“it seems reasonable to assume that the continuing and indeed intensifying and expanding scope of the conflict, and the increasing level of violence and insecurity, is a major factor”
“the objective evidence suggests that, even now, the police have neither the capacity nor the willingness to provide protection for individuals at risk from particular non-state actors”
“The information included in this section demonstrates that despite the fact that Kabul is considered safer than other provinces, it has become increasingly insecure as demonstrated by the incidence and strength of insurgent attacks carried out in the capital, including in fortified areas.”
“The insurgency has expanded far beyond its stronghold in the south east. Transcending its traditional Pashtun base, the Taliban is bolstering its influence in the central-eastern provinces by installing shadow governments and tapping into vulnerabilities of a central government crippled by corruption and deeply dependent on a corrosive war economy. Collusion between insurgents and corrupt government officials in Kabul and the nearby provinces has increased, leading to a profusion of criminal networks in the Afghan heartland.”
“Internal armed conflict in Afghanistan has had multiple causes. Much like the jihad against Soviet forces from 1979-89, the conflict since 2001 is an Islamic insurgency against an infidel invader, currently led by Taliban in alliance with the other two major insurgent groups in the east (the Haqqani network and Hekmatyar’s HIG). The current conflict is also a civil war. Some view it as a war between Ghilzai Pashtuns (who form the core of the Taliban) and the victorious Northern Alliance (Durrani Pashtuns, Tajiks, Uzbecks and Hazaras). However, the Taliban appear to draw support from all Afghan ethnic groups. At the local level, competition between kinship groups frames a violent competition for resources (land, water, control of routes, and narcotics revenue). For example, the conflict in Northern Helmand is primarily a struggle between three Pashtun tribal groups, the Alizai, Alikozai, and Ishaqzai. The situation in central Helmand is less defined along tribal lines due to the complex tapestry of kinship groups, but still much of the insurgency is defined by various groups resisting abuse by the Afghan police who are locally dominated by the Noorzai tribe. This illustrates the larger point that since Afghan politics is based on patrimonialism, the natural order is for government positions to be used to sustain one kinship group at the expense of others. This, in turn, further challenges the simple view of the conflict as an Islamic insurgency against an elected government. Finally, the conflict also has a significant transborder dimension. The Taliban developed in the 1990s with the support of the Pakistani intelligence service (ISI) in the two unruly provinces that border Afghanistan, Baluchistan and the North-West Frontier. The Taliban retreated across the border to Pakistan in 2002, and continue to generate forces and direct attacks against the Afghan government and ISAF from these two provinces with the support of the ISI.”
“Between 600,000 and 2.5 million civilians were killed in the Soviet War. The Mujahideen Civil War also saw widespread indiscriminate violence against civilians; for example, around 10,000 were killed in the struggle for Kabul in 1993. In contrast, civilian fatalities since 2006 have been relatively modest. Starting from under 1,000 in 2006, direct civilian deaths from the conflict have risen by approximately 500 each year to over 2,700 in 2010. Civilian casualties caused by ISAF attract much media attention and Afghan government criticism, but most civilians are killed by insurgent action (ranging from a low of 55 per cent in 2008 to highs of 72 per cent in 2006 and 75 per cent in 2010). Afghanistan is the largest producer of refugees in the world, both in absolute numbers and as a proportion of the national population. Between 2006-2009, around 2 million Afghans were refugees (out of an estimated Afghan population of 30 million). Many of these are legacy refugees from the 1980s, when punishing attacks on the population caused 5 million to flee into Iran and Pakistan; the Mujahideen Civil War that followed discouraged many from returning. But it is also indicative of the general lack of security, especially in the Southern and Eastern provinces. In rural communities, civilians face daily threats of violence from corrupt security forces, insurgents, organised crime, and other armed groups. Afghan police commonly prey on the civilian communities they are supposed to protect (though this problem has improved since 2010). In the 1990s, the Taliban were responsible for some massacres, most notably in Herat. Since 2006, the Taliban have exercised more discipline, in order to win local consent. However, when they are unable to subvert tribal clans through subtle means, the Taliban will use violence and intimidation.”
“the rising tide of violence and bloodshed in the first half of 2011 brought injury and death to Afghan civilians at levels without recorded precedent in the current armed conflict”
“…episodes of targeting of civilians because of their association with one of the parties in the conflict have been rare. The main exception is represented by government officials, whom the insurgents have been proactively targeting and increasingly so… ethnic and religious minorities have not been targeted.”
