Education

A troubling new approach to Afghan asylum claims

Published on September 2, 2024

Anecdotal evidence of a recent increase in Afghan asylum refusals, along with publication of two updated country policy and information notes suggests that the Home Office has changed its approach to those who have come to the UK from Afghanistan and sought protection.

Background

I wrote previously about the history of Afghan asylum claimants in the United Kingdom. In summary, for many years before August 2021 the Home Office’s position on the security situation in Afghanistan failed to reflect what was happening on the ground. Legal practitioners fought for many years to give Afghan asylum claimants a chance of being recognised as refugees, for examples see AK (Afghanistan), HN (Afghanistan) and AS (Afghanistan).

As anticipated, the return of the Taliban in August 2021 led to a significant change in the approach to Afghan asylum claims. The Home Office appeared to acknowledge – at least implicitly – that Afghanistan was too dangerous for nearly all Afghan asylum claimants to return. As a result, most who applied (some of whom had been waiting for over a decade) were granted refugee status over the next three years.

The Home Office no longer relied on AS (Afghanistan) and in reality did not question the accounts of the majority of applicants. This was reflected in the previous country policy information note that acknowledged that those who opposed the Taliban would be likely to be at risk.

There was also a significant increase in the number of Afghans claiming asylum in the United Kingdom, rising from 1,349 applicants in 2020 to 10,310 applicants in 2022 (as would be expected given the instability and increased risks in the country) – an increase of 664%. The most recent immigration statistics, released on 21 August 2024, demonstrate an incredible 212% increase in protection grants, an increase from 16,755 to 62,089, in the year ending June 2024.

The rate of recognition for those Afghans claiming in 2021 was 98.5%, with only 29 refusals from 2,213 decisions. 2022 saw 96% of claims accepted, with 274 refusals from 7,177 decisions and 2023 saw 90.5% of claims accepted, 775 grants with 77 refusals. The high rate of recognition led to Afghanistan being included in the ‘streamlined asylum process’, alongside Libya, Eritrea, Syria and Yemen.

It should be noted that the grant rates in 2022 and 2023 are only inclusive of those Afghans who did not fall within the eligibility criteria for the Rwanda scheme. Therefore the worry for many Afghans during this time was not whether they would be granted asylum but whether their claim would be considered at all.

Now that the scheme has been scrapped, they face a new challenge; updated guidance which seems to narrow the criteria within which Afghan asylum claims will be granted.

On the third anniversary of the conclusion of Operating Pitting, there are now some early signs that this light touch approach towards Afghan asylum claims is coming to an end. This is of particular concern for the cohort who languished in the Rwanda scheme; their claims are now due for consideration and they risk getting caught in the new, narrowed, Home Office guidance on Afghan asylum claims.

A change in approach

The new Labour government has already announced that it would work within existing frameworks to increase ‘lawful’ removals of failed asylum claimants and deportees. Practitioners anticipate an increase in removal flights as well as more scrutiny towards individualised asylum claims in contract to expensive gimmicks such as the Rwanda scheme.

While practitioners have grown used to maladministration and delay with their clients claiming asylum, the new government has rapidly admitted those with Rwandan notices of intent into the asylum system and shifted resources to allow for expedited asylum interviews and decisions. This should be a relief for those who have been waiting for over two years for any progress in their claims but there are significant risks that rushing decisions on complex claims can lead to mistakes being made.

There is anecdotal evidence that there has been an increase in Afghan asylum refusals in recent weeks. I have recently seen a refusal that relied on AS (Afghanistan) and described the Afghan healthcare system as having increased ‘resilience’ following the return of the Taliban.

With the legal aid sector in crisis, thousands of asylum claimants have been unable to obtain appropriate legal representation for their initial asylum claims or subsequent appeals, so there is a clear risk that poor decisions will pass under the radar.

There is also a risk that the immigration tribunal could become overwhelmed with unrepresented asylum claimants and that in the absence of any legal submissions, the Home Office will maintain decisions maintaining that Afghanistan is now ‘safe’ to many asylum claimants.

This fear is supported by the fact that in August 2024, new Afghan country policy and information notes were published relating to ‘Fear of the Taliban’ and the ‘Humanitarian Situation’. This is the first update in the Home Office in the position since April 2022. The country note ‘Security Situation’ remains the same as the April 2022.

New country of origin information

As always with Home Office country notes, a detailed analysis of the entire document is important. Even in 2022, it was not accepted that the humanitarian and security situation alone would amount to an article 3 or refugee convention breach for a healthy person returning to Afghanistan.

However, the individual circumstances of an applicant almost always led to a grant of protection under the old country notes. The new country notes provide guidance as to which claims are now likely to be successful.

