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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Eassie
Lord Wheatley
Sheriff Principal Bowen
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XA114/06
[2007] CSIH 69
OPINION OF THE COURT
delivered by LORD EASSIE
in
APPEAL
under section 103B of the
Nationality, Immigration and Asylum Act 2002
by
N.A.K.
Appellant;
against
A decision of the Asylum
and Immigration Tribunal
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Act: Forrest; Drummond Miller
Alt: Miss Carmichael; Solicitor to the
Advocate General for Scotland
5 September 2007
[1] This is an
appeal under section 103B of the Nationality Immigration and Asylum Act 2002 as
amended by the Asylum and Immigration (Treatment etc) Act 2004 which proceeds
with leave of the Asylum and Immigration Tribunal.
[2] The appellant
is a Pushtu speaking Afghan. He arrived
in the United Kingdom with his 12 year old son, who
unfortunately is blind, on 12 October 2004 and immediately claimed asylum. On 28 November 2004 the Secretary of State refused the
appellant's claim for asylum and also decided that his removal to Afghanistan would not be contrary to the United Kingdom's obligations under the European
Convention on Human Rights. That
decision was appealed and on 23 February 2005 an adjudicator upheld the
appellant's claim to asylum and also his contention that his removal to Afghanistan would involve a breach of the United Kingdom's obligations under the Human Rights
Convention. Thereafter the Secretary of
State appealed the adjudicator's decision to the Tribunal. That appeal was successful principally on the
procedural ground that the adjudicator had refused a Home Office request for an
adjournment. The matter was remitted for
full reconsideration by an Immigration Judge.
The re-hearing took place on 3 April 2006, the decision of the Immigration
Judge being notified on 13 April 2006.
The Immigration Judge rejected both the request for asylum and the human
rights contention. The present appeal
proceedings are against that decision of the Immigration Judge.
[3] For present
purposes we do not need to rehearse the appellant's account in full
detail. But a brief summary is as
follows.
[4] In 1998, when
the Taliban were largely in control of Afghanistan, the appellant joined the
Hizbi-Islami (the Party of Islam) which was under the leadership of Gulbuddin
Hekmatyar. Under that leadership the party
or faction of Hizbi-Islami was opposed to the Taliban. It sought a more moderate Islamic
system. Initially the appellant's role
was to guard secret meetings of the Hizbi-Islami at which usually about 10 or
12 people might be present. However, in
the year 2000 the appellant was promoted to the position of a commander within
the organisation with some 60 or so militants or guards under his command. During that year, on the occasion of a larger
gathering of Hizbi-Islami members, the meeting was attacked by the Taliban and
in the ensuing battle between the factions some members of the Hizbi-Islami
were killed and wounded were sustained on both sides.
[5] Following
that episode the appellant and some others of the Hizbi-Islami went into hiding
from the Taliban. After the removal of
the Taliban from power following the invasion of Afghanistan by USA forces in late 2001 the Hizbi-Islami
opposed those forces and the new government installed under their aegis. The Hizbi-Islami began a struggle against the
new government. In October or November
2003 the appellant's father and brother were killed, at his home, by
"Government people" who had come to his home seeking the appellant's
whereabouts. The appellant's father had
been an active member of Hizbi-Islami and his brother an affiliate. Following that incident the appellant decided
to leave his province and seek refuge, in hiding, in the house of a friend but
at the beginning of 2004 a bomb was thrown into the house , wounding the
friend's son. The appellant then decided
that he should flee Afghanistan and made arrangements involving the
payment of money to an agent.
[6] The appellant
also explained that, in addition to what might be described as the wider politics, there is a land dispute in the background. Three named individuals in political
opposition to the appellant and his father were in dispute over ownership of
some of the appellant's family's land.
These individuals obtained favour in the new Government by making
allegations against the Hizbi-Islami and especially the appellant. In his absence they were successful in
obtaining possession of the disputed land.