“In sum, for the Afghan urban dweller, there are two main sources of risk: one, quite small, is to get caught in a terrorist attack, usually taking place in city centres. The other is to get caught in the repression, which is only likely for those of recent immigration into the city from a village or from the refugee camps in Pakistan.”
“Targeted killings continued at last year’s high rate. The report notes that those targeted are in general those civilians perceived to support the Afghan government or international forces. It noted attacks on provincial and district governors, provincial council members, chief of police, members of peace councils, tribal elders and fighters entering the reintegration program, off-duty police, teachers, educational officials as being singled out for targeted killings. Between January and June 2011, UNAMA documented 190 targeted killings compared to 181 in the same period in 2010.”
“[i]n comparative terms the on-going Afghan conflict has not been particularly bitterly targeted at civilians. Although civilian casualties have gradually increased year-on-year, they have done so less than proportionally with the increase in the number of violent incidents from 2008 onwards. This suggests that the parties in the conflict have been trying to restrain themselves and contain civilian casualties.”
“As the year progressed, the conflict gathered intensity outside those southern provinces where fighting has historically been concentrated and worsened in several provinces in the southeastern and eastern regions. In the last half of 2011, although Kandahar and Helmand remained the provinces with the highest number of civilian deaths with 290 civilians killed; this number is a 39 per cent decrease compared to the same period in 2010. In contrast, the southeastern provinces of Khost, Paktita and Ghazni and eastern provinces of Kunar and Nangarhar saw a combined total of 446 deaths, a 34 per cent increase compared with the same period in 2010. Between July and December 2011, civilian deaths in the central region jumped from 128 to 230, an 80 per cent increase from the previous year. This rise was prominent in Kabul province, where civilian deaths increased from 23 in the last half of 2010 to 71 in 2011. 61 of the 71 civilian deaths in Kabul during this period occurred as a result of six suicide attacks. Although targeted killings by AGEs decreased in the southern, central and northeastern regions in 2011, country-wide such killings rose by six per cent, with huge increases in the western region (255 per cent), the southeastern region (14 per cent) and the eastern region (107 per cent). This shift was particularly evident in the second half of the year….”
“As in other provinces, the Taliban combines assassination and intimidation to consolidate its hold on Ghazni, particularly targeting local Afghan security forces.”
“[c]ertain groups were also identified to be more at risk in the current period. First, the Taliban target anyone who is perceived to be working for the current government, in any position. Many respondents in Ghazni city were identified to have government-related positions in a variety of roles – in the police, as government staff and even as teachers… Second, anyone who was identified as supporting or [being] part of the Taliban faced being raided, interrogated or killed by the government and coalition forces.”
“In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces . Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.” (Emphasis added).
“UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary.”
“…it was UNHCR’s view at the time of the research in 2010 that there was a worsening security situation in certain parts of the country – in particular Helmand, Kandahar, Kunor and parts of Ghazni and Khost province – with high levels of violence and human rights violations linked to the conflict. Moreover, other provinces including Uruzgon, Zabul, Paktita, Nangahar, Badghis, Paktya, Wardak and Kunduz were also experiencing significant although fluctuating levels of violence. The violence continued to cause significant population displacement and high numbers of civilian casualties, in particular due to suicide attacks and the use of improvised explosive devises. UNAMA documented 3,268 civilian casualties during the first six months of 2010 alone.”
“3.6.11 At the end of 2010, UNHCR considered that the worsening security environment and increasing number of civilian casualties was such that the situation in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces could be characterised as one of generalised violence. However, whilst there is indiscriminate violence in some parts of Afghanistan, it is not currently at such a level in Afghanistan generally or a material part of it, that substantial grounds exist for believing that any civilian would, solely by being present there, face a real risk of serious harm. Given the complexity and fluidity of the situation, asylum applications by Afghans claiming to flee generalised violence in parts of Afghanistan should each be assessed carefully, in light of the current country information specific to the profile of the applicant. 3.6.12 To establish a claim under Article 15(c) of the Qualification Directive it will therefore be necessary for a claimant to establish that particular factors place him or her at additional risk above that which applies to the civilian population generally, such that he or she is at real risk of serious harm from the levels of indiscriminate violence that do exist, and that internal relocation to a place where there is not a real risk of serious harm is not reasonable. Case owners must consider carefully whether the existence of such factors mean that the harm they fear is not in fact indiscriminate, but targeted, if not at them personally, at a Refugee Convention defined population to which they belong, in which case a grant of asylum is likely to be more appropriate.”
