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New UNHCR Guidelines for asylum seekers from Afghanistan

Written by John Kelly, 13 August 2013

The United Nations High Commissioner for Refugees (UNHCR) last week updated its Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. EIN members can view a html copy of the guidelines here.

As reported by UNHCR in June, Afghanistan remained the world's top producer of refugees last year, and it has held that position for a staggering 32 years.

It's a situation unlikely to change soon. Last month, the United Nations Assistance Mission in Afghanistan (UNAMA) reported that the number of Afghan civilians killed or injured in the first six months of 2013 rose by 23 per cent compared to the same period last year. As Human Rights Watch's Heather Barr wrote recently, while international combat troops may be leaving Afghanistan, the war is escalating, not ending.

Needless to say, UNHCR Guidelines are absolutely key documents for asylum claims. The aim of this blog post is to both draw your attention to the important new guidelines and also to excerpt some of the key parts of the lengthy 88-page original.

What is set out below are some of the highlighted key summaries/conclusions from the new UNHCR Afghanistan Guidelines, with each one under its relevant heading. Any footnotes (and there are plenty throughout the Guidelines) have been omitted here.

Disclaimer: The following excerpts are for the purpose of background information only, please always refer to the full Guidelines.

First, in the section dealing with eligibility for international protection, the Guidelines list a number of potential risk profiles:

A. Potential Risk Profiles

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1. Individuals Associated with, or Perceived as Supportive of, the Government and the International Community, Including the International Military Forces

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Based on the preceding analysis, UNHCR considers that, depending on the individual circumstances of the case, persons associated with, or perceived as supportive of, the Government or the international community, including the IMF, may be in need of international refugee protection on the grounds of their (imputed) political opinion.

Depending on the specific circumstances of the case, family members and other members of the households of individuals with these profiles may also be in need of international protection on the basis of their association with individuals at risk.

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2. Journalists and Other Media Professionals

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In light of the foregoing, UNHCR considers that journalists and other media professionals who engage in critical reporting on what are perceived to be sensitive issues by either state or non-state actors, including but not limited to the armed conflict, political corruption and other government failings, and drug trafficking, may be in need of international refugee protection on the ground of their (imputed) political opinion or religious views. Depending on the specific circumstances of the case, family members of individuals with this profile may also be in need of international protection on the basis of their association with individuals at risk.

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3. Men and Boys of Fighting Age

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In light of the foregoing, UNHCR considers that, depending on the specific circumstances of the case, men and boys of fighting age living in areas under the effective control of AGEs [Anti-Government Elements], or in areas where pro-government forces and AGEs are engaged in a struggle for control, may be in need of international refugee protection on the ground of their membership of a particular social group. Depending on the specific circumstances of the case, men and boys of fighting age living in areas where ALP [Afghan Local Police] commanders are in a sufficiently powerful position to forcibly recruit community members into the ALP may equally be in need of international refugee protection on the ground of their membership of a particular social group. Men and boys who resist forced recruitment may also be in need of international refugee protection on the ground of their (imputed) political opinion. Depending on the specific circumstances of the case, family members of men and boys with this profile may be in need of international protection on the basis of their association with individuals at risk.

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4. Civilians Suspected of Supporting Anti-Government Elements

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In light of the foregoing, UNHCR considers that individuals suspected of supporting AGEs may be in need of international refugee protection on the ground of (imputed) political opinion, depending on their individual profile and circumstances of the case. In view of the need to maintain the civilian and humanitarian character of asylum, former armed elements should only be considered as asylum-seekers if it has been established that they have genuinely and permanently renounced military activities. Claims by persons with the aforementioned profile, may, furthermore, give rise to the need to examine possible exclusion from refugee status. In view of the particular circumstances and vulnerabilities of children, the application of the exclusion clauses to children needs to be exercised with great caution. Where children associated with armed groups are alleged to have committed crimes, it is important to bear in mind that they may be victims of offences against international law and not just perpetrators.