[7] To put that
summarised account into a broader context, it is apparent from the background
materials before the Immigration Judge, to various parts of which we were
alerted in the "reading list" suggested by counsel for the appellant, that
following the demise of the pro-Soviet regime (but prior to the appellant
joining the Hizbi-Islami) the Hizbi-Islami was very active in the battle for
power, its opponents including both the Taliban and also the grouping known as
the Northern Alliance. (At paragraph 75
of his decision the Immigration Judge refers, but in a different context, to inter alia an account in a report by the
Afghan Justice Project of the part played by the Hizbi-Islami in the fighting
for the control of Kabul and the indiscriminate rocket firing involved
therein.) As is generally known, the
Taliban were in the event ultimately successful, at least to some considerable
degree, in obtaining control of Kabul and the rest of the country until
the American bombardment and invasion in the autumn of 2001. Following the displacement of the Taliban
from government in Kabul and the moves to establish a new government with
occidental support, it appears that a split occurred in the Hizbi-Islami with
some members going over to the new regime while others remained firmly loyal to
Gulbuddin Hekmatyar, who is understood still to be in hiding. That remaining faction, under his guidance,
is seen by the current regime under President Karzai as a militant
opponent. The Immigration Judge notes in
his decision (para. 24) that the appellant has not switched his allegiance from
the section of the Party loyal to Gulbuddin Hekmatyar.
[8] Against that
background the appellant considers that he is under threat were he to return to
Afghanistan from both the Taliban, who, though no longer holding power, remain
a significant force, and also from the forces of the new Government.
[9] The
Immigration Judge expressed certain adverse views on the credibility of the
appellant on the basis that in the course of his oral evidence (given via an interpreter) he had said that the
Hizbi-Islami was not a violent group and had not attacked coalition forces in
Afghanistan, whereas it was evident from the background materials that the
Hizbi-Islami had been and was a violent organisation. However, despite those reservations, the
Immigration Judge was well prepared to accept the appellant's evidence that he
had been a commander in the Hizbi-Islami.
Having made that acceptance, the Immigration Judge further concluded
(paragraph 82) that given the violent nature of the Hizbi-Islami and the
appellant's prominence in its organisation there were serious grounds for
considering that the appellant had committed a serious non-political crime
outside the country of refuge. The
Immigration Judge went further and inferred that the appellant had indeed
committed such a crime. On that basis
the Immigration Judge held that the appellant was excluded from the protection
of the Refugee Convention by virtue of Article 1F(b).
[10] Before us
counsel for the appellant made plain that the Immigration Judge's conclusion
that the appellant was excluded from the protection of the Refugee Convention
by Article 1F(b) was not under challenge. This appeal is directed towards the
Immigration Judge's rejection of what might be termed the Human Rights
Convention claim.
[11] The
Immigration Judge rejected the latter claim for protection on a basis which
might be very shortly described as being the lack of evidence of a specific
factual basis, apart from membership of Hizbi-Islami, for thinking that the
appellant might be at real risk of ill-treatment from the new Government. As respects risk from the Taliban, the
Immigration Judge recognised their presence in the south and east of Afghanistan but thought that there was no
evidence to suggest any real risk to the appellant were he to be returned to,
and at least by inference, remain in Kabul.
[12] Counsel for
the appellant advanced a number of criticisms of the decision of the
Immigration Judge on this aspect of the case before him. In particular, among those criticisms was a challenge
to the soundness of the way in which the Immigration Judge had approached the
decision of the Immigration Appeal Tribunal of 29 July 2004 in RS (Hezebe Islami - expert evidence)
Afghanistan [2004] UKIAT 00278 which had been placed before the Immigration
Judge by the appellant. In respect of
the submission based on that case which was advanced by the appellant, the
Immigration Judge says, at paragraph 93 of his decision:
"In that case there was an expert
opinion from Dr. Lau (who clearly impressed the Tribunal) that the particular
Appellant was at real risk of serious ill harm.
I note that the Appellant in RS
had been arrested, interrogated and mistreated by the Northern Alliance.
That is a very different factual matrix to the facts before me in the
present case. I therefore do not find
the case of RS particularly
helpful in assisting me as to whether or not there is a real risk to the
Appellant in this case."
The treatment by the Immigration Judge of the decision of the
Immigration Appeal Tribunal in RS was
the principal ground upon which the Asylum and Immigration Tribunal gave leave
to appeal to this court.
[13] In RS the Immigration Appeal Tribunal had
the benefit of both the written opinion of Dr. Lau and his oral evidence, which
included cross-examination on its contents.
At paragraph 11 of its decision the Immigration Appeal Tribunal
says:-
"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."
The Immigration Appeal Tribunal thereafter set out the full
terms of Dr. Lau's written opinion.
While the opinion was of course instructed as respects the particular
case of the appellant in RS it
necessarily expresses general expert opinion evidence on the situation in Afghanistan with respect to present and past
adherents of the Hizbi-Islami. The
particular circumstances of RS were
that the arrest and interrogation of RS and
his brother in February 2003 occurred long after the brothers had ceased active
involvement in the Hizbi-Islami and the plausibility of that account had been
questioned by the decision-taker in that case.