“2.3.7 State protection outside of Kabul will only be accessible in exceptional cases. In Kabul the authorities, including the ISAF forces, are in general willing to offer protection to citizens. However, case owners must bear in mind that for the reasons above, their ability to provide effective protection is limited. It is important that case owners refer to the most up to date country information to ascertain whether in the circumstances prevailing at the time the decision is made, effective protection is available in Kabul for an individual applicant, taking full account of their personal circumstances. 2.3.8 Effective protection is not available, even in Kabul, for single women or female heads of household without a male support network.”
“2.4.5 The traditional extended family and community structures of Afghan society continue to constitute the main protection and coping mechanism, particularly in rural areas where infrastructure is not as developed. Afghans rely on these structures and links for their safety and economic survival, including access to accommodation and an adequate level of subsistence. In certain circumstances, relocation to an area with a predominantly different ethnic/religious make-up may also not be possible due to latent or overt tensions between ethnic/religious groups. 2.4.6 In practice, all returns are currently to Kabul. Careful consideration must be given to any other place of proposed internal relocation and how it will be accessed, taking account of the latest security, human rights and humanitarian conditions in the prospective area of relocation at the time of the decision, including the availability of traditional support mechanisms, such as relatives and friends able to host the displaced individuals; the availability of basic infrastructure and access to essential services, such as sanitation, health care and education; and their ability to sustain themselves, including livelihood opportunities. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. 2.4.7 Unescorted internal travel for single women and female heads of household who do not have a male support network can be extremely difficult. Discrimination and harassment are common, as would be establishing themselves in an area where they did not have such a support network. Sufficient protection is not available to them, even in Kabul, and it would therefore generally be unduly harsh to expect single women and female heads of household who have a well-founded fear of persecution in one part of Afghanistan, and who do not have a male support network, to relocate internally.”
“In assessing the evidence, the one thing which struck us particularly was Professor Farrell’s assertion that the number of civilian fatalities directly caused by both sides to the conflict in Afghanistan (including those assassinated by the Taliban/Al Qaeda) was low in comparison with conflicts of a similar size elsewhere. This emerges in particular from the questions put to Professor Farrell regarding page 17 of his report. Whilst it is apparent that any assessment of risk to civilians needs to cover not only those casualties, but also those who are injured as a result of intimidation by insurgents (which the table on that page does not cover and as to which no reliable data was presented), Professor Farrell was nevertheless clear that the current conflict in Afghanistan cannot be said to involve a high level of civilian casualties (albeit that he urged us to take account of what he considered were the conflict’s indirect effects). We conclude that the number of direct victims of indiscriminate violence, arising as a result of the armed conflict, does not demonstrate that the appellant, upon whom the burden of proof lies, has established that there is such a high level of indiscriminate violence that there are substantial grounds to establish that he would, solely by being present in that country, face a real risk which threatens his life or person. We reach this view bearing in mind what the Court of Justice had to say. The appellant has not shown that incidents of indiscriminate violence are happening on so wide a scale, and/or in such a way, as to pose a serious threat of real harm.
“Whilst being aware of the reports of serious human rights violations in Afghanistan…the court does not find them to be of such a nature as to show, on their own, that there would be a violation of the Convention if the applicant were to return to that country. The Court thus has to establish whether the applicant’s personal situation is such that her return to Afghanistan would contraveneArticle 3 ECHR .”
“ Article 9 Acts of persecution 1. Acts of persecution within the meaning of Article 1A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made underArticle 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). 2. Acts of persecution as qualified in paragraph 1, can, inter alia , take the form of: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment; (e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2); (f) acts of a gender-specific or child-specific nature. 3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1. Article 15 Serious harm Serious harm consists of: (a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. Article 8 Internal protection 1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. 2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member states shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant. 3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.”
