SM (Afghanistan) v The Secretary of State for the Home Department

This is an appeal against the decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 20 May 2010, by which the tribunal allowed an appeal by the Secretary of State for the Home Department (“the respondent”) against an earlier decision of the tribunal on 26 May 2009 (IJ Metzer) allowing an appeal by SM (“the appellant”) against the refusal of the Secretary of State by letter dated 12 November 2008 to grant him asylum. Reconsideration of the earlier decision was ordered on 3 July 2009 on the basis that the tribunal had failed to explain why there would not be a viable option on internal relocation in Afghanistan.

I would decide the case on the first of the points raised, namely the risk to the appellant on return to Kabul of treatment contrary to Article 3 of the Convention, but by way of background I set out the history somewhat more fully.

At the first stage reconsideration a Senior Immigration Judge referred to the findings of the tribunal. He accepted the appellant's evidence that he came from a village in Nangarhar province and that he had been a member of Hizb-I-Islami for the previous ten years or so, albeit only as a cook and not in any fighting capacity. He also accepted that the appellant had been ordered to undertake a suicide bombing mission but was unwilling to do so and that he had sent his family away to a place of safety before arranging to leave the country with the assistance of a paid agent. However, the senior immigration judge also stated:

Mr Saunders, for the Secretary of State, did not seek to suggest that internal relocation would be a realistic possibility in the appellant's case, save to Kabul itself. Thus the reconsideration issue was confined to risk in Kabul and it has been accepted that the risk to the appellant would exist not only in his home area but throughout Afghanistan, save in the capital.

A second stage reconsideration was ordered. The issues to be considered at the stage 2 reconsideration hearing were therefore whether the appellant would be at real risk from Hizb-I-Islami if he were to relocate to Kabul now; if so, whether he would be able to look to the Afghan authorities for a sufficiency of protection against that risk there, and, if he would be able to relocate in safety to Kabul, whether it would be unreasonable or unduly harsh to expect him to do so by reason of his personal circumstances, particularly the learning difficulties from which he suffers.

By letter dated 7 December 2010 the respondent stated that she was minded to agree to the remittal of the case to the tribunal following the determination adverse to the appellant on 20 May 2010 on the basis that there was a material error in the determination because:

When granting permission to appeal to this court on a consideration of the papers, Jackson LJ stated:

In the May 2009 decision the tribunal found a) the appellant was a credible witness in relation to the background to his claim. Reasons for the finding of credibility were stated in some detail; b) he was a national of Afghanistan and a member of Hizb-I-Islami; c) his father had been martyred when fighting for Hizb against the Russians and this created the status for the appellant and other members of his family as an heir to a martyr; d) the appellant's uncle also belonged to Hizb and was killed by them for refusing to carry out a suicide mission; e) the appellant worked for ten years for Hizb-I-Islami as a cook in Afghanistan; f) he left Afghanistan as a result of being required to carry out a suicide bombing which he refused to do; g) the appellant had significant learning difficulties.

Having also considered the in country material, the IJ Metzer concluded that the appellant would have a well-founded fear of persecution for a Convention reason in any part of Afghanistan were he to be returned there. I cite the concluding part of paragraph 30 and paragraph 31:

It is said that the decision to order reconsideration was based on the finding that the determination did not provide “sufficient reasons to justify a conclusion that the appellant would not be able to relocate in safety to Kabul or that, if he could, it would be unreasonable or unduly harsh to expect him to do so”. On the reconsideration, the designated immigration judge found that there was no evidence of a presence on the part of Hizb-I-Islami in Kabul. There was no reason to suppose that the appellant was sufficiently important for attempts to be made to find him in Kabul or that it would be known that he is there.

The tribunal went on to consider whether it would be unduly harsh to expect the appellant to relocate to Kabul. I need not set out the detail of the findings in relation to that. They included a finding that the security situation in Kabul is far from satisfactory but it is not sufficiently bad to make relocation unduly harsh. The tribunal decided that there was no reason to conclude that the appellant will be ill treated because of his intellectual failings. This was the tribunal's conclusion:

For present purposes, the first question is whether the immigration judge, having found that there was, a reconsideration should have been ordered. It could only have been ordered if it was arguable that there was an error of law, as the subsequent tribunal found that there had been.

