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Who can be sent back to Afghanistan?

Who can be sent back to Afghanistan?

Two months ago, the Home Office withdrew all but one of its country policy and information notes (CPINs) relating to Afghanistan. New decisions on Afghan asylum claims were halted, and in the immigration tribunals, Presenting Officers sought adjournments in all existing cases. Where adjournments were refused, Presenting Officers indicated that they were unable to give any submissions as to the current country situation in Afghanistan, leaving judges in the unenviable position of navigating an uncertain country situation without any assistance from Home Office representatives.

As of 6 October 2021, this passive approach has ended. The Home Office has formally confirmed its position in two new Afghanistan CPINs covering the humanitarian and security situation and fear of the Taliban. These documents seem to confirm that there will be no blanket “amnesty” for existing Afghan asylum seekers in the UK. But they do make important concessions as to the risk posed to claimants on return to Afghanistan in light of the Taliban’s takeover. 

What is a CPIN?

A CPIN is a policy position set out by the Home Office to assist their caseworkers when considering claims for international protection. Whilst not all asylum seekers will have their claims determined by reference to a CPIN, the Home Office will normally provide guidance for countries that are a common source of asylum claims.

CPINs will normally follow existing case law and will also include research by an independent advisory group. CPINs should be regularly updated, but practitioners can find and rely upon evidence that postdates them, as well as instruct experts.

A CPIN is only the Home Office’s opinion. A refusal letter may follow the CPIN closely, but a judge is not obliged to follow or even prefer the CPIN on appeal. 

Overview

The two new CPINs cover issues that will be heard in thousands of Afghan protection claims.

The first covers the security and humanitarian situation in Afghanistan, although this remains unclear and seems likely to change in the coming weeks and months.

There is more certainly for those whose claims are based on fear of the Taliban. The Home Office lists types of people likely to be at risk of harm if returned, and explains who it is likely to grant refugee status to.

This second CPIN also departs from the case law. The Home Office now states that there are “very strong grounds supported by cogent evidence to justify a departure” from the country guidance case of AS (Safety of Kabul) [2020] UKUT 130 (IAC). It seems inevitable that the Upper Tribunal will soon convene a new country guidance case.

Uncertainty acknowledged

Firstly, the notes acknowledge that they present an incomplete picture. Paragraph 2.4.5 of the Taliban CPIN says that reliable and independent information is hard to come by within Taliban-controlled areas. At paragraph 4.1.2, the note quotes the United Nations on disruptions to the “flow of information” and its inability to verify allegations of human rights abuses committed by the Taliban.

Paragraphs 2.4.3 and 2.4.4 note that while the Taliban have insisted that they intend to rule with tolerance and inclusivity, they have already shown themselves to be adept at spin and are highly unlikely to compromise on their deeply conservative and fundamentalist core values. There will also be regional variation.

Oddly, 2.5.1 of the security CPIN describes it as an “open question” as to whether the Taliban would be willing to provide protection and stating that it will depend on the particular circumstances of the case. (The guess is that if someone is affiliated with the Taliban, they may be protected.)

The note concludes:

2.4.10 The situation is fluid and uncertain, with the Taliban still consolidating its position. It remains unclear precisely how the Taliban will rule the country and if it will change its attitude toward and treatment of different groups as it transitions from insurgent group to de facto government.

The only real certainty is that the Taliban now control and dominate the country.

Risk of persecution

The Taliban CPIN gives a non-exhaustive list of types of people who are likely to be found at real risk of persecution.

  • Former government employees and members of the Afghan National Armed Forces (ANSF), including the police
  • Former employees/those linked to international forces and organisations, including interpreters
  • Women in the public sphere
  • ethnic/religious minorities, in particular Hazara
  • Persons who have credibly resisted, or are perceived to resist, Taliban requests or control, or who do not conform to, or are perceived to not conform to, strict cultural and religious expectations/mores – in particular women
  • journalists critical of the Taliban
  • LGBTIQ+ persons

This should cover many asylum applicants. It could also be argued that the very act of leaving Afghanistan and seeking asylum in the UK would be perceived as resistance to “Taliban requests or control”.

