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FOURTH
SECTION
CASE OF J.H. v. THE UNITED KINGDOM
(Application
no. 48839/09)
JUDGMENT
STRASBOURG
20
December 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of J.H. v. the United
Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Nicolas Bratza,
Päivi
Hirvelä,
George Nicolaou,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48839/09) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by an Afghan
national, J.H. (“the applicant”), on 10 September 2009.
- The
applicant was represented by Ms N. Mole, a lawyer practising in
London with the AIRE Centre. The United Kingdom Government (“the
Government”) were represented by their Agent, Ms Y. Ahmed of
the Foreign and Commonwealth Office.
- The
applicant alleged that, if expelled from the United Kingdom to
Afghanistan, he would face a real risk of ill-treatment contrary to
Article 3 and/or a violation of Article 2 of the Convention.
- On
15 September 2009, the Vice-President of the Fourth Section decided
to apply Rule 39 of the Rules of Court, indicating to the Government
that it was desirable in the interests of the parties and the proper
conduct of the proceedings before the Court that the applicant should
not be expelled to Afghanistan pending the Court’s decision.
- On
13 October 2009, the Vice-President of the Fourth Section decided to
give notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 1), to grant priority to the
application (Rule 41 of the Rules of Court) and to grant the
applicant anonymity (Rule 47 § 3 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicant claimed that he was born in 1991. The Government contested
that and claimed that he was born in 1988. He currently lives in
London.
A. The domestic proceedings in relation to the
applicant’s brother
- On
12 December 2003, the applicant’s older brother, SH, arrived in
the United Kingdom and made an application for asylum based on the
risk to him as the son of a high-ranking member of the Communist
People’s Democratic Party of Afghanistan (“PDPA”).
That application was refused by the Secretary of State on 19 December
2003.
- On
11 May 2004, SH’s asylum appeal was allowed by an Adjudicator
of the then Immigration Appellate Authority (“IAA”). The
Adjudicator accepted that SH’s father had been a prominent,
high-ranking member of the PDPA who had been in touch with its
highest officials and who had also been a member of the central
committee responsible for policy making. He also accepted that SH’s
father was “known” by armed factions; was without any
existing political party or tribal protection in Afghanistan; was
living outside Afghanistan; and would be at risk upon return. The
Adjudicator noted that SH had, in later years, made some contacts and
forwarded documents to others on behalf of his father and that a
powerful person with political influence had occupied the family land
for a considerable time. He concluded that the evidential basis for
an historical and present day interest in SH had been established. In
the circumstances, the Adjudicator found that the applicant’s
brother fell “fairly and squarely” within the protection
category set out by the United Nations High Commissioner for Refugees
(“UNHCR”) as a relative of a former PDPA member, and that
there were substantial grounds for believing that he would face a
real risk of ill-treatment contrary to Article 3 of the Convention if
he were to be returned to Afghanistan.
- As
a result, the applicant’s brother was granted refugee status in
the United Kingdom by the Secretary of State.
B. The domestic proceedings relating to the applicant
- The
applicant arrived in the United Kingdom on 3 July 2009 and was
arrested by the police as an illegal immigrant.
- On 6 July 2009, he claimed asylum and claimed to be 17
years of age, giving his date of birth as 30 July 1991. The factual
basis of his asylum claim was similar to that of his brother, SH, and
he also relied upon his father’s previous position as a
high-ranking member of the PDPA. He claimed that his father had been
a close friend and the personal doctor of several prominent
politicians, including Dr Najibullah (the President of Afghanistan
between 1986 and 1992) and other Government ministers. He claimed
that, in 1992 when the communist regime had collapsed, his father had
been forced to flee Afghanistan for the Russian Federation. He
claimed that his father had continued to be politically active in
opposition to a number of warlords and people involved in the current
Afghan Government, including Generals Dostum, Fahim and Sayat who he
had known personally. The applicant claimed that, after his father
had left Afghanistan, his family had been forced to move to Khost in
eastern Afghanistan where they had lived for over a decade using
different surnames so that they would not be identified.
Approximately six years ago, his family had moved to Kabul for seven
or eight months. During that time, members of the National Security
Intelligence had come to their home on two or three occasions. On the
last occasion, they had arrested his uncle who had subsequently been
detained for a year. They had also tried to arrest the applicant’s
brothers. The family had therefore moved to stay with another uncle,
but whilst there, one of his brothers, FH, had been shot and killed
in 2003. The applicant had travelled to Pakistan with his mother and
a younger brother where he had lived for five or six years before
travelling alone with an agent to the United Kingdom via Iran,
Greece, Italy and France.