When considering the submissions of the Secretary of State IJ Metzer referred to the decision in KH [2008] UKAIT 00023 and in some detail to the objective evidence before him. Further references were made under the heading ‘findings’ at paragraph 30. Reference was also made to GS (Existence of Internal Armed Conflict) (Afghanistan) v. SSHD, CG [2009] UKAIT 00010 when the conclusion at paragraph 30 was stated.

Also before I J Metzer was the decision in PM [2007] UKAIT 00089 to which reference has been made at this hearing. What was not before the immigration judge was RQ [2008] UKAIT 00013, a case which was considered in some detail by the designated immigration judge at the second hearing. That was most unfortunate; both parties had been represented on the first occasion, the appellant by a solicitor acting for Refugee and Migrant Justice and the Secretary of State by a Home Office presenting officer. It appears to me that it would have been most helpful to Immigration Judge Metzer in his assessment of the evidence and in the conclusion he reached. Mr Payne, for the Secretary of State, submits that it is for immigration judges to find out about cases and the judge was at fault in failing to have regard to RQ. He may be right about that, but that does not excuse the failure of the Home Office to make the case available to him. Immigration judges have a heavy workload; they can expect to be assisted by the Home Office in having placed before them relevant case law. Other cases were placed before them, as I said, but this significant case, which is a country guidance case heard in 2007 was unfortunately not brought to his attention.

I will refer to it again. Both parties now rely on RQ in their submissions as to whether IJ Metzer erred in law. This court must bear in mind that the tribunal is an expert tribunal; it is the fact-finding tribunal. There were clear and reasoned findings of fact in this case. The question is whether the IJ Metzer’s finding on the evidence was a tenable finding and was sufficiently reasoned. For the appellant, Mr Jacobs has referred to the Afghan COI report dated February 2009, which was before IJ Metzer, and he refers to the statement at paragraph 11.38 in relation to Hizb-I-Islami. It is:

Mr Jacobs has referred in some detail to the case of PM which was before the IJ Metzer, and it does show the continued activity and relevance of Hizb at the time the decision was taken. There is considerable reference to Hizb in the case though the conclusions of the tribunal related to the risk from the authorities to people who were previously insurgents so that the general conclusions of the tribunal are not directly relevant to the issues in this case. The case relied on as establishing the scale of activity of Hizb. At paragraph 33 there is a reference to Hizb having "smaller scale activity " in Kabul. NATO considers that:

Detailed consideration was given in PM to the evidence of Dr Giustozzi. He plainly is an expert witness whose views are treated with great respect and in PM the Secretary of State indicated accordingly and the tribunal found accordingly. While they did not accept his opinions, they accepted the substance of the evidence he was placing before them.

At paragraph 34 it is recorded that he suggested:

“…that there is evidence that remnants of Hizb i Islami have re-established a network throughout the

country over the past three years, but that the network includes many individuals who no longer openly claim allegiance to the party. He suggested in his report that it is the existence of these underground networks which explains why the security services are interested in people with the first and second appellant’s profiles.”

Paragraph 43, his statement is recorded:

Paragraph 48 he stated:

Asked about Hizb-I-Islami action in Kabul, Dr Giustozzi is recorded at paragraph 59 as saying:

At paragraph 66 Dr Giustozzi was asked about the third appellant's possible problems in Kabul. He again referred to Hizb-I-Islami developing networks and how the insurgents are recruiting in cities, not just carrying out attacks but also to build networks.

