HK v The Secretary of State for the Home Department

The appellants are three Afghan children. Each has discretionary leave to remain granted in accordance with the Respondent’s policy on unaccompanied child asylum seekers for another two years at least. They were refused asylum and humanitarian protection on 6 May 2009, 8 May 2009 and 21 August 2009 respectively. Each appealed to the Asylum and Immigration Tribunal (“AIT”) and each had his appeal dismissed.

The first appellant’s appeal was heard by Immigration Judge Obhi on 3 July 2009. The Immigration Judge found that that appellant was not at risk of being taken by the Taliban and further found that he had a surrogate family in the form of his uncle and aunt, and that if returned to Afghanistan it was unlikely that his uncle would refuse to care for him. The Immigration Judge also looked at the situation with regard to humanitarian protection but found that there was no evidence of any individual threat to this appellant which was any greater than that which the vast majority of citizens in Afghanistan faced.

With regard to the second appellant, his appeal was heard by Immigration Judge Buchanan on 12 October 2009. The immigration judge found that the appellant was not at specific risk of being abducted or exploited by the Taliban and found that there was no reason why he could not continue to live with his mother and paternal uncle if he were to be returned. The Immigration Judge also found that this appellant had not demonstrated any specific individual threat to him that would not be encountered by other young Afghans of his age.

The appeal of the third appellant was heard by Immigration Judge Deavin on 14 July 2009. In a very brief determination the judge found that the appellant lived in a village in north-east Afghanistan and that there was no sound evidence of any problems encountered with the Taliban or of any forced conscription. The Immigration Judge did not consider the question of humanitarian protection.

Each appellant sought a reconsideration order which was granted by a senior immigration judge. Following the demise of the AIT, and pursuant to the provisions of the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010, these three appeals have now become appeals to the Upper Tribunal.

At the beginning of the hearing we invited the representatives to clarify what they saw as the principal issues in these three appeals. Mr Bedford defined them as follows – i) whether they were entitled to humanitarian protection under Article 15(c) of the Qualification Directive; ii) whether the boys were at risk of forced recruitment by the Taliban and iii) whether they would face a real risk of ill treatment as unaccompanied children if returned to Kabul.

Each of the representatives made submissions which we do not propose to set out in full here but rather we provide a summary. Mr Bedford dealt firstly with Article 15(c). He referred to the case of GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 (“ GS ”) and submitted that matters had moved on since that case and that the situation was worse. He submitted that some people, on account of their vulnerability, needed only to show a lower level of indiscriminate violence in order to bring them within the provisions of Article 15(c). He submitted that unaccompanied children were more vulnerable to forced labour or sexual exploitation in Kabul and therefore would be within the parameters of Article 15(c). He made reference to the expert report of Dr Giustozzi which had been produced in evidence for the Tribunal and also to the UNAMA Report of January 2010 which showed that at least 5978 civilians were killed and injured in 2009, the highest number of civilian casualties recorded since the fall of the Taliban regime in 2001. A total of 2412 civilian deaths were recorded between 1 January and 31 December 2009, and this figure represented an increase of 14% on the civilian deaths recorded in 2008. He further submitted that there was likely to be an under-reporting of these figures and he referred to various pieces of the country specific evidence in support of this submission. He cited parts of that report to show that women and children, and those who were vulnerable, face particular disadvantages in the context of problems associated with armed conflict. Children had been affected as a result of attacks including air strikes, rocket attacks, IEDs and suicide attacks. There were several cases throughout the year of children being used to carry out suicide attacks or plant explosives. He also referred to figures cited in the April 2010 Country of Origin Report showing that about 1050 children died in suicide attacks, roadside blasts, air strikes and in the crossfire between Taliban insurgents and pro-government Afghan and foreign forces in the period between January and December 2009. Mr Bedford made various other references to the background evidence which we will not set out in full here but which are fully recorded in his detailed and very helpful skeleton argument.

As regards the risk of recruitment by the Taliban, he referred to various extracts from the Country of Origin Report of February 2009 and a more recent one of April 2010. The Child Soldiers Global Report 2008, referred to in that report, stated that there were anecdotal reports of under 18s serving in the armed forces. The children were used as suicide bombers by anti-government elements and there was forcible and voluntary recruitment by the Taliban of children in southern provinces and in parts of Pakistan. The Child Soldiers Report of 2004 noted UNICEF reports in mid-2003 that boys aged between 14 and 18 continue to be involved. Some joined voluntarily but others were coerced under threat of death or injury.