- On the same date, two social workers from Liverpool
Social Services assessed the applicant as being significantly over
the age of 21 and in the region of 25 years of age. In coming to that
conclusion, they stated that they had considered his physical
appearance, general demeanour, account of his life in Afghanistan and
Pakistan and his experiences during his travel to the United Kingdom.
- On 4 August 2009, his application for asylum was
refused by the Secretary of State, who considered that his account
was vague and contradictory, and that it was not plausible that he
would not be able to recollect any of the significant details of his
life in Khost, his journey to Pakistan or the activities of his
father. In particular, it was not accepted that his father was still
politically active because it was implausible that the applicant
would not be able to recollect any details of his father’s
activities given that he had remained in relatively regular contact
with him. It was also not considered to be credible that the Afghan
authorities or any warlords would be interested in the applicant
given, inter alia, the fact that he had not been politically
active himself; the length of time that had passed since his father
had left Afghanistan; and the fact that he had lived in Afghanistan
without problems for ten years before leaving. It was also noted that
his father had voluntarily returned on one trip to Afghanistan,
undermining his claim that his father was at risk there due to his
high profile. His claim that the death of his brother, FH, was
related to his father’s political activity was considered to be
entirely speculative. His account of events in Kabul was rejected
because the details of the same were vague and because they
contradicted the account that his brother had given at his appeal
hearing in 2004. His credibility was considered to be undermined by
his failure to claim asylum in Greece, Italy or France. Even taking
his claim at its highest, it was considered that he could relocate
within Afghanistan to avoid any problems from warlords.
- On 14 August 2009, the applicant’s appeal was
dismissed by an Immigration Judge at the then Asylum and Immigration
Tribunal (“AIT”). The Immigration Judge acknowledged that
the applicant’s brother’s asylum appeal had been
successful in 2004 because the Adjudicator had accepted that his
father had occupied a position of prominence and a high-ranking
position within the PDPA. Nevertheless, the Immigration Judge
referred to the later AIT country guideline determination of SO
and SO (KhaD – members and family) Afghanistan CG [2006] UKAIT 00003 (see paragraphs 24-25
below) and found that there were differences between the claims of
the two brothers, including the fact that the applicant had never
been involved in any political activity, whilst his brother had
carried out some activities on behalf of their father which might
have drawn the authorities’ attention to him. In addition, the
Immigration Judge did not accept that their father continued to be
politically active or to have a high profile in Afghanistan, because
the only evidence of any political activity related to events over 17
years previously, prior to 1992, when the applicant had still been a
small child, and politics and personnel in Afghanistan had changed
since that time. Even if his father had continued to be politically
active, the Immigration Judge did not accept that the Afghan
authorities or warlords would have any adverse interest in the
applicant, given his lack of political profile and education; his age
on leaving Afghanistan; the fact that he had only been a small child
when his father had been politically active; and recent political
developments in Afghanistan.
- The Immigration Judge also made a series of adverse
credibility findings against the applicant due to his vagueness when
giving evidence; his failure to claim asylum in safe countries en
route to the United Kingdom, including Greece, Italy and France; and
the discrepancies between his account and that of his brother
including, inter alia, the level of contact that had taken
place between the various family members since their respective
departures from Afghanistan and whether or not one brother FH had
been shot. In particular, it was not accepted that SH would not have
mentioned during his own asylum application that one of their
brothers had been shot had such an event occurred. Even if his
brother FH had died, the Immigration Judge did not accept that he had
been killed by the Mujaheddin, given that the applicant himself had
stated that he did not know who had killed him but thought it was the
Mujaheddin. The Immigration Judge considered that the applicant had
used his age as a convenient cover whenever he did not know the
answer to a question even though he had been age-assessed by social
workers as being between 20 to 25 years of age. The Immigration Judge
considered that it would have been expected that the applicant would
have discussed matters with his family and would have had some
awareness of his father’s political activities.
- Finally, the Immigration Judge did not accept that the
level of indiscriminate violence in Afghanistan, and in Kabul in
particular, reached a level such as to constitute a real risk to the
applicant.
- On 19 August 2009, his application for reconsideration
was dismissed by a Senior Immigration Judge at the AIT because there
had been no error of law.
