Issue 46 September 2009 - Current Awareness: Asylum, Afghanistan

 

ASYLUM AND IMMIGRATION - DKN v Secretary of State for the Home Department [2009] CSIH 53

DKN applied for asylum on the grounds that he came from Nangarhar Province in Afghanistan and that he had been involved since his childhood with Herzb-e-Islami Gulbuddin (“HIG”), a group which has close links to Osama bin Laden. It is a proscribed terrorist organisation in the United Kingdom. DKN was involved in military action on behalf of HIG and took over as commander when his father, who had been a close associate of the leader of HIG, was killed. He used money belonging to HIG to fund his departure from Afghanistan. He claimed asylum on the basis that if he were to be returned to Afghanistan he would be at risk of persecution persecution not only from the Afghan authorities because of his previous involvement with HIG but also from members of HIG itself because of his desertion and taking HIG’s money as well as the many enemies of HIG, his father and himself.
His appeal was dismissed at first instance and on reconsideration. The reconsideration was restricted to whether the Immigration Judge (“IJ”) was entitled to conclude that the activities that the appellant had either committed personally, or with which he was closely involved, were crimes of a non-political nature such as to engage art.1F of the Convention relating to the Status of Refugees (“the Geneva Convention”). The IJ determined that DKN would be excluded, and having rejected the applicant’s claim for protection under the Geneva Convention, the IJ then considered whether the applicant was otherwise protected from removal under art.3 of the European Convention on Human Rights (“ECHR”). The IJ noted the improving situation in Kabul concerning the promotion and protection of human rights and concluded that there was a sufficiency of protection in the city in view of the presence in Kabul of the international security force. He also found as a fact that HIG is no longer the integrated force that it once may have been and that the applicant would have protection available to him in Kabul. The IJ was not satisfied that the applicant would face any treatment contrary to art.3 of ECHR. Nor was he satisfied that the applicant was unable to seek safety in Kabul, where sufficiency of protection was likely to be available to him.

On reconsideration the Senior Immigration Judge (“SIJ”) concluded that the IJ had made no material error of law on the basis that the IJ had “concluded that the appellant would be able to relocate safely to Kabul”. His previous involvement with HIG would not prevent the applicant from doing so, provided he renounced support for the leader of the HIG. The IJ had noted that a number of HIG members had done so previously and there was no reason why the applicant could not do likewise. He could then look to the Afghan authorities in Kabul for a sufficiency of protection against any other risk which might be posed to him there. The SIJ considered that the IJ’s conclusions were open to him on the available evidence and the SIJ determined that in light of the IJ’s: “[S]ustainable finding that the appellant would be able to relocate in safety to Kabul, the issue remitted to him for determination was irrelevant and did not require determination”.

In making an application for leave to appeal to the Inner House the applicant argued that the SIJ had misunderstood the nature and effect of the finding by the IJ, namely whether the IJ was correct in concluding that the applicant was excluded from the protection of the Geneva Convention because his activities were not political. Moreover, the SIJ had erred in concluding that the IJ’s findings about adequacy of protection of the applicant’s ECHR rights in Kabul equated to a finding that the applicant could relocate to Kabul. The IJ had not addressed the question in terms of internal relocation. The second ground of appeal was that the SIJ failed to deal adequately with the issue remitted to him for reconsideration, namely whether the applicant’s activities had been non-political crimes excluding the applicant from the protection of the Geneva Convention.
Held: Application refused.

(1) The SIJ had erred in law in a number of respects. First the SIJ failed to determine the issue of whether the activities of the applicant as a member of and latterly as a commander in HIG were political or amounted to a serious non-political crime, resulting in his exclusion from the protection of the Geneva Convention. The second respect in which the SIJ erred is that he misunderstood the extent of the remit for his consideration. At para.[7] of his decision he noted the issue remitted to him. However at para.[17] he conjoined the issues specified in art.1F(b) and (c) whereas the sole issue remitted to him was the exclusion by virtue of sub-para.(b). Having done so, he then failed to address either issue.

(2) The other respect in which the SIJ erred was in applying to the case based upon art.1F(b) of the Geneva Convention the IJ’s conclusions about the applicant’s ability to seek safety in Kabul in the context of art.3 ECHR. The exclusion clauses in art.1F were concerned with the activities of an individual and, in particular, whether these activities can properly be described as “a crime against peace, a war crime or a crime against humanity” (art.1F(a)), “a serious non-political crime” committed outside the United Kingdom (art.1F(b)) or “acts contrary to the purposes and principles of the United Nations” (art.1F(c)). Issues such as humanitarian protection and relocation are irrelevant when determining whether a claimant for asylum is excluded from the protection afforded by the Geneva Convention by reason of art.1F. If an IJ is required to consider the applicability of art.1F, he must also address questions of humanitarian protection and protection under art.3 ECHR, as the IJ did in the present case. Issues of relocation and the availability of protection are, of course, relevant in determining these additional questions.

(3) Even so, leave to appeal was refused as the applicant had admitted participation in the actions of the HIG in the company of his father and after the death of his father, as a commander. In that latter capacity he had issued instructions to people to obtain guns and had attacked and been attacked. In light of the applicant’s own evidence it is not difficult to understand the basis upon which one of the grounds for reconsideration was rejected.

(4) The IJ concluded that the applicant was guilty of acts contrary to the purposes and principles of the United Nations by his participation in the acts of HIG and was therefore excluded from the protection of the Geneva Convention by reason of art.1F(c). While it was appropriate to apply the provisions of art.1F restrictively it was also relevant to consider the extent to which the applicant has violated the human rights of others. The applicant has not disputed that the acts of the HIG were acts contrary to the purposes and principles of the United Nations but maintained that there was insufficient evidence of his participation in these acts. Even if the applicant had disputed that the acts of HIG properly fell to be regarded as being in contravention of art.1F(c), there was ample evidence before the IJ to entitle him to reach such a conclusion.

(5) However it was not sufficient merely to establish that the applicant was a member of such a group. It is necessary that the applicant’s complicity should be sufficient to bring him within the exclusion and that the applicant was a voluntary member of HIG, who understood its aims, methods and activities. As was observed by Stanley Burnton LJ in KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ. 292 it is sufficient if there are serious grounds for considering that a person committed acts identified in art.1F(c) and it is not necessary to establish that he actually did so (para.35). Moreover, while Stanley Burnton LJ acknowledged that mere membership of an organisation might not be sufficient to result in a person’s exclusion from the protection of the Geneva Convention, he expressed the opinion that “a person who knowingly participates in the planning or financing of a specified crime or act or is otherwise a party to it, as a conspirator or an aider and abettor, is as much guilty of that crime or act as the person who carries out the final deed”.

(6) Applying that test to the actual involvement of the applicant in HIG we are satisfied that it was such as to amount to serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations. At the time of his father’s death the applicant was actively participating in the acts of HIG, including attacks against ISAF. He must have been aware at that time of the aims, methods and activities of HIG. Thereafter he became a commander in HIG and was involved in the planning of acts, including issuing orders to obtain guns. He also had access to the funds of HIG. As a result of his involvement with HIG the applicant is excluded from the protection of the Geneva Convention by virtue of art.1F(c). There was accordingly no prospect of the applicant being successful in his appeal despite the errors of law by the SIJ.