Turning lastly to the matter of the risk for unaccompanied children in Kabul, he noted that the AIT had held in LQ (age: immutable characteristic) Afghanistan [2008] UKAIT 00005 (“ LQ ”) that Afghan children are a particular social group for the purposes of the Geneva Convention. He referred to the words of Jackson LJ in ZK (Afghanistan) v SSHD [2010] EWCA Civ 749 at paragraph 25 and 26, with whom the other two members of the Court agreed. It was held that paragraph 24.40 of the 2008 Country of Origin Report citing a UNHCR paper of May 2006 was a sufficient basis of finding that a child without family in Kabul would be exposed to a risk of severe harm. He submitted that unaccompanied and separated children represented one of the most vulnerable groups in Afghanistan in terms of potential risks and weakness of social and legal protection. In his skeleton argument he also cited various extracts from the background material which we do not set out here but which we have noted and taken into consideration. In answer to a question from the Tribunal he submitted that the question for the Tribunal to ask itself was whether there was a real risk that each of these children would not have protection upon return to Afghanistan.

At the beginning of his submissions, the Tribunal indicated to Mr Gulvin that they did not need to hear him on the subject of Article 15(c) of the Qualification Directive. He therefore commenced his submissions by noting that in all three cases the refusal letters had given details of how the appellants might be able to contact their relatives in Afghanistan. The appellants had all been represented throughout the proceedings and contact with their relatives back home had been an issue from the beginning. Each of the appellants had been provided with information to enable them to make contact with their families but there was no evidence that any had done so. It was his submission that none of these children could be regarded as unaccompanied children on return to Kabul as they each had relatives and they had not shown that those relatives would not be able to come to meet them and accompany them. There was therefore no reason to believe that those relatives would not be willing to assist them.

Turning to the question of recruitment by the Taliban, Mr Gulvin acknowledged that there was some anecdotal evidence in the background material but at best it raised only a possibility of forced recruitment. There was no sufficient evidence to show that boys of this age were exposed to any more than a mere possibility, and certainly that these three boys did not face a real risk of such recruitment. There simply was not the evidence to support such an assertion.

At the end of submissions the Tribunal reserved its decision, which decision we now give together with our reasons.

We are satisfied that a material error of law has been demonstrated in each of these determinations. In the case of the first appellant, Master HK, we are satisfied that in the light of subsequent jurisprudence, and through no fault of his own, the Immigration Judge failed properly to consider the issue of humanitarian protection in line with appropriate country guidance as provided in GS , and in the European Court of Justice case of Elgafaji (Case C-465/07) [2009] 1 WLR 2100, 17 February 2009 (“ Elgafaji ”) . In the case of the other appellants the respective judges failed to address humanitarian protection at all.

We note the following extract from the judgment of the European Court in Elgafaji:

The immigration judge in Master HK’s appeal directed himself according to the 2009 case of GS (existence of internal armed conflict) Afghanistan CG [2009] UKAIT 00010 which was appropriate country guidance at the time. However after the decision of the Tribunal in the case of GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044, the earlier case was found to be no longer extant country guidance. The question to be asked, as formulated in the Court of Appeal case of QD and AH [2009] EWCA Civ 620, is as follows: “is there in Afghanistan, or a material part of it, such a high level of indiscriminate violence that substantial grounds exist for believing that an applicant such as the appellant would, solely by being present there face a real risk that threatens his life or person?”

We therefore set aside the three decisions of the immigration judges and we now proceed to remake them.

We turn firstly to the matter of Article 15(c) of the Qualification Directive. Mr Bedford drew our attention to paragraphs 39 and 43 of the European Court’s determination in Elgafaji and we bear in mind their guidance that the more an applicant is able to show that he is specifically affected by reason of factors particular to his own circumstances the lower the level of indiscriminate violence needed for him to be eligible for subsidiary protection. We also note that the AIT considered the situation in Afghanistan in the case of GS on the basis of background and expert materials for the period to May 2009 (at the latest) and found that the violence in Afghanistan had not then reached such a high level that the adult civilian population generally were at risk.

We further take into consideration that, at paragraph 134 of that case, the AIT expressly left open the possibility that there may be categories of individuals for whom there is an enhanced risk where the degree of indiscriminate violence would not need to be as high as it would otherwise need to be for subsidiary protection to be granted. We have carefully considered the UNAMA Report Jan 2010 and, in particular, the increase in the number of civilians killed in 2009. Mr Bedford also pointed out to us that UNAMA reported that UN preliminary figures show that there is a 29.6% year on year increase in security related incidents, with an average of 960.3 incidents per month compared to 741.1 incidents per month for 2008. However we are mindful that no definition of “security related incident” is provided in the report and Mr Bedford was not able to assist us in this regard. We therefore consider that “security related incident” may well be a term which includes military encounters and other encounters of the security forces with dissident groups, and therefore we are unable to gain any assistance from this figure insofar as it may assist us in looking at the risks for the civilians, and the extent to which there has been any increase in those risks. We have also taken into consideration that the methodology used by UNAMA may result in an underreporting, although it is difficult to know to what extent the figures may have been under-reported.