We note however the terms of the following paragraphs from Dr. Lau's
opinion:
"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 [sic] 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-Islami. In my opinion
the appellant's fear in this regard is well-founded."
[14] In so far as
the Immigration Judge dismissed the present appellant's fears that he would be
at risk from the Taliban on the view that the appellant would be safe in Kabul, we note the terms of paragraph 16
of Dr. Lau's opinion which are thus:
"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."
Additionally, we note the terms of part of paragraph 17:
"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."
[15] As was
submitted by counsel for the appellant, it is not evident from the terms of the
decision of the Immigration Judge whether the Immigration Judge gave
consideration to what was said by Dr. Lau respecting the prevailing state of
affairs in Afghanistan and the risks arising generally to members and former
members of the Hizbi-Islami from inter
alios agencies and parties such as those referred to in paragraph 11 of the
opinion with the incentives to which reference is made in paragraph 14 of the
opinion. The Immigration Judge appears
to set apart the terms of the decision of the Immigration Appeal in RS on the basis of what he describes as
its "different factual matrix", without making any reference to the expert views
of Dr. Lau on matters more generally.
For her part, counsel for the respondent stressed that there were
factual differences between the situation of the appellant in RS and the appellant in the present
case. Given those factual distinctions
it was understandable, she said, that the Immigration Judge might discard RS as being of no assistance.
[16] For our part
we note that the Immigration Appeal Tribunal (paragraph 2) stated that
because they required to remit for reconsideration, the case of RS would not be a country guidance case
but that it was reported "for the information relating to Hezbe Islami and in
particular the opinions of Dr. Lau" (para. 21). Reporting the case for that reason is
consistent with our view that Dr. Lau's opinion is not wholly "fact specific"
to the position of the appellant RS
but contains expert guidance of general utility in considering the position of
former members of the Hizbi-Islami.
Self-evidently cases involving Hizbi-Islami applicants will have factual
differences. In RS the appellant had been simply a member of Hizbi-Islami (although
his brother had been a commander) and both had abandoned all political activity
following the Taliban's assumption of power.
By contrast, the present appellant's evidence of having been a
commander, with the prominence which that involves, was accepted by the
Immigration Judge. His flight was
preceded by the death of his father and brother, who had also been members of
the Hizbi-Islami, and the bomb attack on the house in which he had been
staying. We have difficulty in seeing
that these differences of factual detail can elide the need to give
consideration to what is said by Dr. Lau as to the situation, in general, of
members past and present of the Hizbi-Islami.
[17] In so far as the
present appellant fears that he is at risk not only from agencies acting for
the current regime, but also from the Taliban, we note that in dismissing the
latter risk on the view that the present appellant might be safe in Kabul the
Immigration Judge appears to make no reference to Dr. Lau's views on internal
relocation.
[18] In these
circumstances we have come to the conclusion that in apparently setting apart RS on the basis that there was a
particular difference in factual matrix, the Immigration Judge erred, and that the error can be categorised as an error of
law. The exercise of distinguishing RS on its particular facts was not, in
our view, the appropriate exercise.
Given particularly that the Immigration Appeal Tribunal decision was
expressly reported for the general guidance which might be derived from Dr.
Lau's expert opinion evidence respecting membership of the Hizbi-Islami, which guidance
we do not see to be irrelevant to the present case, we consider that the
Immigration Judge ought to have addressed it on that basis. He does not appear to have done so. Put another way, it appears that the
Immigration Judge may not have given proper consideration to a relevant factor,
namely that general guidance. We
consider that the appeal thus succeeds.
[19] Counsel for
the appellant did not suggest other than that, if the appeal were successful,
there should be a remit to the Asylum and Immigration Tribunal for a further
reconsideration. Counsel for the
respondent agreed that, on the hypothesis of the appeal being successful, such
was the appropriate disposal. But since
the rejection of the claim for asylum under the Refugee Convention by reason of
Article 1F(b) was not challenged, the reconsideration
should be limited accordingly.
[20] Given that we
are persuaded that the appeal succeeds and that parties are agreed that
reconsideration is the appropriate procedural outcome, it is unnecessary for us
to consider such other criticisms as were advanced by counsel for the appellant
respecting the decision of the Immigration Judge.
[21] We shall
accordingly allow the appeal against the decision of the Immigration Judge in
so far as the Immigration Judge dismissed the appeal on Human Rights grounds
and we shall remit to the Asylum and Immigration Tribunal for reconsideration
of the appellant's case respecting those grounds.
