AJB
Heard at Field House		APPEAL NO HX10822-2002	
On 28 August 2002 		LG (Maoist-Ex-Military) Nepal [2002] UKIAT 04334 	

IMMIGRATION APPEAL TRIBUNAL
	
                                                                                  Date Determination notified:
                                                                                             23-9-2002
                                                                                          ..........................................	

	Before:		

A R Mackey (Chairman)
Mr M L James
Mr A G Jeevanjee
	
Between	
	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	
	
		APPELLANT	
			
	and		
			
LAL BAHADUR GHALE
	
		RESPONDENT (CLAIMANT)	

Representation:
For the appellant:	Mr T Wilkie, Home Office Presenting Officer.
For the respondent (Claimant): Mr P Anim-Addo, of Counsel, representing Kothala & Co. Solicitors.

DETERMINATION AND REASONS

1.	The Secretary of State appeals, with leave, against the determination of an Adjudicator Mr Jonathan M Lewis, promulgated 29 May 2002. In that determination the Adjudicator allowed an appeal both on refugee and human rights grounds against a decision of the Secretary of State who had refused leave to enter and an asylum claim.

The Adjudicator’s determination:
2.	After hearing evidence from the appellant and cross-examination, the Adjudicator found the appellant had given a truthful account. He noted that the appellant had been born in 1957 and had served in the Indian Army from 1974 to 1992, retiring with the rank of Sergeant. He then returned to his home and wife and two children in Nepal, and began drawing a pension from the Indian Army and worked on his land as a farmer. He had never been involved in politics.

3.	In May 2001, the appellant received the first of four visits from nine or ten members of the Maoist insurgence, known as the “Maobadi”. They had found out the appellant was an ex-soldier and pressured him into joining the Maobadi, so that he could train them in the use of firearms, military tactics and intelligence. The appellant was not prepared to join, both on moral grounds, but also did not want to contribute to the bloodshed of innocent people. He did not refuse outright, because he knew this would put him in danger. He therefore prevaricated. He was threatened that if he did not join, he would be killed. The appellant however, did not attempt to seek protection from the police, considering that they, themselves, were infiltrated by the Maobadi, and that given that the Royal Family had been killed and there was a national state of emergency, with everyone wishing to protect their own lives, he did not consider that the police would listen to them. He was also aware of a number of other former army personnel who had been targeted in a similar fashion, and had either fled or been killed. After the fourth visit by the Maobadi, he concluded it was only a matter of time before he would be killed, and so he decided to flee Nepal. He left on 2 November 2001 for India, and then made his way to this country. He considered that the Maobadi were operating all over Nepal, and thus, there was nowhere that was safe to him.

4.	The Adjudicator’s determination is a short one. However, he does refer to background evidence on the situation in Nepal, including the CIPU Report of April 2002, and the US Department of State Report. He goes on to conclude that the appellant faced a real risk of being murdered by the Maoists, as an “enemy of the revolution”, because of his refusal to place his military experience at the disposal. He considered that fear was a well founded one. The Maobadi, he considered, were non-state actors, and against the background information, the authorities in Nepal he considered were unable to afford the appellant “any, let alone sufficient, protection.” He also considered there would be a breach of Article 3 of the ECHR.

The appellant’s submissions:
5.	Mr Wilkie relied on the grounds of appeal submitted, which were, that there was sufficiency of protection for the appellant from the Nepalese Government as the risk to this appellant had been identified as being from non-state actors. The other ground of appeal is that the Adjudicator had failed to consider that an internal flight alternative was available to this appellant.

6.	On the first ground, he claimed that from an assessment of the country of origin information that was placed before us, there was evidence of a determination by the Nepalese authorities to meet the Maoist threats and that the army and the police in Nepal were determined to stamp out the Maoist rebel activities.

7.	The objective information placed before us consisted of:

•	The United States Department of State Country Report on Human Rights Practices 2000.
•	A report dated March 2002 from the Office of the Commissioner General for Refugees and Stateless Persons – Belgium: “Mission to Nepal – 21 January to 9 February 2002”.
•	The CIPU Report – Nepal – Extended Bulletin 4 (July 2002).
•	News releases from Amnesty International, May and June 2002.