- On 17 September 2009, his application for
reconsideration was dismissed by the High Court because the appeal
determination did not disclose any error of law. The findings of fact
and the findings in relation to credibility were matters for the
Immigration Judge having, as he had done, properly directed himself
in relation to the law. The reasons for his findings were clear and
carefully expressed.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Primary legislation
-
Section 82(1) of the Nationality, Immigration and Asylum Act 2002
(“the NIA Act 2002”), provides a right of appeal against
an immigration decision made by the Secretary of State for the Home
Department.
- Until
4 April 2005, appeals in asylum, immigration and nationality matters
were heard by the IAA.
22. From
4 April 2005, the then AIT replaced the former system of Adjudicators
and the Immigration Appeal Tribunal (“IAT”). Section
103A of the Nationality, Immigration and Asylum Act 2002 (as amended
by the Asylum
and Immigration (Treatment of Claimants, etc.) Act 2004)
provided that a party to an appeal
could apply to the High Court, on the grounds that the AIT had made
an error of law, for an order requiring the AIT to reconsider its
decision on the appeal. The High Court could make such an order if it
thought that the AIT had made an error of law. At the relevant time,
all applications for reconsideration went through a “filter
procedure”, so that an application for reconsideration was
first made to an authorised immigration judge of the AIT. If the
immigration judge refused to make an order for reconsideration, the
applicant could renew the application to the High Court, which would
consider the application afresh.
23. Section
2 of the Human Rights Act 1998 provides that, in determining any
question that arises in connection with a Convention right, courts
and tribunals must take into account any case-law from this Court so
far as, in the opinion of the court or tribunal, it is relevant to
the proceedings in which that question has arisen. Section 6(1)
provides that it is unlawful for a public authority to act in a way
which is incompatible with a Convention right.
B. SO
and SO (KhaD – members and family) Afghanistan CG [2006] UKAIT 00003
- Country guideline determinations of both the former
AIT and IAT are to be treated as an authoritative finding on the
country guidance issue identified in the determination, based upon
the evidence before the members of the Tribunal or the IAT that
determined the appeal. Unless expressly superseded or replaced by a
later country guideline determination, country guideline
determinations are authoritative in any subsequent appeals so far as
that appeal relates to the country guidance issue in question and
depends upon the same or similar evidence.
- In the country guideline determination of SO and SO
(KhaD – members and family) Afghanistan CG [2006] UKAIT 00003, the AIT held that the issue of risk to persons having a
connection with the PDPA had to be considered by weighing up a number
of factors including some personal to the individual. Furthermore, it
could not be said that former membership of Khadimat-e-Atalat-e
Dawlati (“KhaD” - the secret service wing of the
Communist PDPA regime in Afghanistan until 1992) or the PDPA would
generally suffice to establish a risk of persecution or treatment
contrary to Article 3 on return unless an individual had personally
crossed or had had “concrete conflicts” with people who
were now in power. In that context, the AIT considered that past or
present personal conflicts were more important than political
conflicts. The AIT further held that in assessing whether family
members of a PDPA and/or a KhaD member would be at risk, there may be
factors reducing or removing risk such as the death of the PDPA/KhaD
member, and the amount of time that had elapsed since his death.
C. GS
(Article 15 (c) : Indiscriminate violence) Afghanistan CG
[2009] UKAIT 00044
- In
the country guideline determination of GS (Article 15 (c):
Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044,
promulgated on 15 October 2009, the then AIT held that there was not
in Afghanistan such a high level of indiscriminate violence that
substantial grounds existed for believing that a civilian would,
solely by being present there, face a real risk which threatened the
civilian’s life or person, such as to entitle that person to
the grant of humanitarian protection, pursuant to Articles 2(e) and
15(c) of Council Directive 2004/83/EC.
III. RELEVANT EUROPEAN UNION LAW
- Council
Directive 2004/83/EC of 29 April 2004 (on minimum standards for the
qualification and status of third country nationals or stateless
persons as refugees or as persons who otherwise need international
protection and the content of the protection granted: “the
Qualification Directive”) has the objective, inter alia,
of ensuring EU Member States apply common criteria for the
identification of persons genuinely in need of international
protection (recital six of the preamble).
- In
addition to regulating refugee status, it makes provision for
granting subsidiary protection status. Article 2(e) defines a person
eligible for subsidiary protection status as someone who would face a
real risk of suffering serious harm if returned to his or her country
of origin and who is unable, or, owing to such risk, unwilling to
avail himself of the protection of that country.