Country police and information note on fear of the Taliban

Those still accepted as likely to be at risk are:

Former members of the Afghan Special Force

Former members of the National Directorate of Security (NDS), especially those who were trained by, or worked or linked with ‘foreign’ or international forces

Former members of the Afghan National Defence and Armed Forces (ANDSF)

Former members of the Afghan National Police (ANP) and Afghan Local Police (ALP)

Former employees of, and/or those linked to international forces and organisations, including interpreters

Also included as likely to be at risk are those who do not (or are perceived to not) conform to cultural and religious expectations/mores, including:

Women

Hazaras

Religious minorities and non-Muslims

Journalists critical of the Taliban

Human rights defenders critical of the Taliban

Judges and prosecutors who were involved in prosecuting and sentencing Taliban members during the insurgency

Lesbian, Gay, Bisexual, Trans and Intersex (LGBTI) people

Affiliates of armed opposition groups (Exclusion may be relevant)

Those deemed unlikely to be at risk from the Taliban include:

People with a vague, or no specific, fear of the Taliban (such as those who say they fear the Taliban based on ‘reputation’)

Current or former government officials, civil servants, or those otherwise formerly in official or advisory roles

People who claim they are at risk simply for having made an unsuccessful asylum claim abroad

People claiming to be ‘Westernised’ after having spent time in the West

There are some extremely notable changes from the 2022 version of the country notes. Perhaps the most noteworthy one is that current or former government officials have been moved from likely to be at risk to unlikely to be at risk from the Taliban (reasons set out from 3.3 of the note). Other changes are that the category of people who have credibly resisted (or have been perceived to resist) Taliban requests or control have been removed from those likely to be at risk.

The category of those who do not conform to Taliban expectations/mores has been reduced and narrowed. Another change is that this category previously included those deemed westernised but this is now strongly rebutted. In effect it is noted that ‘westernisation’ cannot be defined and cannot be considered a convention reason. It is also noted, however, that there is no evidence of the targeting of returnees from western countries as these countries have not forcibly returned anyone since the Taliban takeover [3.10.4].

The updated country policy information note also says, as per the executive summary, that the Taliban’s experience as an insurgency group has led to a ‘slightly more moderated approach’ and the group should not be ‘automatically equated’ with the Taliban who controlled Afghanistan between 1996-2001.

While the 2022 country policy information note indicated that there were very strong grounds supported by cogent evidence to depart from the findings of AK and AS following the Taliban takeover, this position is now reversed. The Home Office at 5.1.5 no longer consider that AK and AS are unreliable and out of date. It is worth noting that AK was promulgated in 2012 and AS was promulgated in 2020.

At 5.1.2 the Home Office now consider that internal relocation may be possible for men when an individual has a well-founded fear from an individual Taliban member based on personal dispute, feud, or rivalry.

This new interpretation should be extremely concerning to practitioners. The scope of those who the Home Office consider should be recognised as refugees has been seriously reduced.

Country policy note on the humanitarian situation

At 3.16 the Home Office now explicitly states that (in its opinion) the humanitarian situation is not so severe that in general, a single adult male in good health is likely to face a real risk of serious harm. As a result, there are not “very strong grounds supported by cogent evidence” to depart from the findings in AK and AS.

This is despite objective evidence demonstrating that the economic situation in Afghanistan remains very unstable with millions living in extreme poverty. The guidance also claims that there is currently only “reduced” access to 15,318 healthcare beds across the entire country (the population of Afghanistan is approximately 42 million).

Reference is made to some truly bleak analysis. The 2024 World Bank overview at 7.27-7.29 describes an economic stagnation which is likely to deepen unemployment and poverty and lead to more of the population suffering from food insecurity, whilst the International Rescue Committee noted [7.2.11] that half of the population lives in poverty.

The UN Office for the Coordination of Humanitarian Affairs reports at 8.1.1 that an estimated 23.3 million people will need humanitarian assistance to survive due to the residual impact of decades of conflict, years of drought conditions and continued and chronic poverty.

The Integrated Food Security Phase Classification [8.3.6] describes the Afghan economy as ‘exceedingly fragile’ and claims that 29% of the population (13.3 million people) are facing high level of acute food insecurity.

In summary, the sources relied in the country policy information note report deep and enduring concerns about poverty, unemployment, food insecurity and lack of access to healthcare for Afghan returnees. It is not considered that there are any positive signs that may lead to an improvement in the future (and it is always worth noting that the presence of the Taliban means that external groups are less able to track the security and humanitarian situation in Afghanistan).

However, the country note does not indicate that there is a general article 3 breach for returnees and notably does not give potential categories of individuals whose particular characteristics may be at particular risk of inhumane and degrading treatment if returned to Afghanistan.

It seems likely that it will be for the immigration tribunal to determine this.

What happens next?

The government is unlikely to agree a returns arrangement with the Taliban in the near future, so we may be returning to a position where thousands of Afghans who have prima facie strong asylum claims become appeal rights exhausted, with little to no prospect of removal. This would mean while superficially the asylum backlog will fall, there could be many people left in limbo. This change in the processing of claims by the Home Office seems to be part of an inevitable journey towards an updated country guidance case being heard by the Upper Tribunal.

There has not yet been a country guidance case that has assessed the situation in Afghanistan as currently run by the Taliban. Practitioners who represent Afghan asylum claimants should be prepared for their workload to increase as there is now the possibility that the immigration tribunal will once again play the determining role in many Afghan asylum cases.