In paragraph 115 it is said, referring at this stage to a BBC news report:

At paragraph 134 Dr Giustozzi referred to the advent of modern technology. He said:

It is most unlikely that IJ Metzer was treated to the same detailed consideration of PM as this court has been and I have summarised it quite fully. Mr Payne fairly makes the point that the need for Mr Jacobs to go through the case in such detail demonstrates the paucity of the reasoning within the determination of IJ Metzer itself where these points are not taken up in detail. Nevertheless, the decision was before the immigration judge and it does contain references to Hizb and to their activity in Kabul and their modus operandi, and it is likely that the immigration judge had regard to their approach as demonstrated in the case.

I refer at this stage to RQ, though as I have said it was not before the IJ Metzer. Detailed reference to the appraisal of the evidence need not be made. The tribunal did cite paragraph 28.08 of a UNHCR paper which relates to a communication problem which Dr Giustozzi mentioned:

It is the findings in RQ which are material and both parties rely on them. At paragraph 108 the tribunal stated:

At paragraph 109 the tribunal expressed general conclusions. It is conclusion 4 which is material:

Thus, what is required of the tribunal is an assessment of the “real individual risk” in the light of the background information, the oral evidence and other evidence given. Mr Jacobs submits that the IJ Metzer, without specifically saying so, did conduct the very assessment which RQ contemplates. He also submits that there is nothing in RQ which is inconsistent with the decision of the tribunal and I agree with that. The criticism of the tribunal as developed by Mr Payne is substantially a criticism of the alleged lack of reasoning of IJ Metzer when expressing his conclusion.

Mr Payne in his skeleton argument has set out the series of deficiencies in the reasoning of the immigration judge. He failed to identify objective evidence which might support his conclusion that the Hizb were present and sufficiently powerful throughout Afghanistan to pose a risk to someone such as the appellant in Kabul. The tribunal did not rely on or refer to evidence which suggested that resigning from Hizb gave rise to a real risk of persecution. The tribunal failed to make a finding that Hizb were "present" throughout Afghanistan. At best the judge found that Hizb "existed" throughout Afghanistan but made no assessment as to the nature of this existence, whether within Kabul or the areas surrounding Kabul. The tribunal did not conclude that Hizb were active in Kabul and, so far as it did, there was a failure to identify any objective evidence supporting that conclusion.

In his oral submissions Mr Payne's first point was that the decision of IJ Metzer is erroneous in law in that it failed to address the question of whether there was a sufficiency of protection. To establish refugee status it is necessary to establish not only a threat of conduct contrary to the Convention; it is also necessary to show that the authorities will not protect the person against it. It is a case of non-state authorities posing the risk that is put forward.

I do not find merit in that submission. It appears to me that the conclusion of the tribunal in RQ at paragraph 108 accepts that, once the "real individual risk" is established, then there is an acceptance that the authorities in Kabul are not capable of individual protection to the appropriate standard. Mr Jacobs submits that implicit in the reasoning of the immigration judge is a finding to that effect. At the subsequent hearing, though disagreeing with the first tribunal in some respects, it was accepted that, if the necessary risk was established, the principle in paragraph 108 of RQ would apply. In paragraph 13, the designated immigration judge referred to RQ and to the principle that if other matters were established "proper protection from the authorities will not be available".

Based on his written submissions, Mr Payne criticises the finding of the tribunal on the first occasion. It was unclear, he submits, as to the basis on which the immigration judge had reached its conclusion to carry on. The finding in the letter of refusal of asylum by the Secretary of State that the appellant was a "low level member of Hizb" was not confronted by the tribunal it is submitted. I interpose that the immigration judge had the letter before him and he heard submissions. It is clear from his detailed summary of the submissions of the Secretary of State in the determination that those submissions were in mind.

It is important that the judge should explain to both parties why he reached the decision that he did. The decision should be self-contained and should not rely on the subsequent advocacy of counsel, who raised a multitude of points in the country guidance cases, to find why the decision had been reached. While there were references to the COI, Mr Payne submits the references were inappropriate in that they did not refer specifically to Kabul and did not refer to the targeting of defecting members of the organisation. There was no clear finding, he submits, of activity by Hizb in Kabul. The findings necessary to justify the conclusion were not set out in the decision.