“Serious
harm” is defined in Article 15 as consisting of:
“a) death penalty or execution; or
b) torture or inhuman or degrading treatment
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”.
- The
Qualification Directive was transposed into domestic law by the
Refugee or Person in Need of International Protection (Qualification)
Regulations 2006.
IV. RELEVANT INFORMATION ABOUT AFGHANISTAN
- In July 2009 UNHCR issued Eligibility Guidelines for
Assessing the International Protection Needs of
Asylum-Seekers from Afghanistan (“the July 2009 UNHCR
Guidelines”) and set out the categories of Afghans considered
to be particularly at risk in Afghanistan in view of the security,
political and human rights situation in the country at that time.
- With
regard to persons associated with the former PDPA, those Guidelines
stated the following:
“The People’s Democratic Party of
Afghanistan (PDPA) was formed in 1965 by Nur Mohammad Taraki on
Marxist/Leninist ideology due to domestic discontent and the absence
of political freedoms. It believed in a one-party, heavily
secularized state, and was particularly intolerant of political
opposition from its Islamist rivals. The PDPA eventually split into
the Khalq (People) and Parcham (Flag) branches. After
the Khalq faction of the PDPA deposed the ruling party through
a coup carried out by its supporters in the military in 1978 (the
Saur Revolution), it formed a government that was violently
intolerant of political opposition. The Soviet-supported PDPA
government’s attempts at forcible reform of polity and society
resulted in a surge of support for its Islamist rivals, who attempted
to oust it with Pakistani support. In 1977, the two factions reunited
under Soviet pressure and its name was changed to Watan (Homeland)
Party. It collapsed in 1992 when, following the Peshawar Accords,
Mujaheddin troops entered Kabul and the last President of a communist
government in Afghanistan, Mohammed Najibullah (previously head of
the secret service KhAD) had to seek refuge in a UN-building
in Kabul where he stayed until he was killed by Taleban troops
entering Kabul in September 1996.
In late 2003, a congress of the People’s
Democratic Party of Afghanistan (PDPA) took place in Afghanistan,
which led to the creation of Hezb-e-Mutahid-e-Mili (National
United Party), a party registered in 2005 then comprising 600
members. Former PDPA members have also reportedly founded several
other parties. Most
recently, a new parliamentary group, the United National Front,
was inaugurated on 12 March 2007 as a broad coalition of
former and current militia leaders, commanders from the anti-Soviet
resistance, ex-Communist leaders, and various representatives of
social and ethnic groups.
Significant numbers of the former People’s
Democratic Party of Afghanistan (PDPA) – subsequently renamed
Watan (Homeland) – members and former security
officials, including the Intelligence Service (KhAD/WAD),
are working in the Government.
While many former PDPA members and officials of the
communist government, particularly those who enjoy the protection of
and have strong links to influential factions and individuals in the
current Government, are generally not at risk, some high-ranking
members of the PDPA continue to face a risk of persecution. Such risk
depends on the individual’s personal circumstances, including
family background, professional profile, political links, and whether
he or she has been associated, or perceived to be associated, with
the human rights violations of the communist regime in Afghanistan
between 1979 and 1992.
Former PDPA high-ranking members without factional
protection from Islamic political parties, tribes or persons in a
position of influence, who may be exposed to a risk of persecution,
include the following:
• high-ranking PDPA members, irrespective of
whether they belonged to the Parcham or Khalq faction
of the party may be at risk if they are known and had a public
profile. These encompass high-ranking members of Central and
Provincial PDPA Committees and their family members and secretaries
of PDPA’s Committees in public institutions; and
• former security officials of the communist
regime, including KhAD members, also continue to be at risk,
in particular from the population – e.g. families of victims of
KhaD ill-treatment – given their actual or perceived
involvement in human rights abuses during the communist regime.
Former PDPA high-ranking members, or those associated
with the commission of human rights violations during the former
Communist regime, may also be at risk of persecution by mujaheddin
leaders, and armed anti-Government groups.”
- On
17 December 2010, UNHCR issued updated Eligibility Guidelines for
Assessing the International Protection needs of Asylum-Seekers from
Afghanistan (“the December 2010 UNHCR Guidelines”). Those
Guidelines observed, inter alia, under “I. Introduction”:
“These Guidelines supersede and replace the July
2009 UNHCR Eligibility Guidelines for Assessing the International
Protection Needs of Asylum-Seekers from Afghanistan.
