IND - Afghanistan

OPERATIONAL GUIDANCE NOTE - AFGHANISTAN

VERSION 2 - FEBRUARY 2003

I. INTRODUCTION

This document summarises the general political and human rights situation in the country of origin and provides information on the nature of claims frequently received from nationals of that country and relevant country conditions. It provides guidance on policy where required but does not, in itself, constitute a statement of Home Office policy. The document must be read in conjunction with the country assessment and other information distributed on the country of origin.
Applications for asylum in the United Kingdom are considered in accordance with the UK's obligations under the 1951 UN Convention relating to the Status of Refugees and the 1967 Protocol. All applications for asylum should be considered individually on their merits and, unless the applicants may reasonably be expected to seek asylum in a third country or the Dublin Convention applies, asylum should be granted where the applicant fulfils the criteria in the 1951 UN Convention.
Detailed guidance on assessing an asylum claim is contained in the Asylum Policy Instructions (APIs), chapter 1 section 2. Caseworkers must also familiarise themselves with the Home Office Country Assessment and its accompanying source material. If a claim for asylum falls to be refused, thought must be given as to whether a grant of exceptional leave is appropriate. As part of this process, Human Rights issues must also be considered. Further information on the European Convention on Human Rights and Fundamental Freedoms is contained in chapter 5 section 4 of the APIs. Information about the wider criteria for granting and refusing exceptional leave is contained in API chapter 5 section 1.

II. COUNTRY ASSESSMENT

The following is a very brief summary of the present country situation:

1. Political system

Afghanistan has been devastated by civil war for over twenty years. Following continuous power struggles by various factions, the Taliban movement, which emerged in 1994, eventually controlled most of the country. Civil war continued between the Taliban and the Northern Alliance (the United Islamic Front for the Salvation of Afghanistan UIFSA commonly known as the United Front or the Northern Alliance) until late 2001. The military commander of the Northern Alliance, until his assassination on 9 September 2001, was Commander Ahmad Shah Masoud. The Taliban's Supreme leader, Mullah Omar, was a reclusive figure based in the city of Kandahar. In 1996 the Taliban declared Afghanistan to be a complete Islamic state and had a six member ruling council in Kabul, although ultimate authority rested with Mullah Omar in Kandahar.
Neither of the warring factions was recognised by the United Kingdom as being the legitimate government of Afghanistan. Afghanistan was represented at the UN by the former Rabbani government. Only the United Arab Emirates, Saudi Arabia and Pakistan recognised the Taliban as being the legitimate government of Afghanistan.
The Taliban emerged as a new political group in late 1994, formed by a group of graduates from Pakistani 'madrassas' (Islamic colleges). The Taliban emanated largely from the Pashtun ethnic group, which has a strong sense of Islamic tradition and a code of tribal honour. They were largely from the south-west of the country and gained popularity, not just among the Pashtun ethnic group, due to their success in stamping out corruption and restoring a measure of peace. Their rule was characterised by a strict interpretation of Islamic Sharia law, enforced by a Religious Police who used beatings as a punishment. Sharia law and practices were already aspects of everyday life in most areas of Afghanistan, however the Taliban's strict interpretation and enforcement proved extremely difficult to adhere to for some elements of society - notably in the capital Kabul. Opposition to the Taliban internally was likely to lead to punishment for those concerned. Taliban forces fighting the civil war were reinforced by the private army of Usama bin Laden's Al-Qa'ida network which had a number of training bases in Afghanistan.
A deepening gulf between the Taliban and the rest of the world was reinforced in November 1999 when the UN imposed sanctions on Afghanistan following the Taliban's refusal to hand over Al Qa'ida leader Usama bin Laden. In response to the Taliban's refusal to hand over Usama bin Laden, prime suspect for the 11 September terrorist attacks on the US, a US led coalition began military action (Operation Enduring Freedom) against Taliban and Al Qa'ida strongholds in Afghanistan on 7 October 2001.
By late November 2001 the US led coalition and the forces of the Northern Alliance acting in concert had largely removed the Taliban's grip on Afghanistan, following the fall of Mazar-i-Sharif in the north and the capital Kabul. The UN sponsored talks in Bonn in late November which were attended by representatives of the major Afghan ethnic groups and resulted in a formal "Agreement on Provisional Arrangements in Afghanistan" - the Bonn Agreement.
The agreement stated that the Interim Authority, the initial governing body and its successor the Transitional Authority would:

act in accordance with basic principles and provisions contained in international instruments on human rights and international humanitarian law
ensure the participation of women as well as the equitable representation of all ethnic and religious communities.