Mr Bedford sought to persuade us that children are particularly vulnerable and face particular disadvantages in the context of the problems associated with armed conflict. We have had particular regard to the evidence he has produced which shows that women and children are victims of air strikes, house raids, suicide and IED attacks and that these attacks often lead to deep psychological scars and trauma. We note that there are reports of children being used to carry out suicide attacks or to plant explosives.

The April 2010 COIR states at paragraph 26.04 that:

We have considered the evidence in considerable detail but we are not satisfied that it shows that children are disproportionately affected by the problems and the conflict currently being experienced in Afghanistan. The roadside blasts, air strikes and crossfire, together with suicide attacks when they occur, do not impact any more upon children than they do upon adult civilians. Furthermore, even though there is shown to be an increase in the number of civilian casualties, we are not satisfied that the evidence is sufficient to show that the guidance given by the AIT in GS is no longer to be regarded as a valid.

The UNAMA Report of 2009 shows that suicide and IED attacks caused more civilian casualties than any other tactic, but notes that such attacks have primarily targeted government or international military forces. These attacks are carried out in areas frequented by civilians and therefore, as a result, civilians are casualties too. We accept that civilians are deliberately targeted with assassinations, abductions and executions if they are perceived to be supportive of or associated with the government or the international community. The report notes that a broad range of civilians including community elders, former military personnel, doctors, teachers and construction workers have been targeted. Other personnel, such as United Nations non-governmental organisations, have also been targeted for receiving threats, and, in some cases, becoming victims of violence. However we find that none of these three appellants has been associated with any of what we might call these “at risk” groups, and there is no reason to believe that they would be upon return to Afghanistan.

The report also shows that there are risks concerned with living near areas of fighting, and where there are search and seizure operations, and being located near to military bases. The civilians located close to these areas can run an increased risk of danger and particularly those living near military installations which have often been targeted by the armed opposition. Civilians have been killed and injured as a result of their proximity to military bases. Again however, there is nothing in the evidence to show that these three appellants would be living in proximity to military bases or to areas where there are military operations, search and seizure operations in particular. Looking at the figures contained in the report regarding the casualties from anti-government elements, we see that IED devices claimed 773 casualties, suicide attacks 281, executions and assassinations 225 and other tactics 351. This latter group resulted primarily from rocket attacks or ground engagements in which civilian bystanders were directly affected. Looking at the detail of the reports concerning suicide and IED attacks, while we note that these attacks have been carried out in a manner which fails to discriminate between civilian and military targets or take adequate precautions to prevent civilian casualties, the information provided in the report shows that the attacks have largely been centred on the types of targets which we have described above. With regards to assassinations, the persons most often assassinated or executed have been those individuals who have acted as informants or spies for the Afghan government or international forces, those working as interpreters, truck drivers and security guards at military bases and those actively supporting the government or belonging to ANSF. It would seem that the majority of assassinations covered in the report took place in the South, South East and Central regions of Afghanistan.

Appalling though these atrocities may be we have no reason to believe that these young individuals would be at real risk of such treatment.

With regard to aerial attacks, the information shows that strikes and close air support accounted for a large percentage of civilian deaths, with 65 incidents recorded in which air strikes resulted in the deaths of civilians in 2009. In all, this resulted in 359 civilian deaths in 2009 and 15% of those killed overall. There is no evidence before us to show that the particular areas in which these three young men were living, or are likely to return to, are the areas in which there is a significant risk of death or injury through such operations.

Finally, with regard to search and seizure operations, although the report recorded 98 civilian deaths as a result of these operations in 2009, again that there is no evidence to show that these young people are likely to be living in areas where such operations might pose a significant or real risk for them.

We also note the comments made by the appellant's expert Dr Giustozzi at paragraph 5 of his report, where he states as follows:

Mr Bedford also sought to argue that a “risk of a threat” is something less than a real threat. However, this submission was misconceived. The point has already been decided by the Court of Appeal in QD (Iraq) [2009] EWCA Civ 620 as follows:

We now consider the question of the forced recruitment of children in Afghanistan. We have carefully considered the evidence to which Mr Bedford has referred us. We note the reference in the refusal letter to The Child Soldiers Report 2004 which noted:

This information is unfortunately now some six years old. It does however show the age group of the boys who may be targeted in this way but it also points out that not all children are coerced and age location and family patterns are all factors to be considered.

The COIR February 2009 quotes the Child Soldiers Global Report of 2008 which refers to anecdotal reports of under 18s serving in the armed forces and reported use of children as suicide bombers by anti-government elements including the Taliban, and forcible recruitment of children in the southern provinces and parts of Pakistan. In this regard we note that none of these three children come from those southern provinces.