They are issued against a backdrop of a worsening security
situation in certain parts of Afghanistan and sustained
conflict-related human rights violations as well as contain
information on the particular profiles for which international
protection needs may arise in the current context in Afghanistan.
...
UNHCR considers that individuals with the profiles
outlined below require a particularly careful examination of possible
risks. These risk profiles, while not necessarily exhaustive, include
(i) individuals associated with, or perceived as supportive of, the
Afghan Government and the international community, including the
International Security Assistance Force (ISAF); (ii) humanitarian
workers and human rights activists; (iii) journalists and other media
professionals; (iv) civilians suspected of supporting armed
anti-Government groups; (v) members of minority religious groups and
persons perceived as contravening Shari’a law; (vi) women with
specific profiles; (vii) children with specific profiles; (viii)
victims of trafficking; (ix) lesbian, gay, bisexual, transgender and
intersex (LGBTI) individuals; (x) members of (minority) ethnic
groups; and (xi) persons at risk of becoming victims of blood feuds.
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.
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.
In light of the serious human rights violations and
transgressions of international humanitarian law during Afghanistan’s
long history of armed conflicts, exclusion considerations under
Article 1F of the 1951 Convention may arise in individual claims by
Afghan asylum-seekers. Careful consideration needs to be given in
particular to the following profiles: (i) members of the security
forces, including KHAD/WAD agents and high-ranking officials of the
communist regimes; (ii) members and commanders of armed groups and
militia forces during the communist regimes; (iii) members and
commanders of the Taliban, Hezb-e-Islami Hikmatyar and other armed
anti-Government groups; (iv) organized crime groups; (v) members of
Afghan security forces, including the NDS; and (vi) pro-Government
paramilitary groups and militias.”
- Members
of the former PDPA and their families were not included within the
potential risk profiles set out in the December 2010 UNHCR
Guidelines.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
-
The applicant complained that his removal to Afghanistan would
violate his rights under Articles 2 and 3 of the Convention. Article
2 of the Convention provides that:
“1. Everyone’s right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
- Article
3 of the Convention provides that:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
- The
Court finds that it is more appropriate to deal with the complaint
under Article 2 in the context of its examination of the related
complaint under Article 3 and will proceed on this basis (NA. v.
the United Kingdom, no. 25904/07, § 95, 17 July 2008). It
notes that the complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties’ submissions
a. The applicant’s submissions
- The
applicant contended that his expulsion to Afghanistan would expose
him to a real risk of ill-treatment due to the high and visible
profile of his father in Afghanistan as a result of his involvement
with the PDPA Government until its overthrow in 1992. Whilst not
disputing the findings of GS (set out at paragraph 26
above), he argued that the assessment of the risk to him required
consideration of the level of violence in Afghanistan as well as his
personal circumstances, having regard to the Court’s case-law
that even though a number of individual factors may not, when
considered separately, constitute a real risk, they may do when taken
cumulatively and when considered in a situation of general violence
and heightened security (NA. v. the United Kingdom, no.
25904/07, § 130, 17 July 2008). He argued that his personal
circumstances were such that he had established that there existed
special distinguishing features that could or should have enabled the
Secretary of State to foresee that he would be exposed to a very
personal risk upon return to Afghanistan (Vilvarajah and Others v.
the United Kingdom, 30 October 1991, § 112, Series A no.
215).
-
The applicant maintained that, until 1992, his father had had a
personal role in assisting the former President Najibullah. His
father had been appointed Lieutenant General within the PDPA and had
been the Head of the Military Medical Academy and Hospital in Kabul
providing medical assistance to very prominent members of the
Government of the time as well as to members of the opposition who
held positions in the current Government. The applicant further
asserted that, before 1992, his father had had a high profile,
speaking out on radio and national television against extremism and
members of the Mujaheddin who were members of the current Government.
In support of his claims, the applicant submitted photographs of his
father during that time together with a number of witness statements
from former members of the PDPA Government confirming his father’s
role within the PDPA administration prior to 1992 and stating their
belief that the applicant’s life would be at risk if he were to
be returned to Afghanistan. The applicant also submitted a witness
statement from his father which, inter alia, asserted that he
continued to be politically active and have a high profile in
Afghanistan and that the applicant would be at risk of retribution
upon return to Afghanistan, in particular from the Vice-President of
Afghanistan (see further paragraph 41 below).