The Interim Administration (the Executive of the Interim Authority) took office on 22 December 2001 when a 30 member cabinet was sworn in under the leadership of Hamid Karzai an ethnic Pashtun. The cabinet membership included Pashtuns, Hazaras and Tajiks and two women.
The Bonn Agreement stipulated that power must be transferred to a Transitional Authority within six months and called for the convening of an Emergency Loya Jirga (Afghan council of elders) to elect a head of state and approve proposals for the structure and key personnel of the Transitional Administration.
Following a nation-wide nomination and selection process carried out under the auspices of a Special Independent Commission, the Emergency Loya Jirga commenced on 11 June 2002. Some 1,575 delegates attended the Loya Jirga including a mix of ethnic backgrounds and religions and some 200 women. Hamid Karzai was overwhelmingly elected by secret ballot as President of the Transitional Administration. Hamid Karzai announced the names of 14 Ministers and 3 Vice Presidents who were endorsed by the Loya Jirga. The final Transitional Administration was announced later and was sworn in as the new government on 24 June 2002. The Administration is ethnically mixed and includes three women.
According to the Bonn Agreement the Transitional Administration will govern Afghanistan until a fully representative government can be elected through free and fair elections, which must be held by June 2004.

2. Security Situation

The Bonn Agreement raised the possibility of an international security force for Afghanistan. On 4 January 2002 a Military Technical Agreement was signed with the Interim Administration on the deployment of an International Security Assistance Force (ISAF) to work alongside Afghan police to maintain security in and around Kabul. Britain was lead nation until 20 June 2002 when Turkey took leadership of ISAF. The deployment of ISAF in Kabul has led to an improvement in the security situation there. However the Interim Administration and its successor the Transitional Administration have had limited reach outside Kabul. Various warlords and their forces continue to control the provinces. There have continued to be sporadic outbreaks of fighting for control between competing commanders.
The US led coalition action to track down Usama bin Laden and his Al-Qa'ida network and leaders of the Taliban, continues in some areas of the country.

3. Human Rights Situation

The overall human rights situation in Afghanistan has been extremely poor for some time. Prior to the establishment of the Interim Administration, the Taliban, and other warring factions in the country committed serious human rights violations, including political and other extra judicial killings and detentions due to ethnic background or support for opponents. The Taliban imposed strict restrictions on the behaviour of women and their Religious Police carried out arbitrary punishments including beatings and detention on those who transgressed their severe Islamic code of social and religious behaviour. UNHCR reported in February 2002 that, following the establishment of the Interim Administration and the deployment of the ISAF, the previous system of systematic discrimination by the Taliban no longer prevails. In addition to the provisions quoted above the Bonn Agreement reinstated parts of the 1964 Constitution of Afghanistan and in particular provisions prohibiting discrimination based on race, sex and religion. In a paper issued in July 2002 UNHCR noted that the situation is now generally conducive to the safe return of a broad spectrum of asylum seekers. More than 1.7 million refugees have returned from Pakistan and Iran.

III. COMMON CLAIMS

1. Fear of the Taliban

The Taliban are no longer in control of the country and are no longer a force which could represent a threat to a person's safety. Applications based on fear of persecution by the Taliban will not therefore meet the criteria for a grant of asylum under the 1951 Refugee Convention. [October 2002 Country Assessment paragraphs 6.137 to 6.138]

2. Fear of persecution on ethnic grounds

Caseworkers must familiarise themselves with country of origin information on particular ethnic groups which is in the October 2002 Country Assessment [paragraphs 6.46 to 6.74].

The Afghan Transitional Administration and its predecessor the Interim Administration are committed by the terms of the Bonn Agreement to act in accordance with basic principles and provisions contained in international instruments on human rights and international humanitarian law. They have stated that they will ensure the participation of women as well as the equitable representation of all ethnic and religious communities. In the main this agreement is being upheld particularly within Kabul. However the Transitional Administration has limited control outside Kabul and in the provinces various warlords and their forces continue to be in control. UNHCR have advised that people may be at risk of violence, harassment or discrimination in areas where they constitute an ethnic minority. This applies particularly to ethnic Pashtuns in the north and east of the country. In individual cases where the caseworker finds that the applicant may be at risk on ethnic grounds in the area from which they originate consideration will then need to be given to internal flight alternatives (see below). As internal flight is generally an option, fear of persecution on ethnic grounds in most cases will not lead to a grant of asylum.

