Under the UNHCR Protocol relating to the Status of Refugees  1951 Article 1 definition of the term “refugee”  For the purposes of the present Convention, the term “refugee”  shall be any person who owing to well- founded fear of being persecuted for reasons of race, religion, national- ity, membership of a particular social group or political opinion, is out- side the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

This means;

• The person has a well-founded fear
• Of being persecuted
• Due to one of the five reasons- Race; Religion; Nationality; PSG or Political opinion
• And is outside the country which he fears will persecute him
• And due to the fear, he is unable or unwilling to return

Rule 327 Immigration Rules defines a refugee in accordance with the above convention definition who can make an asylum application in the UK.

What is persecution?

European Convention on Human Rights sets out the fundamental rights of a human being, those being;

• Article 2 – Right to life unless justified by self-defence or the law
• Article 3 Prohibition of torture  
• Article 5 Right to liberty and security
• Article 6 Right to a fair trial
• Article 7 No punishment without law
• Article 8 Right to private and family law
• Article 9 Freedom of thought, conscience and religion
• Article 10 freedom of expression
• Article 11 Freedom of assembly and association
• Article 12 Right to marry
• Article 13 Right to an effective remedy
• Article 14 Prohibition of discrimination

These rights can be derogated in time of emergency by way of Article 15

Under The Refugee or Person in Need of International Protection (Qualification) Regulations 2006; Being Persecuted can arise from two forms in the home country of the person who is fleeing it and that is persecuted by state and non-state actors.

State Actors = the country itself; any party or organisation which either controls (or has significant influence over) the country, or a large part of it or any person who is acting on behalf of a government body.

Rogue State Actors = There is a distinction between abuse which is authorised or tolerated by the State and abuse by rogue officials which has not been sanctioned by the authorities. For example, a policeman who rapes a woman for his own sexual gratification may not be acting in accordance with government policy. Nevertheless, the State must take responsibility for the behaviour of its officials. A failure or reluctance to protect citizens from rogue officials or to punish misdemeanours may in itself amount to State persecution. In the case of Svazas [2002] the Court of Appeal found that "while the State cannot be asked to do more than its best to keep private individuals from persecuting others, it is responsible for what its own actors do unless it acts promptly and effectively to stop them."

Claiming Asylum in the UK

An ‘asylum claim’ is legally defined at section 113 of the Nationality, Immigration and Asylum Act 2002; asylum claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention

In order for any Afghani or any one else claiming Asylum in the UK, the above has to be met. But that is not the only issue that faces those seeking refugees status, in addition we have the Home Office Guidance which comes by way of what are known as Country Information guides and more importantly we have the Country Guidance cases which are issued which carry great weight in determining how a case is to be looked at. The leading case is AS (Safety of Kabul) Afghanistan (CG) [2020] UKUT 130 (IAC) (1 May 2020) which states

Risk on return to Kabul from the Taliban

(i)     A person who is of lower-level interest for the Taliban (i.e. not a senior government or security services official, or a spy) is not at real risk of persecution from the Taliban in Kabul.

Risk of serious harm in Kabul

(ii)   There is widespread and persistent conflict-related violence in Kabul. However, the proportion of the population affected by indiscriminate violence is small and not at a level where a returnee, even one with no family or other network and who has no experience living in Kabul, would face a serious and individual threat to their life or person by reason of indiscriminate violence. 

Reasonableness of internal relocation to Kabul

(iii) Having regard to the security and humanitarian situation in Kabul as well as the difficulties faced by the population living there (primarily the urban poor but also IDPs and other returnees, which are not dissimilar to the conditions faced throughout many other parts of Afghanistan) it will not, in general, be unreasonable or unduly harsh for a single adult male in good health to relocate to Kabul even if he does not have any specific connections or support network in Kabul and even if he does not have a Tazkera.

(iv) However, the particular circumstances of an individual applicant must be taken into account in the context of conditions in the place of relocation, including a person’s age, nature and quality of support network/connections with Kabul/Afghanistan, their physical and mental health, and their language, education and vocational skills when determining whether a person falls within the general position set out above. Given the limited options for employment, capability to undertake manual work may be relevant.

(v)   A person with a support network or specific connections in Kabul is likely to be in a more advantageous position on return, which may counter a particular vulnerability of an individual on return. A person without a network may be able to develop one following return. A person’s familiarity with the cultural and societal norms of Afghanistan (which may be affected by the age at which he left the country and his length of absence) will be relevant to whether, and if so how quickly and successfully, he will be able to build a network.

Previous Country Guidance

(vi) The country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to Article 15(c) of the Qualification Directive remains unaffected by this decision.

(vii)           The country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to the (un)reasonableness of internal relocation to Kabul (and other potential places of internal relocation) for certain categories of women remains unaffected by this decision.

(viii)         The country guidance in AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC) also remains unaffected by this decision.

In essence what the cases have said is that Afghanistan and more to the point Kabul was a safe place for a person who was of low interest to the Taliban was of good health, that indiscriminate violence is small and anyone with a support network would be better placed than one without. However, the situation which gace rise to the Country Guidance’s were all dealw with when there were Western forces in Afghanistan. The question is what weight they actually carry given that as suggested the Western powers will leave Kabul by the 31st August 2021, thereafter it is unclear as to how the nation is to be governed.

As from what the pictures have shown , it seems that many wish to leave, but what about the ones who are already here and may have failed in previous applications? If a person has not filed further representations under Paragraph 353 which will bring into play Paragraph 353A.  Paragraph 353 only imposes a somewhat 'modest' test that an application has to meet before it becomes a fresh claim. The question is not if the Home Office thinks the claim is good, or is likely to succeed, but whether there is a realistic prospect of a judge applying anxious scrutiny (WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 (09 November 2006). Whilst the burden under paragraph 353 is on the person applying to show that there is something new, given what has occurred in Afghanistan the Home Office would be hard pressed to say that the situation which has and is developing is not new. Hence  there would be merit in the Home Office reviewing the situation as this is  new material  which is significantly different from that already submitted and secondly if this situation was placed before a judge there is a realistic prospect of judge  applying the rule of anxious scrutiny to find in the favour of the person applying . Therefore, if further submissions have not been made by an Afghani, they should be and if they have been made, then additional submissions taking into account the current situation should be raised as well.