- The
applicant pointed out that in the consideration of his brother SH’s
appeal in 2004, the IAA had recognised the high profile of his father
and had accepted that he had been a prominent, high-ranking member of
the PDPA who was known by armed factions and was without any existing
political party or tribal protection. The IAA had further accepted
that, following UNHCR Guidelines (see paragraphs 30-31
above), there were substantial grounds for believing that his brother
SH would face a real risk of ill-treatment contrary to Article 3 if
returned to Afghanistan as a relative of a former PDPA member. The
applicant submitted that his father’s profile had not
diminished since 2004 and that, if anything, the threat to the
applicant would be more serious now than that recognised by the IAA
in his brother’s appeal determination because at that time,
neither SH nor the IAA had known that another brother FH had been
shot and killed in Kabul in 2003. He argued that FH had been a
student and had not been involved in any political activity.
Therefore, he asserted that there could be no reason for his death
other than that he had been targeted because of his relationship with
his father. The applicant argued, in terms, that FH’s death
indicated that the risk to his family remained to the present day.
- The applicant further submitted that, prior to 1992,
his father had publicly spoken out against Mohammad Qasim Fahim who
had been implicated in war crimes in Afghanistan in the 1990s and was
now Vice-President of Afghanistan. He alleged that he would be
identified as his father’s son and targeted upon return by
members of the current Government, particularly given that his family
had been identified by the security forces in Kabul in 2002. He
argued that he would be unable to avail himself of the protection of
the Afghan authorities because they were the very authorities who
posed a personal and real risk to him.
- He
argued that both the case of SO and SO (see paragraph 25
above) and the July 2009 UNHCR Guidelines (see paragraphs 30-31)
supported his case because, as the son of a high-ranking member of
the PDPA whose family had been targeted for reprisals, he ran a very
high risk of being subjected to treatment contrary to Articles 2 and
3 upon return, particularly given the appointment of Mohammed Qasim
Fahim as Vice-President in 2009.
b. The Government’s submissions
- The
Government submitted that the applicant’s removal to
Afghanistan would not expose him to a real risk of being subjected to
treatment in breach of Article 3 of the Convention, nor a violation
of Article 2.
- The
Government pointed out that the applicant’s claim had been
fully considered and rejected by both the Secretary of State and the
then AIT. They argued that the AIT had conducted an individualised
assessment of the risk that the applicant faced by reason of his
connection with his father, having weighed up a number of factors
including some personal to the individual in accordance with the
case-law set out in SO and SO (see paragraph 25
above). The Government reiterated all of the AIT’s findings (as
set out in full at paragraphs 15-17
above).
- The
Government did not accept that any of the material submitted to the
Court by the applicant was capable of displacing the AIT’s
findings. First, they asserted that there remained no documentary
evidence that the applicant’s father had continued to be
politically active after his departure from Afghanistan in 1992 and
that there were no grounds for believing that he maintained a
political profile in Afghanistan until the present day. Indeed, the
Government pointed out that the witness statements submitted to the
Court only demonstrated his historical connections with the PDPA
prior to 1992 and failed to provide any support for the applicant and
his father’s assertions that his father had continued to
condemn members of the current Afghan Government.
- Second,
the Government argued that the applicant had not submitted any
evidence capable of disturbing the AIT’s conclusions that the
applicant himself had no individual profile in Afghanistan; that he
had not been involved in his father’s political activities; and
that he had been absent from Kabul for at least five years. The
Government therefore maintained that there was nothing to suggest
that the applicant would be at any risk of retribution for his
father’s political opinions. In that regard, the Government
pointed out that the AIT had rejected the applicant’s claim
that his brother FH had been killed in 2003 by the Mujaheddin and
there remained no formal evidence regarding the date and
circumstances of FH’s death. In particular, there was no
evidence linking FH’s alleged killing with the Mujaheddin, with
those who formed part of the present Government of Afghanistan or
with the political activities of his father. The Government therefore
considered that there was no evidence that FH had been targeted at
all, and had not simply been the victim of a random act of criminal
violence. The Government argued that the applicant’s
speculative assertions that FH must have been killed by the
Mujaheddin could not amount to “substantial grounds” that
the applicant would be at risk upon return to Afghanistan.