3. Fear of persecution on political grounds

a) Former Taliban supporters/sympathisers

The Taliban no longer holds any power and no longer exists as a political or military organisation. Many former Taliban fighters captured during the US led military action have been freed and Hamid Karzai leader to the Interim and Transitional Administrations has said that rank and file Taliban members will not be punished. Nevertheless there are reports of accusations, discrimination, and threats against civilians who worked in the Taliban regime. Whilst internal flight is generally an option, those with rank and influence may not be able to escape from accusations, discrimination and threats by internal flight. Those with rank and influence within the Taliban may have been involved in human rights violations and caseworkers must ensure that particular consideration is given as to whether it is appropriate to invoke one of the Exclusion Clauses in the 1951 Convention. Any case where this is being considered should be referred in the first instance to the Senior Caseworker.

b) Former People's Democratic Party of Afghanistan (PDPA) supporters

The PDPA was the communist party, which ruled Afghanistan from 1978 to 1992. The communist regime was highly oppressive and unpopular and ruled with the assistance of a notoriously severe secret service KhAD (see below). Many former members of the party left the country some time ago, however some former members worked for the Taliban whilst, according to UNHCR, others risked human rights violations at the hands of the Taliban. Currently some former PDPA members continue to work within the Interim and Transitional Administrations however according to UNHCR others may continue to face risks of violence, harassment or discrimination. The degree of risk will be greater for those with a higher profile such as members of the communist committees structures at district and province level and those involved in the former communist party's social organisations including those who worked at district and province level. Lower ranking members and supporters are unlikely to face any problems and in addition could relocate internally. There may be some higher profile cases where a grant of asylum will be appropriate.

4. Former KhAD agents

The Khadimat-e Atal'at-e Dowlati (KhAD) which operated from 1980 until 1992 was the security service of the highly repressive communist regime. (Although renamed Wazarat-e Amaniat-e Dowlati (WAD) in 1986 it continued to be known generally as KhAD.) The work of the organisation and the methods it used means that all NCO's and officers employed by KhAD were involved in serious human rights violations. KhAD members may face risks similar to former PDPA members, the level of risk varying with their profile in KhAD and their current situation in the country. In view of the human rights violations perpetrated by KhAD agents caseworkers must ensure that particular consideration is given as to whether it is appropriate to invoke one of the Exclusion Clauses in the 1951 Convention. Any case involving a KhAD agent should be referred in the first instance to the Senior Caseworker.

5. Claims based on the general humanitarian/security situation

It is acknowledged that after 23 years of war and 4 years of drought the humanitarian situation in Afghanistan is generally poor. The Transitional Administration and the many aid agencies operating in Afghanistan are actively addressing this. The situation in Kabul is better than in the remainder of the country. In Kabul there is a sufficiency of the basic requirements to sustain life.

It is also acknowledged that outside Kabul the Transitional Administration has limited reach with individual warlords and their forces continuing to control the provinces. In some areas fighting between the forces of opposing warlords seeking control of particular areas continues. The security situation in Kabul is stable.

A breakdown in law and order as in parts of Afghanistan and a poor humanitarian situation do not either together, or individually, give rise to a well-founded fear of persecution for a Convention reason. Claims based on these issues alone will therefore fall to be refused.

The question of whether the removal of a particular individual would be in breach of ECHR would depend on the facts of that case. In the case of No 14[05345 21 November 2002] a legally qualified Immigration Appeal Tribunal held that despite the current situation in Afghanistan return to Kabul would not be unduly harsh as the conditions there were poor but did not reach threshold to breach Article 3.

Where removal would not be in breach of ECHR, any compelling compassionate or humanitarian reasons why we should not return the applicant should be considered. However general lawlessness, poverty and lack of resources will not in themselves be sufficient to bring the applicant within the exceptional leave provisions.

6. Sufficiency of protection

Caseworkers must consider the guidance on "sufficiency of protection" contained in the Asylum Policy Instructions on Assessing the Claim.

The Home Office position is that there is sufficiency of protection if a country has a system of criminal law, which makes attacks by non-state agents punishable, and that there is a willingness and ability to enforce the law.