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5. Members of Minority Religious Groups, and Persons Perceived as Contravening Sharia Law

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Based on the preceding analysis, UNHCR considers that persons perceived as contravening Sharia law, including persons accused of blasphemy and converts from Islam, as well as members of minority religious groups, may be in need of international refugee protection on the ground of religion, depending on the individual circumstances of the case.

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6. Individuals Perceived as Contravening the Taliban's Interpretation of Islamic Principles, Norms and Values

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Based on the evidence presented above, UNHCR considers that persons perceived as contravening the Taliban's interpretation of Islamic principles, norms and values may, depending on the individual circumstances of the case, be in need of international refugee protection on the ground of religion and/or on the ground of imputed political opinion.

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7. Women

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Depending on the individual circumstances of the case, UNHCR considers that women falling under the following categories are likely to be in need of international refugee protection:

a) Victims and those at risk of sexual and gender-based violence;

b) Victims and those at risk of harmful traditional practices; and

c) Women perceived as contravening social mores.

Depending on the individual circumstances of the case, they may be in need of international refugee protection on the grounds of their membership of the particular social group defined as women in Afghanistan, their religion, and/or their (imputed) political opinion.

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8. Children

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Depending on the particular circumstances of the case, UNHCR considers that children falling under the following categories may be in need of international refugee protection:

a) Children from areas where either AGEs or elements of the ANSF [Afghan National Security Forces] use underage recruitment;

b) Children from social milieus where bonded or hazardous child labour is practised;

c) Victims of violence against children, including sexual and gender-based violence, as well as children from social milieus where such violence is practised; and

d) School-age children, particularly girls.

Depending on the individual circumstances of the case, they may be in need of international protection on the ground of their membership of a particular social group, their religion and/or their (imputed) political opinion.

Asylum claims made by children, including any examination of exclusion considerations for former child soldiers, need to be assessed carefully and in accordance with the UNHCR Guidelines on child asylum claims.

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9. Victims of Trafficking or Bonded Labour and Persons at Risk of Being Trafficked or of Bonded Labour

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In light of the foregoing, UNHCR considers that people, especially women and children, in particular social-economic circumstances that create vulnerabilities to trafficking or bonded labour, may be in need of international refugee protection on the grounds of their membership of a particular social group, depending on the individual circumstances of the case. This includes individuals who have previously been victims of trafficking or bonded labour who may be in a position of heightened vulnerability to being re-trafficked or being re-subjected to bonded labour.

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10. Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Individuals

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In light of the strong social taboos, as well as the criminalization of same-sex relations, UNHCR considers that LGBTI individuals are likely to be in need of international refugee protection on account of their membership of a particular social group based on their sexual orientation and/or gender identity, since they do not, or are perceived not to conform to prevailing legal, religious and social norms. It should be borne in mind that LGBTI individuals cannot be expected to change or conceal their identity in order to avoid persecution. Furthermore, the existence of significant criminal sanctions for same-sex relations is a bar to State protection, including where persecutory acts are perpetrated by non-State actors such as family or community members.

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11. Members of (Minority) Ethnic Groups

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Based on the foregoing, UNHCR considers that individuals who belong to one of Afghanistan's (minority) ethnic groups, particularly in areas where they do not constitute an ethnic majority, may be in need of international refugee protection on the basis of their nationality or ethnicity/race, depending on the individual circumstances of the case. Relevant considerations include the relative power position of the ethnic group in the applicant's area of origin, and the history of inter-ethnic relations in that area.

Individuals who belong to one of Afghanistan's dominant ethnic groups may also be in need of international refugee protection on the basis of their nationality or race, depending on the individual circumstances of the case. Relevant considerations include the question of whether the ethnic group also constitutes a majority in the area of origin or constitutes a minority there.

International protection needs based on ethnicity/race may overlap with those based on religion and/or (imputed) political opinion. Due consideration should also be given to whether the person exhibits other risk factors outlined in these Guidelines. In light of the strong ethnic divisions that persist in Afghanistan, due consideration should also be given to the potential deleterious impact on inter-ethnic relations of the security transition and ongoing political processes in the country.