- Third,
although the Government argued that the above matters were reason in
themselves for the AIT to have held that the applicant had not
established substantial grounds to believe that he would be at real
risk contrary to Articles 2 and/or 3 upon return, they pointed out
that the AIT, having had the advantage of hearing the applicant’s
and his brother’s evidence, had made adverse credibility
findings against the applicant for a range of reasons; and they did
not accept that the applicant had adequately responded to any of
those credibility findings.
- Additionally,
the Government relied upon the UNHCR Guidelines of July 2009 (set out
at paragraphs 30-31 above)
which stated that the risk to former PDPA members depended upon the
applicant’s personal circumstances, including family
background, professional profile, political links and whether he or
she had been associated, or perceived to be associated, with the
human rights violations of the communist regime in Afghanistan
between 1979 and 1992. By extension, they argued that the position of
family members of former PDPA members, such as the applicant, must
equally depend on their particular circumstances and that it could
not be said that the mere fact of the relationship between the
applicant and his father would be sufficient to disclose substantial
grounds for believing that there would be a real risk of the
applicant being subjected to treatment contrary to Articles 2 or 3 in
the event of his return to Afghanistan.
- Finally,
although the applicant had not alleged the same in his application,
the Government, relying on the country guideline determination of GS
(set out above at paragraph 26), observed
that the position in Afghanistan could not be described as one of the
most extreme cases of general violence where there was a real risk of
ill-treatment simply by virtue of an individual being exposed to such
violence upon return.
The Court’s assessment
a) General principles
- The
Court reiterates that Contracting States have the right as a matter
of international law and subject to their treaty obligations,
including the Convention, to control the entry, residence and
expulsion of aliens (Üner v. the Netherlands [GC],
no. 46410/99, § 54, ECHR 2006 ....). However, expulsion by
a Contracting State may give rise to an issue under Article 3, and
hence engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that the
person concerned, if deported, faces a real risk of being subjected
to treatment contrary to Article 3. In such a case, Article 3 implies
an obligation not to deport the person in question to that country
(Saadi v. Italy [GC], no. 37201/06, § 125, 28
February 2008).
- The assessment whether there are substantial grounds
for believing that the applicant faces such a real risk inevitably
requires that the Court assess the conditions in the receiving
country against the standards of Article 3 of the Convention
(Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and
46951/99, § 67, ECHR 2005-I). These standards imply that the
ill-treatment the applicant alleges he will face if returned must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this is relative, depending on all
the circumstances of the case (Hilal v. the United Kingdom,
no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute
character of the right guaranteed, Article 3 of the Convention may
also apply where the danger emanates from persons or groups of
persons who are not public officials. However, it must be shown that
the risk is real and that the authorities of the receiving State are
not able to obviate the risk by providing appropriate protection
(H.L.R. v. France, judgment of 29 April 1997, Reports
1997-III, § 40).
- The
assessment of the existence of a real risk must necessarily be a
rigorous one (see Chahal v. the United Kingdom, judgment of 15
November 1996, Reports 1996-V, § 96; and Saadi v.
Italy, cited above, § 128). It is in principle for the
applicant to adduce evidence capable of proving that there are
substantial grounds for believing that, if the measure complained of
were to be implemented, he would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (see N. v. Finland,
no. 38885/02, § 167, 26 July 2005). The Court
acknowledges that, owing to the special situation in which asylum
seekers often find themselves, it is frequently necessary to give
them the benefit of the doubt when it comes to assessing the
credibility of their statements and the documents submitted in
support thereof. However, when information is presented which gives
strong reasons to question the veracity of an asylum seeker’s
submissions, the individual must provide a satisfactory explanation
for the alleged discrepancies (see, among other authorities, N. v.
Sweden, no. 23505/09, § 53, 20 July 2010 and Collins
and Akasiebie v. Sweden
(dec.), no. 23944/05, 8 March 2007).
- In
order to determine whether there is a real risk of ill-treatment in
this case, the Court must examine the foreseeable consequences of
sending the applicant to Afghanistan, bearing in mind the general
situation there and his personal circumstances (see Vilvarajah and
Others v. the United Kingdom, 30 October 1991, § 108 in
fine, Series A no. 215). If an applicant has not yet been
extradited or deported when the Court examines the case, the relevant
time will be that of the proceedings before the Court (see Saadi
v. Italy, cited above, § 133). A full and ex nunc
assessment is called for as the situation in a country of destination
may change over the course of time. Even though the historical
position is of interest insofar as it may shed light on the current
situation and its likely evolution, it is the present conditions
which are decisive and it is therefore necessary to take into account
information that has come to light since the final decision taken by
the domestic authorities (see Salah Sheekh v. the Netherlands,
no. 1948/04, § 136, ECHR 2007 I (extracts)).
