at both postgraduate and undergraduate level. I hold academic qualifications in law and in South Asian history from the University of Heidelberg and the University of London. I am the Deputy Secretary of the British Association of Pakistan Studies and was the Director of the Centre of Islamic and Middle Eastern Law from April 1995 to March 1998. I am the Chief Examiner for Islamic Law of the External LLB of the University of London. My current position involves intensive research on modern Afghan and Pakistani law.

3) I have visited Afghanistan five times in the past two years. In January of this year I visited Heart and Kabul on behalf of the German office in connection with consultations on Afghanistan's new constitution. In July 2003 I held a series of workshops on the reform of Afghanistan's criminal procedure law on behalf of the US Institute of Peace and the International Resources Group. The governmental partners in Afghanistan were the Ministry of Interior, the Office of the State Prosecutor and the Supreme Court. On previous occasions I carried out an evaluation of Afghanistan's legal system on behalf of the International Commission of Jurists, Geneva. In the course of my visits to Afghanistan I have met with many judges, police officers, prosecutors and lawyers as well as with NGOs, UN officials and government officials.

4) In the beginning of May 203 I organized a conference on legal education in Afghanistan on behalf of the German government and was able to meet inter alia the Chief Justice of Afghanistan and the country's Minister of Justice.

5) The opinions expressed in this report are based on my experience of working on Afghan legal issues including human rights and the assessment of the dynamics of law enforcement.

6) I am aware of the Civil Procedure Rules relating to expert evidence (SI 1998 No. 3131) and I understand that as an expert witness I owe an overriding duty to this Court rather than to those instructing me.

Opinion

7) I have seen a copy of the appellant's statements in support of his case, a copy of the Refusal Letter of the Secretary of State, a copy of the appeal statement and a copy of the reasons to grant leave to appeal to the IAT.

8) The background to this matter is set out in the documents mentioned above. Mr Sherzad was arrested by members of the Northern Alliance in February 2003 apparently under the suspicion of having worked for the opposition. His brother and he himself were members of the Hezb-I-Islami.

9) Both the IAT and the Home Office have been referred to objective reports on Afghanistan and in this opinion I shall not repeat the same. The main reason for the decision to permit an appeal was 'so the Tribunal can consider generally the evidence relating to the risk for members or former members of the Hezb e-Islami.' In this regard I have been asked by those instructing me to deal with several issues.

10) Firstly, I have been asked whether Mr Sherzad's account of events is plausible. In my opinion it is. I note that one reason for doubting the veracity of the appellant's account was the timing of the events, in particular, the timing of the arrest which occurred long after the two brothers had ceased their respective activities for the Hezb-Islami and some time after a spate of arrests of members of that party following several acts of terrorism.

11) The war against terrorism in Afghanistan is being fought by numerous agencies and groups. It is fought largely in secret and has so far stayed clear of Afghanistan's legal system. The silence of the objective evidence on the trial of suspected terrorists, of the rate of those arrested as suspected terrorists, indeed the almost complete absence of any information in the public domain on the number of persons arrested because they are accused of being associated with Al Qaeda, the Taliban and Hezb-I-Islami is deceptive. Occasional newspaper reports reveal that arrests and interrogations of suspects take place on a very regular basis. They are carried by Afghan internal security and intelligence agencies, US agencies and even private mercenaries cooperating with members of the Northern Alliance. Last week an American mercenary was arrested in Kabul: five Afghans, strung up by their feet, were found hanging in the living room of his bungalow in Wazir Khan, a very up-market residential area of Kabul. It appeared that he was trying to get information from the five men about the whereabouts of Osama Bin Laden and other terrorists.

12) In my opinion, the timing of the arrests does not in any way indicate that the appellant has made it up and in my opinion, based on my knowledge of the events in Afghanistan, his account is plausible.

13) Secondly, I have been asked whether his continuing fear of return to Afghanistan for reasons given in his statement are well-founded. In my opinion the most serious risk arises from his association with the Hezb-I-Islami. The group is without doubt a very dangerous terrorist organization determined to attack and destroy the current government and to turn Afghanistan into a 'pure' Islamic state. Its leader is believed to be hiding in Afghanistan and despite concerted efforts he has not been apprehended. His group continues to carry out terrorist attacks.