The country information shows that there is a functioning judicial system. In Kabul (to where unsuccessful asylum seekers would be returned) the police authorities are able and willing to enforce the law. Their resources are however stretched and they have a limited capacity to react. As with many major cities crime rates are high and variable with some areas better than others. Hamid Karzai the new President of Afghanistan has announced the setting up of a judicial commission as outlined in the Bonn Agreement and noted the need for an independent and corruption free judicial system. [Country Assessment paragraphs 5.21 to 5.23 refer]. Although it has been reported that in some areas of Afghanistan, where a particular ethnic group is a minority, they may encounter difficulties, no ethnic group faces such difficulties in Kabul to where unsuccessful asylum seekers would be returned.

7. Unaccompanied Asylum Seeking Children.

Unaccompanied asylum seeking children who have no claim to stay in the UK and who would, had they been adults have been refused outright, should continue to be dealt with under UASC policy and given ELR to age 18 or for four years for those under 14, unless there are adequate reception arrangements in place.

8. Internal flight alternative

Caseworkers must consider the guidance on "internal flight" contained in the Asylum Policy Instructions on Internal Flight.

There is a general freedom of movement within Afghanistan, which allows individuals to move internally to areas where their ethnic group does not constitute a minority or experience any difficulties. In such circumstances it would not generally be unreasonable or unduly harsh for the individual to use this internal flight alternative. [Country Assessment paragraph 6.43]

IV. ADDITIONAL FACTORS AFFECTING RETURNS TO AFGHANISTAN

On 12 October 2002 the UK Government, the Transitional Islamic Administration of Afghanistan, and the United Nations High Commissioner for Refugees signed a tripartite agreement on voluntary return to Afghanistan. In addition to considering the asylum and ECHR issues caseworkers and those arranging returns to Afghanistan will need to consider the suitability and timing of return as a result of this agreement.

a) Possibility of voluntary return for some refused asylum applicants

It was agreed that normally those not granted asylum or ELR would be free to decide whether to accept a voluntary return as set out in the agreement during the first two months after the final decision on their case. Alternatives to voluntary repatriation will not normally be undertaken during this two-month period. ELR should not be granted to cover this short period.

b) Delay on commencement of enforced returns due to Afghan winter

It was agreed that with the exception of persons without protection and humanitarian needs, who have arrived after 1 October 2002, alternatives to voluntary repatriation would not normally be put into effect before the end of the winter months i.e. 1 April 2003. The concession to stay until the end of the winter months should be based on the applicant's agreement to return voluntarily at the end of the winter. ELR should be granted to cover the period until 1 April 2003.

c) Categories it may not be appropriate to return

Although the individual circumstances of each case will need to be considered in acknowledgement of humanitarian issues we also agreed not to return the people in the following categories:-

(i) those with severe life threatening medical conditions, which could not be treated in Afghanistan. The provisions of ECHR are likely to have already been considered in such cases and ELR granted where appropriate as in III 5 above. Further information on the UK's obligations in medical cases is available in the CIPU Medical Bulletin issued in March 2001.
(ii) those in other vulnerable groups, such as single women and women who are heads of families and those with special needs who have no support including accommodation. We have agreed not to return people in these groups without appropriate support being available to them. Some of these cases may fall under the "compelling compassionate or humanitarian" provision of the ELR policy and ELR will be granted as in III 5 above. In other cases consideration should be given as to whether the lack of support is permanent or temporary; a grant of ELR for a shorter period may be appropriate.
(iii) students and children of school age (between 5 and 18) should generally be allowed to remain to complete any academic/school year they have started. The concession to stay and complete the academic/school year should be based on the agreement of the student (or in the case of a dependant child their parents) to leave voluntarily at the end of the academic/school year. (As the Afghan academic year is not the same as that in the UK it is not possible to ensure a smooth transition from one system to the other but this is the best we can practically do to assist.) Where return is being delayed in these circumstances ELR should be granted until the end of the UK academic/school year.

V. ELR APPROACH TO ASYLUM CLAIMS

On 18 April 2002 the long-standing practice of granting exceptional leave (ELE/R) for a period of 4 years to those applicants from Afghanistan who did not meet the criteria in the 1951 UN Refugee Convention for asylum was altered. As a result of changing country conditions Ministers agreed that the period of exceptional leave granted to applicants who do not meet the criteria for asylum would be reduced to 12 months. This policy applied to all final decisions made as from 18 April 2002 and until 10 July 2002.

On 11 July 2002 a further change in policy was announced. As a result of further improvements in the country situation and in particular in the capital Kabul, the blanket policy of normally granting exceptional leave in all cases wher