“(a) The Article seeks to elevate the state practice of not returning unsuccessful asylum seekers to war zones or situations of armed anarchy for reasons of common humanity into a minimum standard ( QD [i.e. QD(Iraq )[2009] EWCA Civ 620 ] at [21]). (b) The scope of protection is an autonomous concept distinct from and broader than Art 3 protection even as interpreted by the European Court of Human Rights (ECtHR) in NA v United Kingdom ( Elgafaji at [33]-[36]; QD at [20], [35]; HH and Others ) at [31]. (c) It is concerned with ‘threat…to a civilian’s life or person’ rather than to specific acts of violence…the threat is inherent in a general situation of …armed conflict… The violence that gives rise to the threat is described as indiscriminate, a term which implies that it may extend to people irrespective of their personal circumstances ( Elgafaji [34]). (d) The Article is intended to cover the ‘real risks and real threats presented by the kinds of endemic acts of indiscriminate violence – the placing of car bombs in market places; snipers firing methodically at people in the streets – which have come to disfigure the modern world’. It is concerned with ‘serious threats of real harm’ ( QD at [27] and [31]). (e) ‘Individual’ must be understood as covering harm to civilians irrespective of their identity where the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level that substantial grounds are shown for believing that a civilian… would solely on account of his presence on the territory… face a real risk of being subjected to the serious threat’ ( Elgafaji [35]). (f) ‘The more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required’ ( Elgafaji [39]). (g) A consistent pattern of mistreatment is not a necessary requirement to meet the real harm standard. ‘The risk of random injury or death which indiscriminate violence carries is the converse of consistency’ ( QD at [32]). (h) There is no requirement that the armed conflict itself must be exceptional but there must be ‘an intensity of indiscriminate violence great enough to meet the test spelt out by the ECJ’ and this will self evidently not characterise every such situation ( QD at [36]). (i) ‘The overriding purpose of Article 15(c) is to give temporary refuge to people whose safety is placed in serious jeopardy by indiscriminate violence, it cannot matter whether the source of the violence is two or more warring factions (which is what conflict would ordinarily suggest) or a single entity or faction’ ( QD at [35]). (j) ‘Civilian’ means all genuine non-combatants at the time when the serious threat of real harm may materialise ( QD [37]).”
“In paragraph 21 of my opinion in Januzi I summarised the correct approach to the problem of internal relocation in terms with which all my noble and learned friends agreed: ‘The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so….There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department ,[2002] 1 WLR 1891 , para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls… All must depend on a fair assessment of the relevant facts’. Although specifically directed to a secondary issue in the case, these observations are plainly of general application. It is not easy to see how the rule could be more simply or clearly expressed. It is, or should be, evidence that the enquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant. There is no warrant for excluding, or giving priority to, consideration of the applicant’s way of life in the place of persecution. There is no warrant for excluding, or giving priority to consideration of conditions generally prevailing in the home country. I do not underestimate the difficulty of making decisions in some cases. But the difficulty lies in applying the test, not in expressing it. The humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution in their home country or some part of it; it is not to procure a general levelling-up of living standards around the world, desirable though of course that is.”
“As the UNHCR put it in their very helpful intervention in this case: ‘…the correct approach when considering the reasonableness of IRA [internal relocation alternative] is to assess all the circumstances of the individual’s case holistically and with specific reference to the individual’s personal circumstances (including past persecution or fear thereof, psychological and health condition, family and social situation, and survival capacities). This assessment is to be made in the context of the conditions in the place of relocation (including basic human rights, security conditions, socio-economic conditions, accommodation, access to health care facilities), in order to determine the impact on that individual of settling in the proposed place of relocation and whether the individual could live a relatively normal life without undue hardship’. I do not understand there to be any difference between this approach and that commended by Lord Bingham in paragraph 5 of his opinion. Very little, apart from the conditions in the country to which the claimant has fled, is ruled out.”
“21. We are also all agreed that the test for internal relocation under the Refugee Convention is not to be equated either with a ‘well-founded fear of persecution’ under the Convention or with a ‘real risk of ill-treatment’ contrary toarticle 3 of the European Convention on Human Rights . By definition, if the claimant had a well-founded fear of persecution, not only in the place from which he has fled, but also in the place to which he might be returned, there can be no question of internal relocation. The question pre-supposes that there is some place within his country of origin to which he could be returned without fear of persecution. It asks whether, in all the circumstances, it would be unduly harsh to expect him to go there. If it is reasonable to expect him to go there, then he can no longer claim to be outside his country of origin because of his well-founded fear of persecution. Mercifully, the test accepts that if it is not reasonable to expect him to go there, then his continued absence from his country of origin remains due to his well-founded fear of persecution. 22. Further, although the test of reasonableness is a stringent one – whether it would be ‘unduly harsh’ to expect the claimant to return – it is not to be equated with a real risk that the claimant would be subjected to inhuman or degrading treatment or punishment so serious as to meet the high threshold set byarticle 3 of the European Convention on Human Rights . As Lord Bingham points out, this is not what was meant by the references to article 3 in Januzi , including what was said by my noble and learned friend, Lord Hope of Craighead, when he referred to ‘the most basic of human rights that are universally recognised’ at para 54. Obviously, if there were a real risk of such ill-treatment, return would be precluded by article 3 itself as well as being unreasonable in Refugee Convention terms. But internal relocation is a different question.”