I have come to the conclusion that the decision of the IJ Metzer can be upheld and that there was no error of law by him. The findings of fact were conspicuously clear in this case. The judge was referred to PM and to in country material and was familiar with assessing such material and assessing particular cases in the context of that material. He was aware of the submissions being made on behalf of the Secretary of State. He has made no finding contrary to the relevant decision which had not been cited to him; the decision in RQ.

It appears to me that the immigration judge did have in mind the type of assessment of “real individual risk” which the tribunal in RQ properly contemplated. There was evidence before the judge that the risk extended to Kabul and that Hizb remained active, was a significant organisation and had an agenda of its own, including one relating to Kabul. The immigration judge was entitled to give weight to the very long association with Hizb which the appellant had had; he had been working for them for ten years, and moreover he had a long family association with Hizb; his father had been a member and indeed was a martyr of the organisation, having been killed by the Russians while fighting for them during the Russian occupation.

The appellant was formally designated by Hizb as an heir to a martyr. His uncle has also been a member and he too, the judge found, had been tasked to perform a suicide bombing. When he declined to do so he was killed. While the level of the appellant in the organisation (and he was a man of limited intelligence) may not have been a high one, he had a long and close personal family association with it and the act he was requested to do was a very high profile act with potentially very serious consequences.

That being so, there were, in my judgment, sufficient grounds for the immigration judge to conclude that, having refused the request to perform this terrible act on behalf of Hizb, he was a potential for revenge and retribution by them to the extent of infringing his Article 3 rights, if no higher. In my judgment, against that background, in the context of those facts and the in country material, the decision was sufficiently reasoned. I accept that the reasoning was thin and one would, with respect, expect fuller reasoning leading from findings of fact, which had a considerable weight of their own, to the conclusion reached. But in my judgment there was a sufficiency of reasoning and the absence of further reasoning does not create an error of law which allowed his decision to be made subject to a reconsideration which came to a contrary conclusion.

For those reasons I would allow this appeal. It follows that the decision of IJ Metzer stands, and his decision to allow the appeal against the refusal of the Secretary of State to grant asylum is the operative decision.

I agree with my Lord.

As the argument has developed it has become apparent that one can analyse the task which faced Immigration Judge Metzer by formulating four questions. The first question is: was the appellant at risk of retribution from Hizb-I-Islami? The immigration judge's answer to that question was clear when he said in paragraph 31 that he found that the appellant has:

The immigration judge has there made his finding and, albeit briefly, given his reason. Was that finding one which was properly open to him? In my judgment there is only one possible answer: the finding is impeccable, bearing in mind not merely the totality of the material before the immigration judge but the key factors which my Lord has identified: first, the fact that his father had fallen as a martyr in the previous Afghan war in circumstances leading to the appellant being recognised by the organisation as the heir of a martyr; second, the appellant's long association with the organisation albeit in the lowly role of a cook; third, the fact that he had, as the immigration judge found, refused to carry out a direct order to carry out a suicide bombing; and, fourth, and far from being the least significant, the fact that the fate which befell his uncle in similar circumstances was to be killed by the organisation.

The second question can be posed in this way. Assuming, in answer to question number 1, that the appellant was at risk from the organisation, was that a risk in Kabul as well as elsewhere in Afghanistan? The immigration judge answered that question when in paragraph 30 he found that the appellant would "have a well founded fear of persecution ... in any part of Afghanistan"; and it is quite clear from the context that the immigration judge was there intending to refer to Kabul.

It might be said that the immigration judge has failed to spell out adequately his reasoning for that conclusion. It hardly needed spelling out. The reason was obvious and, in the light of his previous findings, well justified. Somebody who had betrayed the organisation in the way in which the appellant had would in terms of his own personal position, the immigration judge was fully entitled to find, be at much at risk of retribution from the organisation in one part of Afghanistan as in any other part of Afghanistan, including Kabul.