8.	Mr Wilkie referred us to the extended Bulletin 4, paragraphs 3.8, 3.14, and 3.15. These state that the government has claimed results from military offensives since November [2001] with some 6,000 Maoists surrendering at the end of December 2001. It also reports the army moving against the Maoist guerrillas in February 2002 after almost 400 people were murdered in the week before that. Also reported is the Nepalese Parliament’s agreement to extend the state of emergency for three months from 22 February 2002.

9.	We were also referred to paragraph 4.20 which reports the police force being supplemented in August 2001 and joint operations between Paramilitary Police Force and the Royal Nepal Army.

10.	He submitted that had this appellant reported the incidents, where he had been targeted by the Maoists and pressured to join them because of his military background, to the authorities in Nepal then, logically it was nonsense to suggest that the authorities would not take action. He submitted the objective information indicated that the Nepalese authorities would deal with such threats effectively. The conclusions of the Adjudicator in this regard therefore he submitted were wrong.

11.	In relation to the Internal Flight Alternative (IFA) he submitted that it was unlikely that this appellant would be pursued by the Maoists if he moved to another part of Nepal. This had been given insufficient consideration by the Adjudicator. The appellant was in a situation where, despite various threats had been made to him over a period of several months, there was no evidence of any actions taken to pursue him further. In this situation, the appellant had available to him, the option of moving to a safe area. Mr Wilkie acknowledged that there were parts of Nepal (in the mid-west) where the Maoists had strong elements of control, but, there were other parts of the country that could be used as a place of relocation by the appellant. It would not be unduly harsh for him to go there. In this regard, he referred us to the Belgium Report, at page 13, where it states:

“Since getting a clear view of the present situation in the country turned out to be very difficult, the office of the Commissioner General, during its mission, mainly focused on the political situation and the situation on the level of human rights before the state of emergency had been proclaimed, all the more so because most of the Nepalese asylum cases are situated in this period.

This Report does not examine the violations of human rights by the Maoist Rebels thoroughly.

The office of the Commissioner General hereby wants to state that it is very conscious of the violations committed by the Maoists, that have been denounced and condemned by all the contacts during the mission.

Since this problem is only a marginal aspect in the Nepalese asylum cases (given that most asylum seekers claim that they are only persecuted by the Nepalese Government), this Report will not deal with this problem.

We can however state that Nepalese people who declare that they are afraid of being persecuted by the Maoists do have the possibility of internal flight.

Within this group, defected Maoists, who previously occupied an important post within the Party or within one of its satellites, do run a higher risk of being persecuted by Maoists, even in the big cities.”

12.	He stressed the last two sentences of the above quote as being highly relevant. Also in a footnote to the Report he noted it states that during the mission “we could also see that Kathmandu is still a safe city”.

13.	Mr Wilkie further submitted that it would not be unduly harsh or unreasonable for this appellant to relocate to other parts of Nepal away from his home district, as he was clearly from his army background, a person who had moved around in the past and been able to equip himself satisfactorily in different areas. 

14.	In summary therefore, he submitted we should allow the appeal.

The claimant’s submissions:
15.	Mr Amin-Addo submitted that the acceptance of credibility by the Adjudicator, was strongly in favour of his claim, and that the appeal appeared to be a second attempt to review the situation. He submitted that the Adjudicator has referred to the objective country information and concluded that this appellant would not be able to obtain a sufficiency of protection against the Maobadi on return to Nepal. He referred us to an Amnesty International Report of April 2002 “Nepal: Lives must be protected during coming strike”, this news service report concludes with the following statement:

“Since the start of the “Peoples War” there has been increasing concern that the authorities have failed to impose strict limitations on the use of force and firearms by the security forces or to take appropriate actions against abuses. This concern has heightened after the army was called out and the state of emergency imposed in late November 2001. Since then the number of alleged unlawful killings have increased dramatically. The reported incidents have included killings of civilians in reprisal for the killing of police and army personnel by members of the CPN (Maoist): killings of armed members of the CPN (Maoist) in circumstances where they could have been taken into custody or where they already had been taken prisoner, and avoidable use of lethal force.”

16.	Specifically, he submitted that this appellant would be targeted as an ex-soldier, the Maobadi were in need of his military skills and thus, highly desirous of his services. He submitted that the objective information indicated there were a number of abuses still continuing and that he would not be able to access sufficiency of protection from the state. 