Paragraph 2.4.15 confirms that HJ (Iran) principles will apply: people should not be forced to modify or feign political beliefs in order to fit in with the new Taliban morality.

Practitioners should feel confident that protection claims should have a decent prospect of success, given this acceptance that the Taliban will continue to persecute a wide range of their perceived enemies.

General security situation

The picture on the security and humanitarian protection is not clear.

Paragraph 2.4.17 of the security CPIN says that it is “open to question as to whether there continues to be a ‘situation of international or internal armed conflict’ in Afghanistan”. The guidance does not come to a clear conclusion on whether it would amount to inhuman and degrading treatment to send someone back.

As per 2.4.18, it is left to individual caseworkers to consider the circumstances of particular applicants before determining whether they are entitled to humanitarian protection. It is not made explicit, but one can anticipate that relevant factors that were previously taken into consideration — mental health, time in the UK, support networks and connections — will still be highly relevant.

The CPIN paints a grim picture of the humanitarian situation in Afghanistan, predominantly reflecting the position set out in AS (Kabul), but draws no conclusions as to the further social and economic hardship that Taliban governance will likely bring. In the absence of up-to-date evidence, the document refers readers to organisations that chart the security situation in Afghanistan such as the European Asylum Support Office and United Nations Office for the Coordination of Humanitarian Affairs.

Finally, it seems that the frequent refrain in Afghan cases of “it’s all about Kabul” may become a thing of the past. Paragraph 2.6.1 of the security CPIN states:

In AK, the Upper Tribunal held that internal relocation to Kabul was reasonable, bar some limited categories (lone women and female heads of household). This was confirmed in AS (Safety of Kabul). However, in light of the Taliban’s capture of Kabul on 15 August 2021, internal relocation to Kabul is unlikely to be a reasonable option whilst the Taliban remain in control and it would therefore be unduly harsh to expect a person to do so.

Whilst previously the Upper Tribunal and the Home Office indicated that the Taliban lacked “motivation” to track targets throughout the country, the CPINs no longer take this position. It remains to be seen whether regional variations may form if a Taliban governor runs a particularly repressive regime, though.

Good news, hopefully

On an initial reading, this updated policy position seems to be a step forward for Afghan asylum seekers and should lead to an increase in grant rates, but this remains to be seen. In particular, people who would previously have been told to internally relocate should now have very strong claims.

The Home Office has certainly left its caseworkers room to refuse protection claims should they wish to do so. Caseworkers have been given considerable scope to come to their own conclusions in relation to claims. Arguably this was not the case with the previous CPINs which effectively regurgitated the case law. It seems likely that the credibility of new asylum seekers will be heavily scrutinised and attacked if the decision-maker is minded to refuse.

Practitioners should seek to do their own research to supplement the arguments that they wish to make. The CPINs will quickly become outdated and full reliance on them will fail to provide an up-to-date risk assessment for claimants. 

This policy position is not forever. Upon receipt of further country information, the Home Office is likely to change its position again, particularly following updated country guidance case law.

But, at present, the majority of Afghan claimants in the UK should have a real chance of securing permission to remain in light of these new CPINs, provided their cases are presented well.

Free Movement training course: fresh claims by asylum seekers

Module 1 Law and process
Unit 1 Introduction
Unit 2 The rules on fresh claims and what they mean
Unit 3 The fresh claim process
Module 2 Fresh claims in practice
Unit 1 Understanding the client's situation
Unit 2 Change in country situation
Unit 3 Change in client's situation
Unit 4 Further and better evidence cases
Unit 5 Poor previous representation cases
Unit 6 Expert reports
Unit 7 Final quiz

Jamie Bell is a solicitor in the Public Law and Immigration Department at Duncan Lewis, where he has a particular commitment to representing Afghan asylum claimants.

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