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12. Individuals Involved in Blood Feuds

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In light of the foregoing, UNHCR considers that persons involved in a blood feud may, depending on the circumstances of the individual case, be in need of international refugee protection on account of membership of a particular social group. Claims by persons involved in blood feuds may, however, give rise to the need to examine possible exclusion from refugee status. Depending on the specific circumstances of the case, family members, partners or other dependants of individuals involved in blood feuds may also be in need of international protection on the basis of their association with individuals at risk.

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13. (Family Members of) Business People and Other People of Means

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Practices of illegal taxation would not normally rise to the level of persecution, nor would other forms of crime. However, certain methods of extortion may rise to the level of persecution, including kidnapping for ransom, while other forms of extortion may contribute to persecution on cumulative grounds. However, in the context of Afghanistan, in many cases of extortion there may be no nexus between the extortionary practice and one of the 1951 Convention grounds. Where such a nexus does exist, for example where wealthy individuals are targeted for kidnapping on the basis of their ethnicity or (imputed) political opinion, the individual concerned may, depending on the individual circumstances of the case, be in need of international protection.

UNHCR considers that separate considerations apply to the situation of family members of wealthy business people. Where family members, including children, are at risk of kidnapping for ransom for reason of their family relations with the wealthy individual in question, they may, depending on the individual circumstances of the case, be in need of international protection on the basis of their membership of a particular social group.

Next, the highlighted key summaries from the section dealing with internal flight alternative or relocation:

B. Internal Flight or Relocation Alternative for Individuals at Risk of Persecution

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1. Relevance Analysis

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Where the claimant has a well-founded fear of persecution at the hands of the State or its agents, there is a presumption that consideration of an IFA/IRA is not relevant for areas under the control of the State. In light of the available evidence of serious and widespread human rights abuses by AGEs in areas under their effective control, as well as the inability of the State to provide protection against such abuses in these areas, UNHCR considers that an IFA/IRA is not available in areas of the country that are under the effective control of AGEs, with the possible exception of individuals with previously-established links with the AGE-leadership in the proposed area of relocation.

UNHCR considers that no IFA/IRA is available in areas affected by active conflict, regardless of the actor of persecution.

Where the agents of persecution are AGEs, consideration must be given to whether the persecutor is likely to pursue the claimant in the proposed area of relocation. Given the wide geographic reach of some AGEs, a viable IFA/IRA may not be available to individuals at risk of being targeted by such groups. It is particularly important to note the operational capacity of the Taliban, the Haqqani network, Hezb-e-Islami Hekmatyar and other armed groups to carry out attacks in all parts of the country, including areas that are not under the effective control of AGEs, as evidenced for example by reports on high-profile complex attacks in urban areas under the effective control of pro-government forces.

Where the claimant may be exposed to further risks of persecution or serious harm at the hands of AGEs in the proposed area of relocation, the evidence provided in Section II.C needs to be taken into account regarding the limitations on the ability of the State to provide protection as a result of ineffective governance and high levels of corruption.

For individuals who fear harm as a result of harmful traditional practices and religious norms of a persecutory nature, such as women and children and LGBTI individuals, the endorsement of such norms and practices by large segments of society and powerful conservative elements at all levels of government needs to be taken into account as a factor that weighs against the relevance of an IFA/IRA.

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2. Reasonableness Analysis

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Against this background, UNHCR considers an IFA/IRA as reasonable only where the individual can expect to benefit from meaningful support of his or her own (extended) family, community or tribe in the area of prospective relocation. The only exception to this requirement of external support are single able-bodied men and married couples of working age without identified specific vulnerabilities as described above, who may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control.

As said above, these are only brief excerpts provided for background information so please always refer to the full Guidelines - available here on EIN or here on the UNHCR website.

About the author: John Kelly is the editor of the HJT Country Reports database on EIN
Any views expressed are those of the author and do not necessarily represent the views of EIN