17.	On the issue of relocation, he submitted that there were problems for persons, such as the appellant, all over Nepal, and that the state authorities were too busy protecting themselves to take actions to protect a person such as this appellant. He submitted that if the Maoists were so rampant, and that the police could not protect themselves, it was incorrect to assume that the appellant himself, as a mere individual could obtain protection. He noted the comments in the Belgian Report as to the IFA possibility, but submitted that each case must turn on its own facts, and that given that this appellant was an ex-soldier, the Maoists would still continue to target him for his services. Thus, the real risk to him remained and he would not be able to access meaningful protection from that risk. 

18.	In reply, Mr Wilkie acknowledged that credibility was not at issue and that there was still violence being carried out in Nepal, but, that the threats from the Maoists were reducing and must be seen against the commitment by the authorities to stamp out the terrorist activities. The appellant was thus in a situation where he could either access meaningful protection from the state and/or an internal flight alternative was available to him. 

The issues:
19.	We found the issues before us to be:

(a)	Either from the determination of the Adjudicator, or from other objective information before us, is there a sufficiency of protection available to this appellant against potential risks to him on return to Nepal from the Maobadi? Alternatively,
(b)	If this appellant has a well founded fear of persecution in his home district in Nepal, is there an internal flight alternative available to him, and if so, would it be unduly harsh or unreasonable for him to relocate elsewhere in Nepal and avoid the risks of persecution or maltreatment within the provisions of Article 3 of the ECHR?

Assessment:
20.	The Adjudicator in this matter found the appellant credible and that credibility assessment is not challenged by the Secretary of State in this appeal. Given that acceptance of credibility, we find that, consequently, it is accepted that there is a real risk of serious harm to this appellant should he be returned to his home district in Nepal which he described as Makonpur, Chepakot District, Kaski. The Adjudicator found that the appellant was thus at a real risk from the Maobadi in that area. He went to find that the Maobadi operate throughout Nepal, and that from his assessment of the country information, the appellant would be at a real risk of being murdered by the Maoists as an enemy of the revolution. In relation to the first issue, as to whether the appellant, being a person in fear of a non-state actor (Maobadi) could access sufficiency of protection, the Adjudicator merely stated that “… from the background evidence, the authorities are unable to afford the appellant any, let alone sufficient, protection.” Unfortunately, he does not go into any detail as to the reasons why he concludes there is an insufficiency of protection. 

21.	At this point, we remind ourselves of the accepted law in relation to persecution from non-state actors, and that in such a situation, persecution can only be made out if the facts established both serious harm, and an absence of state protection. This is of course noted in Professor Hathaway’s book, The Law of Refugee Status (Butterworths, 1991) at 125 where he states:

“… in addition to identifying the human rights potentially at risk in the country of origin, a decision on whether or not an individual faces a risk of “persecution” must also comprehend security of the state’s ability and willingness effectively to respond to that risk.”

22.	This test was applied succinctly in the decisions of the House of Lords in Shah [1999] 2AC 629 (HL) and in Horvath [2000] 3WLR 379 (HL). The formula in those decisions has been expressed as: Persecution = Serious Harm + The Failure of State Protection. We have carefully considered the submissions on state protection offered in Nepal that were presented by Mr Wilkie, and indeed, gone on to consider all of the objective country information that was before us. We agree that the objective country information does indicate that the government, army and police force in Nepal, are applying significant effort to confront the Maoist “Peoples War”, or interaction. Balanced against those activities we were directed to by Mr Wilkie, we must also note that the violence and conflict that has been perpetrated by the Maoists, is of such a severe nature that, a state of emergency, which was declared in November 2001, has been continued and we understand, is still operative. The mere fact that the state of emergency continues, indicates the commitment to confront the problem, but also implies that the Maoist threats are certainly not under control of the authorities to the extent, that there is a sufficiency of protection, as envisaged in the decision in Horvath. Indeed, the CIPU Report for July 2002, indicates that the six-year war with the Maoists has seen the killing of some 2,000 people, the massacre of policemen and soldiers, and only a small number of some 200 Maoists actually captured during this period. The same Report indicates army actions being taken against Maoists to the extent that there is now a policy of shooting on sight. At paragraph 3.16 of the CIPU Report, it states the political violence continued as at the end of March 2002 with a bombing in Kathmandu in March 2002, where 25 people were injured. 

23.	In addition, while it states that additional paramilitary armed police have been created to supplement the police force in 2001, the police themselves, have been targeted by Maoist armed groups, with over 100 policemen killed in the “People War” by May 2001. It also reports at paragraph 4.21, that: “Between November and December 2001 over 100 security personnel, mainly policemen were killed.”