The third question can be formulated in this way. Given the willingness, as the immigration judge implicitly found, on the part of the organisation to harm the appellant anywhere in Afghanistan, including in Kabul, did the organisation have the capacity to do so? Putting the point slightly differently, was Hizb-I-Islami operating in Kabul? That, in contrast to the previous questions, was a matter dependent not so much upon the immigration judge's evaluation of the particular personal circumstances of the appellant but a matter to be appraised in the light of the objective and background country material.

The immigration judge did so and, as it seems to me, found as a fact that Hizb-I-Islami would have that capacity. I refer to the immigration judge's finding in paragraph 30 that the appellant had a well-founded fear of being persecuted in any part of Afghanistan; that is to say a well-founded fear that Hizb-I-Islami would manage to reach him in any part of Afghanistan. So the finding, it seems to me, is clear; the reasoning is apparent and set out by reference to the country material. Does the country material justify that finding? We have been taken in great detail through the material, both the material in the COI report and the relevant information in PM, both of those bodies of material being before the immigration judge, as well as the relevant material in RQ, which was not.

Mr Payne for his part submits that the material to which the immigration judge referred was not sufficient to justify his findings. Mr Jacobs in response asserts that it was and seeks to bolster his case by saying that, in any event, had the immigration judge had the benefit of access to the further information set out in RQ, it would merely have reinforced the evidential basis for his finding.

In my assessment, the material which was before the immigration judge and to which he referred was adequate and justified the finding he made in relation to the ability of Hizb-I-Islami to operate in Kabul as elsewhere.

The fourth question arises in this way. The risk to the appellant was not, as will be obvious, a risk at the hand of state agents; it was a risk at the hands of non-state actors. Therefore, if he was to obtain the protection of the Convention, it was necessary to demonstrate an inadequacy of state protection. It is at this point that the immigration judge in his reasoning is at his thinnest and most vulnerable. What was his finding? Mr Jacobs has to accept that there is no explicit finding. His submission, which I find compelling, is that by necessary implication the immigration judge did find, must have found, that there was an inadequacy of state protection, because he formulated his overall conclusion in paragraph 31 as being that the appellant had "a well-founded fear of persecution for a Convention reason", namely being targeted by Hizb-I-Islami.

The immigration judge is an experienced judge in a specialist tribunal who is to be taken to understand the law which he is entrusted to apply and the legal and jurisprudential framework within which he operates unless, by his own words set out in his determination, he has demonstrated the contrary.

It seems to me that Immigration Judge Metzer could not but have had very clearly in mind that in order to reach his ultimate conclusion he had necessarily to satisfy himself, to the appropriate standard, of the inadequacy of state protection. Therefore his finding is by necessary implication to be found in his determination.

The vulnerability is in terms of the poverty of his reasoning, but one has to have regard to the realities here. Mr Payne, understandably from his perspective, has laid considerable emphasis upon the failure of the immigration judge to have regard to RQ, a submission which I accept the Secretary of State is entitled to put forward before us, albeit that the Secretary of State's own presenting officer failed to bring that authority to the attention of the immigration judge. But, as my Lord has pointed out, and I will not repeat the passages, in paragraph 108, repeated in paragraph 109(7) of the decision in RQ, which, it is common ground, is the currently operative country guidance case, the considered view of the tribunal is that where "a real individual risk is established" -- and that is a reference back as it were to the first three of the questions I have identified -- the evidence remains, as they put it, "that the authorities in Kabul are not capable of individual protection to the appropriate standard".

The reasoning may be threadbare; the analysis may be threadbare; but the reality is that the immigration judge, having, as I have said, by necessary implication found that there was an inadequacy of state protection, was, as RQ demonstrates, more than entitled to come to that conclusion. Indeed, given his findings in relation to the previous three questions, it might be thought that if he had come to any different conclusion on the question of state protection such a decision would have been highly vulnerable to attack on the basis of evident inconsistency with the decision in RQ.

In my judgment, for those reasons, which I emphasize are merely additional to the reasons given by my Lord with which I am in full agreement, I agree that this appeal should be allowed.

I agree with the reasoning of both their Lordships and I too would allow this appeal.