14) In my opinion it is difficult to discount the appellant's fear as irrational only because his own association with the Hezb-I-islami ceased some time ago. It appears that members of the Northern Alliance think otherwise, as evidenced by his arrest, interrogation and mistreatment. I am not aware of any public trials of suspected terrorists and thus there is no judicial forum for him to protest his innocence. Given the substantial financial rewards for information leading to the arrest of suspected terrorists promised by the US there is ample motivation to 'test' the knowledge of anyone who is believed to have been close to the Hezb-I-lslami. In my opinion the appellant's fear in this regard is well-founded.

15) I am, however, not so pessimistic about any risk arising from a perception that he might have become 'Westernised' during his stay in the UK. Numerous Afghans work for Western and international agencies in Afghanistan. Many wear Western dress, speak English in the course of their work and receive Western tv programmes via satellite in the evenings. At least in Kabul none of them have come to harm on that account. The situation is different outside Kabul where a number of Afghans working for aid agencies have been killed. However, they were killed because of their cooperation with the 'enemy' rather than because they were perceived to have converted from Islam or had ceased to be Muslims.

16) Thirdly, I have been asked to comment on the availability of the option of internal flight. In my opinion internal flight in Afghanistan is very problematic. The country's societal structure is very tribal in nature and it is most problematic for an outsider to fit into an area where he has no family and relatives. The economic problems, especially the scarcity of land, have made communities hostile to outsiders. Even returning refugees trying to reclaim land which used to be owned and occupied by them prior to leaving the country are finding it very difficult to settle in their areas of origin. A complete outsider would find it almost impossible. Ethnic tensions would also work against him: recent country reports indicate that Pashtun minorities continue to be harassed and intimidated in the North.

17) Fourthly, I have been asked to comment on the ability of the government to protect him. I think that the current government has little interest in protecting suspected terrorist. In any event, the legal system is virtually non-existent and I very much doubt that it would be able to protect the appellant against threats from within the Northern Alliance. The state of the legal system and the law enforcement agencies is well documented. I am personally involved in the attempts to reconstruct and rebuild the country's legal system and in my opinion there is little chance of any effective protection being provided currently. It should be added that ISAF does not protect individuals but assists the government in the implementation of the Bonn Agreement. Its presence in Kabul has, however, improved the security situation in Kabul significantly.

18) I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct."

13. Whilst the Adjudicator concluded that more than five years after their last active involvement with Hezbe Islami the Northern Alliance were not likely to have decided to arrest and detain the appellant and his brother, the appellant's evidence was that once an individual joined a group or party then others considered that he was a member "till the end". This is a credible assertion in the light of Dr Lau's oral evidence that the appellant's home area was well known for its support of Hezbe Islami and that the enormous rewards offered by the United States for senior members of Hezbe Islami, the Taliban and Al Qaeda mean that regular and irregular forces and even individuals and groups of mercenaries have a strong incentive to detain and question those thought or known to have been associated with Hezbe Islami, even if there is no recent evidence of involvement. It is clear that Hezbe Islami is a secretive organisation. It is unlikely that those currently associated with Hezbe islami would wish to publicise their involvement. They are more likely to do everything possible to hide it. Against this background, known low-level former supporters are still likely to be at risk, particularly if, like the appellant, they had a brother who was known as a Hezbe Islami commander.

14. In paragraph 21 of the determination the Adjudicator argues that if prominent members of Hezbe Islami were detained in Kabul in April 2002 it is not likely that the appellant or his brother would not have been detained until February 2003. We find that the Adjudicator is making a false comparison. It does not follow that the appellant and his brother were arrested in February 2003 because of what happened in Kabul in April 2002. The appellant did not claim that he and his brother were arrested because of what happened in Kabul. He said that they were arrested, some considerable distance from Kabul, in his home area, because of the efforts of the Northern Alliance to "combat and get rid of those opposing them" in particular those involved with Hezbe Islami. The point made by the Adjudicator does not go to the appellant's credibility.

15. It is not clear whether what the Adjudicator is saying in paragraph 22 of the determination, that the appellant and his brother would have been likely to have some warning that they were going to be arrested, was intended to be a point going to credibility. The Adjudicator draws no direct adverse conclusion. However, assuming that he intended that an adverse inference should be drawn, we do not consider it justified. Whilst the evidence indicates that the appellant and his brother may have known that their past association with Hezbe Islami could at some time have adverse consequences, it is not suggested that there were any immediate warning signs, certainly in their area, to which they should have paid heed. It is speculation on the part of the Adjudicator, not supported by any evidence, that there must have been many more people in the appellant's village, like his brother, who had been commanders or who had held positions of authority with Hezbe Islami.