24.	The Belgian Report also is of assistance and, while we note, that it is written from the viewpoint of assessing asylum claims by Maoist sympathisers (rather than the opposite, which is the situation for this appellant), it does also indicate that the strength of the Maoist groups are very real. At page 17 of the Report it notes that of the 75 districts in Nepal, some districts are struck harder than others by the battle between the rebel army of the Maobadi and the Nepalese police and army. A number of districts are then listed, including several districts where the Maoists are stated to be completely in control, (with the exception of district headquarters, where the police and army are still stationed). It also states:

“The local Nepalese police are the first target of the armed attacks by the Maoist rebels. 

Due to a shortage of men, and of modern weaponry and means of communication, and also because of the very difficult war against a guerrilla army – which carries out targeted attacks very unexpectedly, and then disappears without trace –, the police are said to be contending with frustration and demotivation.

Reportedly, this frustration has driven the police to punish a lot of local citizens – who did not engage in military activities, but who have lent support to the Maoists (forced or not) these “supporters” of the Maoists risk being persecuted in these districts just because the police is apparently not able to deal with the real – militant – Maoists.”

25.	We do note that the appellant’s home district of Kaski is not listed as one of the districts where the Maoists are in control. However, we are satisfied from the objective information that there is strength in the submission put forward by the claimant’s Counsel, Mr Anim-Addo, that the police and army authorities in Nepal are significantly occupied in their own protection to the extent that it would be unreasonable to expect them to provide protection for an individual such as this appellant. There is also realism in the argument that he would be reluctant to approach the police for fear of being suspected as a Maoist himself.

26.	We are satisfied that in the current situation, given the relative profile of this appellant, which would not be seen as significant by the authorities, that there simply is not a sufficiency of protection available to him by the authorities in Nepal. The commitment by the Nepalese authorities to confront the Maoists threats appears, at this time, to be very much at the level of the state of emergency and “civil war”, rather than in the protection of a deserving individual.

27.	The submission, that there is a sufficiency of protection for this appellant, is therefore rejected. We find, that as there is both a real risk of serious harm on return to his home district, and that sufficiency of protection is not available, that there is a well founded fear of persecution on his return to that district.

28.	That risk is for a Convention reason, namely his imputed political opinion that he is against the Maoists. This is clearly a Refugee Convention reason.

29.	We now turn to the second submission as to whether an Internal Flight Alternative is available to this appellant. Mr Wilkie was not specific in this regard as to which alternative site in Nepal, the appellant could safely relocate to, apart from a generalised reference to cities such as Kathmandu. 

30.	From an assessment of the objective country information, we must of course note at the outset, that several districts within Nepal that are actually controlled by the Maoists themselves. Clearly the appellant would not be expected to relocate to those areas. The issue before us, is therefore if this appellant were to relocate to a place such as Kathmandu, whether he would be able to access meaningful protection in that site, and whether it would be unduly harsh, or unreasonable to expect him to relocate. While we agree that this appellant is a mature man, who has been in the Indian army for many years and thus, the prospect of relocation is not one that subjectively would by unduly harsh to him, we must also look at the reality of his own predicament. He is a person who has spent a considerable career (1974 – 1992) in the army, he retired with the rank of sergeant. He is 45 years of age. It is accepted that he has been targeted for his usefulness to the Maobadi in training the Maobadi forces in firearms, military tactics and intelligence. Given this situation, and the fact that he was singled out in his home district as an ex-soldier, and pressured to join the Maobadi, we consider that there is still a real risk to this appellant, should he relocate to other parts of Nepal, including Kathmandu. He is a person who is of value to the Maobadi if he can be recruited. In this situation, we do not consider that his risk of persecution can be alleviated by relocation to another part of Nepal, and IFA is therefore unreasonable and unrealistic in his situation.

31.	We therefore also reject the submissions that an IFA is available to this appellant.

Decision:
32.	We consider that the decision of the Adjudicator, whilst unfortunately too brief in its conclusions, is a correct and sustainable one. We find that the Adjudicator was correct in concluding that this appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention 1951 and in addition to that, there is a real risk of harm to him that would constitute a breach of Article 3 of the ECHR if he were returned to Nepal.

33.	The appeal is therefore dismissed.

A R Mackey
Vice President