NS (Afghan women) v. Secretary of State for the Home Department

An Afghani woman (appellant) seeks asylum in the United Kingdom.

The Appellant and her husband lived and worked in Kabul, Afghanistan with their three young children. After war broke out in 1992 and the destruction of the family home, the Appellant and her family left Kabul and moved to Takhar, a town in northern Afghanistan where the Appellant’s in-laws lived. In Takhar, the local militia, Jamiat-e-Islami, regularly harassed and threatened the Appellant and killed members of her family due in part to their support for the previous communist government. The Appellant’s husband was taken and detained in prison, and the Appellant lost contact with him soon afterwards. The Appellant was later raped by a militia leader whose marriage proposal she had rejected. After the rape, the leader threatened to kill her if she did not accept his proposal. She left shortly afterwards and arrived in the UK and sought asylum and refugee status. Medical tests in the UK found that the Appellant suffered from Post Traumatic Stress Disorder.

The Adjudicator refused to recognize the Appellant as a refugee and instead granted exceptional leave to remain in the country for one year. The Adjudicator found that though the Appellant had been persecuted and had legitimate reasons to fear for her safety, the persecution she had experienced did not correspond to her membership in a particular social group or any other ground for granting refugee status listed in the 1951 Refugee Convention. Also, the adjudicator noted that while it would be unsafe for the Appellant to return to Takhar, it would be reasonable for her to return to Kabul, where she was less likely to experience the type of persecution and treatment she had experienced in Takhar.

The Appellant appealed on two main grounds:

(1)    The Adjudicator had failed to consider additional factors that would render a return to Kabul harsh and unsafe.

(2)    The Adjudicator mistakenly classified the Appellant’s persecution as resulting from personal circumstances, rather than from the Appellant’s membership of a particular social group: “Women in Afghanistan without male family or tribal support.”

The Appellant’s appeal was affirmed as the Adjudicator failed to consider the political and societal climate in Afghanistan that would make the Appellant’s return to Kabul unsafe and undesirable. However the Court rejected the Appellant’s defined social group of “Women in Afghanistan without male family or tribal support” as the definition depended on non-innate characteristics that depend on other factors. The Court reviewed the application using the broader group “women in Afghanistan.”

The Court, after assessing several human rights organizations’ reports note, the implementation of Afghanistan’s new constitution and current reforms that promote equal rights among men and women, finds that there is still a significant amount of institutional and societal discrimination against woman (especially lone women). Any services the Appellant would wish to avail of, such as the police or judicial system, are likely to discriminate against or abuse her. Additionally, the larger, non-governmental community is likely to consider the Appellant’s lack of a male figure as a severe social transgression and deny her the community support she would need to reestablish herself and her family. The court also held that the Adjudicator had incorrectly characterized the Appellant’s persecution as a personal attack and that the Appellant’s membership in a particular social group (women without male support) was a substantial reason for the treatment she experienced.  The court notes that there must be some nexus, or causal relationship, between the persecution and the reason for persecution. In this case, the removal of the Appellant’s husband for political reasons effectively rendered the Appellant a woman with no male or tribal protection. It was this aspect of her situation that exposed her to the assault and torture she experienced.

The Court overruled the Adjudicator in finding that due to her factual status as a lone woman without male or tribal support Kabul city would not be a safe place for her to return to.  Without a husband, she would be viewed as marriageable  under the culture of the city and very vulnerable, potentially coercing her into forced marriage. The Appellant’s previous home was likely un-inhabitable or already occupied, assuming the Appellant even has a legal right to the property. The Appellant’s status means that finding housing or a job would be difficult, meaning that her return would likely result to living in tents or other temporary housing. In attempting to protect her daughters, the risks to the Appellant would be increased. Finally the Court noted that the Appellant’s Post Traumatic Stress Disorder would further expand the difficulties she would face on return.

58. “We find that there are difficulties with the definition ofthe group contended for by Mr Vokes, namely : “Women in Afghanistan who are without male family or tribal support.” This is because her being without male family or tribal support, are wholly contingent factors. In addition, the argument advanced that to require the Appellant to marry would be to breach a fundamental human right was insufficiently developed before us and we were therefore not persuaded that it had been shown that these noninnate characteristics of being without male family or tribal support were to be regarded as characteristics beyond that power of the individual to change except at the cost of renunciation of corehuman rights entitlements. (See Montoya, above).”

64. “[T]he evidence also shows that women in Afghanistan are exposed to serious levels of societal discrimination which is condoned by the authorities or which the authorities do nothing to protect them from. Restrictions on freedom of movement, education, employment and generally in relation to participation in public life, for women and girls continue to be imposed by members of the population, in general by adult males, but also by some local officials, such as enforcement of particular dress codes. Whilst some women are enjoying greater levels of freedom to participate more fully in society than they did under what has been called the apartheid regime of the Taliban, these benefits are not available to all women. Even where some women find paid employment outside the home, they are able to do so only when they have the support of at least one adult male. Even in Kabul, women do not walk the streets alone. To do so would be to bring themselves into disrepute, lay themselves open to threats, accusation, assault including sexual assault, and even being charged with an offence or imprisoned ‘ for their own safety’. It is also the case that although some officials do take some steps to seek to prevent forced marriages of women or girl children, where the families in question persist, then the officials do not prevent the forced marriage from taking place.”

75. “[W]e…find that the evidence does show that the ill- treatment of the Appellant and her family was not merely personal, and that political opinion, imputed political opinion as far as the Appellant was concerned as opposed to her husband, was at least an effective cause of the serious harm to which she was subjected. We further find that after her husband had been detained, it may be said that there were at that stage at least two Refugee Convention reasons to which a causal nexus has been demonstrated in respect of the serious harm meted out to the Appellant. The first is the imputed political opinion, as before. The second is her status as a woman who, at that stage, was forcibly separated from her husband and without effective protection from the warlords. Whilst it cannot be said that none of the events that took place after her husband was detained would have occurred had there been at least one adult male to protect her, who was not frail or otherwise unable to protect her, as were her father and uncle; it can be said that the lack of effective protection from an adult male or males was at least an effective cause of the serious harm that she experienced by reason of her status as a woman in Afghanistan.”

102.  “We report this decision given our findings in relation to the Appellant’s membership of a particular social group. It is important to note that the finding that women in Afghanistan are a particular socialgroup is based on the situation in that country as it now is, in its state of transition, and upon the intensity and nature of the discrimination faced by women at this point in history. It is possible, and we look forward to that time, that there will be material, durable change for the better, not only for women but for all the people of Afghanistan. It is also important to note that the facts of the Appellant’s case which are personal to her are just that, and that each case is to be considered on its facts, and those facts applied to the relevant law at the time in question.”