“… the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection”) and GS , paras 62 and 74, that even if we were to find that ordinary civilians are not at Article 15(c) risk anywhere in Afghanistan, we should nevertheless identify intermediate categories of persons who might be at risk by virtue of being less able than ordinary civilians to avoid the on-going violence. We refer to these as “intermediate categories” as those submissions clearly meant to identify categories falling short of the outright risk categories ((i)-(xi)) as identified by UNHCR in its17 December 2010 Eligibility Guidelines cited at para 86 above. Mr Vokes and Ms Rutherford gave as examples of intermediate categories: “ fruit sellers outside public buildings, day labourers on state construction projects who need as a necessity of life to be employed in this fashion or small farmers or landless labourers who out of economic necessity have to keep farming in situations of armed warfare breaking out on their land or the land that they work. The latter category would include businessmen, more senior state officials, war lords, large landowners.”
“the degree of indiscriminate violence characterising the armed conflict taking place… (reach) such a high level that substantial grounds are shown for believing that any civilian, returned to the relevant country or, as the case may be, to the relevant region, would solely on account of his presence on the territory or that country or region, face a real risk of being subject to that threat ?”
“The information included in this section demonstrates that de spite the fact that Kabul is considered safer than other provinces , it has become increasingly insecure as demonstrated by the incidence and strength of insurgent attacks carried out in the capital, including in fortified areas”
“The following incidents resulting in civilian deaths and injury detailed in this section are not exhaustive, but rather indicative of the current security situation in Ghazni province”
“…whilst the Strasbourg Court’s guidance as to the general approach to evidence is part of its jurisprudence, to be followed by United Kingdom courts and tribunals to the extent demanded by the House of Lords and Supreme Court authorities, the weighing of the evidence and the conclusions as to the relative weight to be placed on the items of evidence are ultimately matters for the tribunal. Whilst the factual finding the Strasbourg Court has made as a result of applying its own guidance is something to which the domestic tribunal must have regard, the tribunal is not bound to reach the same finding.”
“If there are no personal circumstances increasing risk, an especially high level of indiscriminate violence is necessary; if personal circumstances increasing risk are present, a lower level of indiscriminate violence will suffice. These factors that increase risk primarily include those personal circumstances that make the applicant appear more severely affected by general, non-selective violence, for example because he is forced by reason of his profession – e.g. as a physician or journalist – to spend time near the source of danger…”
“30. The appellant has said that the risk to him arises from the threat posed by Ghulam Mohammad and Jumma Khan. He has not described a situation of indiscriminate violence or a fear of being caught up in the general violence in the country. I note that his uncle lives in Kabul and that he appears to have carried on a business there even in the face of the conflict which has continued there. It is clear that there is a high level of indiscriminate violence and the COIR report for June 2009 describes an increasingly difficult situation in Kabul, with elements of the Taliban and criminal forces joining. Paragraph 8.17 of the report states that of the four doors leading out of Kabul, four are compromised by Taliban activity. The report goes on to describe a hostile and threatening situation for the security forces as well as the general civilians. I note also that in the case of QD and AD the Court confirmed that AIT was not necessary to establish whether the risk of serious violence came from, namely whether it arose out of the armed conflict or criminality and that often it would be difficult to distinguish. Whereas it is usually argued that it would be safe to return an individual to Kabul because of the presence of the international forces, based on the information contained in the COIR I am less inclined to accept that the appellant would be safe if returned there, even noting that his uncle has resided there for some time and none of his evidence suggest a fear of the general situation in Afghanistan. However I note that the COIR report also suggests that Ghazni is assessed as being insecure. Most of the areas are described as being insecure. I am therefore satisfied that at the present time the appellant has shown that there is a real risk that the appellant's life or person would be threatened as a result of indiscriminate violence. I am not persuaded that there is an area to which he could relocate without facing a real risk.” 3. There are two related reasons why I consider the IJ's reasoning to be legally erroneous. First he appeared to consider that the Elgafaji test of “a high level of indiscriminate violence” was met in respect of Kabul simply by virtue of the June 2009 COIR Report describing the situation there as “increasingly difficult”, hostile and threatening for civilians and security forces as well and noting that gates leading out of Kabul were compromised by Taliban activity. That approach ignored the fact that the Elgafaji test as analysed in QD (Iraq ) requires not just a “high level of individual violence” but “such a high level ... that substantive grounds exist for believing that an applicant ... would, solely by being present there, face a real risk which threatens his life or person”