Mr Bedford has also referred us to the COIR April 2010 paragraph 26.07 which states as follows:

The COIR April 2010 paragraph 26.40 also refers to the USSD Report 2009 which noted that:

We have taken all such reports into consideration. Whilst we cannot discount the forcible recruitment by the Taliban as a risk, particularly in areas of high militant activity or militant control, we conclude that the evidence does not point to this being any more than a mere possibility and not a real risk for these three boys.

We find that there is no particular evidence that the recruitment of child soldiers by the Taliban is a significant problem in the provinces from which these three appellants come: Kunduz, Kunar and Logar provinces.

The first appellant comes from Khanabad in Kunduz province. This is a province in the north of Afghanistan. It is shown to be one of medium risk in Dr Giustozzi’s map. The evidence accepted by the AIT was that this boy's parents were killed in an earthquake about five years before he came to the United Kingdom, and he was looked after by his maternal uncle who did not have any children of his own. His father had been forced to work for the Taliban, sewing clothes for them, and there was evidence from the appellant that his uncle had seen forcible recruitment in his area. This appellant had an older brother who was not, according to his evidence, taken by the Taliban but who died due to injuries received in the earthquake. We note that the SEF form records the elder brother of having been aged 22. Therefore, it was legitimate to observe that the Taliban had not shown any interest in recruiting this appellant's elder brother. We are not satisfied that, given the anecdotal nature of the evidence of recruitment of children, the lack of any evidence to show significant recruitment in Kunduz province, and the fact that child recruitment had not been visited on this family in this area in the past, this is a real risk for this appellant.

With regard to the second appellant, this young man comes from Nowabad village in Logar province. It would seem from the risk map of Dr Giustozzi that this area is probably a medium risk area. The immigration judge found that the appellant's father had been taken by the Taliban. The appellant himself gave evidence of local Taliban activity. There is no evidence, however, that the youngsters were taken; again this is not an area where we see any significant evidence of child recruitment by the Taliban. Furthermore, the appellant went to live with his uncle in Heraz for five months, and the appellant was pleased to be living there as there was no fighting going on. This is a province in the extreme west of the country and is categorised as low to medium risk, low risk in the northern part of the province with an increased medium risk in the southern parts. In any event, we are not satisfied that if he returned to live with his uncle in that area he would be at real risk of being recruited.

Finally, with regard to the third appellant, this young man came from Kunar province in the north-eastern part of Afghanistan, which appears to be medium or high risk on the map of danger and security ( although it is difficult to tell - without having a coloured map - which it is). He lived with his parents and his younger brother until his father disappeared. His father had been missing for five years, said to be taken by the Taliban. He had been in the care of his maternal uncle and mother. The appellant understood that the Taliban took people from the village and took boys when they were about 10 years old. He had been told this by his family. The appellant had lived in the village all his life and yet there is no evidence from him of him having known of any youngsters actually having been recruited; he relies on what he says he was told by his uncle and mother. We consider that if indeed there was active Taliban recruitment of children in his village the appellant would be likely to have been able to give some evidence of having seen or heard of it himself. He was aged 13 when he arrived in the United Kingdom and therefore it seems to us he was of an age when he might have been able to recall abductions of young boys.

Although there does appear in this case too to have been evidence of family talk of the taking of young boys by the Taliban, as with the other two young men, there is no material evidence of children being taken in this way, and, at best, there is only anecdotal evidence that this does occur in parts of the country . The country specific evidence is not such as to persuade us that there is a significant problem of child recruitment by the Taliban in the area in which this appellant lived.

Mr Bedford argued that in ZK (Afghanistan) at paragraphs 25 and 26, Jackson LJ, with whom the Chancellor and Thomas LJ agreed, held that paragraphs 24.40 of the 2008 COIR Report, citing a UNHCR paper dated May 2006, was a sufficient basis for a finding that a child without family in Kabul would be exposed to a risk of severe harm. He also argued that in the case of LQ, the AIT accepted that children in Afghanistan could be regarded as a “particular social group” for the purposes of the Refugee Convention.

First, we do not accept that conclusion assists these appellants. In LQ the Tribunal found that age was an immutable characteristic for the purpose of considering whether a particular social group is shown when considering the Refugee Convention. In the circumstances of that particular case, the tribunal found as follows:

However, this is not to be regarded as any form of country guidance nor precedent for any general proposition that all children in Afghanistan form a particular social group irrespective of their particular family circumstances.

Mr Bedford referred us to the 2009 UNHCR Guidelines which states:

It is our conclusion that the evidence does not show that any of these three young men faces a real risk on return to Afghanistan.