16. Mr Parker took us to the following passages in the Danish Fact Finding Mission Report between 20 March and 2 April 2004 at pages 66 and 67.

"The source was of the opinion that individuals who were included as earlier supporters of Hezbe Islami including former Hezbe Islami commanders do not have any problems with the government in Afghanistan at the present time if they make it clear that they do not work with Hekmatyar. Some of the earlier Hezbe Islami members occupy high positions within the government. As an example the source mentioned that Hekmatyar's former right hand man currently holds a high position in the government. The source added that it depends on the person's history whether a former Hezbe Islami member runs a risk of being persecuted at present in Afghanistan.

Hezbe Islami earlier had a lot of civil servants connected with them, and the source added that President Karzai has decided to involve such former Hezbe Islami officials into the government. President Karzai has among other things appointed various former Hekmatyar supporters as governors. The question as to whether a member of Hezbe Islami runs a risk of being persecuted depends on the connection of the person involved with Hekmatyar and to what extent the person concerned has conflicts with powerful people in Afghanistan.

Unama had knowledge of a case in which a person had been captured by the ANA and was accused of being connected with Hezbe Islami. The person was freed because his brother was able to prove to the ANA that the person in question no longer supported Hezbe Islami. The source stated that if the security forces believe that one has connections to Hezbe Islami one risks arrest. There is also a risk that people accuse others of having connections to Hekmatyar for personal motives.

ICG was of the opinion that Hezbe Islami does not exist at present as an actual party, but on the other hand is a lose structure of individual levers of armed groups. The source was also of the opinion that the Hekmatyar faction of Hezbe Islami cannot be regarded as an appreciable factor in the resistance against the government, but rather as an irritation…. People who at the present time are active for Hezbe Islami are considered as being at war against the present government on a par with the Taliban supporters. They would not be able to remain in the country without problems."

17. Mr Parker argued that after five years of not being involved with Hezbe Islami those who lived in the appellant's home area would not believe that he and his brother were still active. This may or may not be correct. Our attention has not been drawn to any questions asked of the appellant about this. However, even if those who lived in the area did not suspect the appellant and his brother of continued involvement with Hezbe Islami it does not mean that those involved with the Northern Alliance would have any reason to come to a similar conclusion, particularly if they suspected that many people in the appellant's area were, as Dr Lau said, likely to be involved with Hezbe Islami. The appellant's brother's involvement with Hezbe Islami, as a commander, is likely to mean that he was known outside his home area.

18. The Danish report contains not wholly consistent assessments of the risk facing those involved with Hezbe Islami. At one point it is said that supporters do not have problems with the government if they make it clear that they do not work with Hekmatyar. Some former members occupy high positions in the government. It is said that the question of whether a former member of Hezbe Islami is at risk of persecution depends on his individual history. It is said that risk depends on the connection of the person concerned with Hekmatyar and to what extent that person has been in conflict with powerful people in Afghanistan. Finally, it is said that people who are at the present time active for Hezbe Islami are considered as being at war against the government and on a par with Taliban supporters. In a country where the rule of law has broken down and there is no realistic prospect of an individual establishing his innocence through due process, where there are incentives to detain and ill-treat those suspected of involvement with Hezbe Islami in the hope of obtaining information which may lead to senior wanted men and enormous rewards, there is a real risk that not only those who are genuinely active for Hezbe Islami but those suspected of such involvement, past and present, face similar risks.

19. The Danish report contains varying indications. Dr Lau is clear in his conclusions. On the particular facts of the appellant's case he believes that his fear is well-founded. Normally we might consider that an expert was usurping the functions of an Adjudicator or the Tribunal in reaching such a conclusion. However, we find that Dr Lau has reached his conclusions through proper reasoning and an informed assessment of country conditions.

20. The partial adverse credibility finding is unsafe. In these circumstances, both representatives agreed that the findings of fact were unsafe and we were in no position to remedy the error. A new hearing is required so that clear findings of fact can be made.

21. Because of the conclusion that we must remit this will not be a country guidance case but it is reported for the information relating to Hezbe Islami and in particular the opinions of Dr Lau.

P R Moulden
Vice President