- The Court has held that the mere possibility of
ill-treatment on account of an unsettled situation in the receiving
country does not in itself give rise to a breach of Article 3 (see
Vilvarajah and Others v. the United Kingdom, cited above,
§ 111, and Saadi v. Italy, cited above, § 131)
and that, where the sources available to it describe a general
situation, an applicant’s specific allegations in a particular
case require corroboration by other evidence (see Mamatkulov and
Askarov v. Turkey, cited above, § 73; and Saadi v. Italy,
cited above, § 131). The Court has never excluded the
possibility that a general situation of violence in a country of
destination will be of a sufficient level of intensity as to entail
that any removal to it would necessarily breach Article 3 of the
Convention. Nevertheless, the Court would adopt such an approach only
in the most extreme cases of general violence, where there was a real
risk of ill-treatment simply by virtue of an individual being exposed
to such violence on return (see NA. v. the United Kingdom, no.
25904/07, § 115, 17 July 2008).
b) Application to the facts of the case
-
In considering whether the applicant has established that he would be
at real risk of ill-treatment in Afghanistan, the Court observes, as
a preliminary matter, that the applicant has not claimed that the
levels of violence in Afghanistan are such that any removal there
would necessarily breach Article 3 of the Convention. In that regard,
the Court notes that the applicant did not dispute the findings of
the AIT’s country guideline determination GS (set out at
paragraph 26 above) that there was not in
Afghanistan such a high level of indiscriminate violence that
substantial grounds existed for believing that a civilian would,
solely by being present there, face a real risk which threatened the
civilian’s life or person. The Court further observes that the
applicant did not submit any evidence to the Court regarding the
general security situation or levels of violence in Afghanistan. In
the circumstances, the Court considers that there are no indications
that the general situation of violence in Afghanistan, and in
particular Kabul to where the applicant would be returned, is at
present of sufficient intensity to create a real risk of
ill-treatment simply by virtue of his being exposed to such violence
on return.
- In
the present case, therefore, the Court must establish whether the
applicant’s personal situation and circumstances are such that
his return to Afghanistan would contravene Article 3 of the
Convention.
- The
applicant alleged that he would be at risk of ill-treatment in
Afghanistan due to his father’s involvement with the PDPA
Government until its overthrow in 1992 and his father’s claimed
continued high profile in Afghanistan. The Court notes that the
applicant has never claimed to have had any personal political
involvement in Afghanistan, nor has he claimed that he has an
individual profile there unconnected to his relationship with his
father. Furthermore, the applicant has not claimed that he has ever
had any role in, or knowledge of, his father’s political
activities. The AIT, when assessing his claim in 2009, acknowledged
that the applicant’s father had been involved with the PDPA
Government prior to 1992 and that his brother SH’s appeal had
been successful in 2004 but nevertheless found that there were
differences between the claims of the two brothers, including the
fact that, unlike his brother, the applicant had never been involved
in any political activity in Afghanistan. In addition, the AIT did
not accept that the applicant’s father had continued to be
politically active or to have had a high profile in Afghanistan,
because the only evidence of any political activity related to events
prior to 1992. Furthermore, the AIT did not accept that the Afghan
authorities or warlords would have any adverse interest in the
applicant, even if his father continued to be politically active,
given his lack of political profile and education; his age on leaving
Afghanistan; the fact that he had only been a small child when his
father had been politically active; and later political developments
in Afghanistan. The AIT also made adverse credibility findings
against the applicant and did not accept that his brother FH had been
killed in Afghanistan in 2003 by the Mujaheddin.
- The
Court notes that the Secretary of State and the AIT conducted a
thorough examination of the applicant’s case, which entailed
the applicant being heard on at least two occasions both at his
asylum interview and before an Immigration Judge at the AIT. He was
legally represented both before the AIT and in his applications for
reconsideration of the appeal determination. The national authorities
had the benefit of seeing, hearing and questioning both the applicant
and his brother, SH, in person and of assessing directly the
information and documents submitted by him, before deciding the case.
The Court finds no reason to conclude that their decisions were
inadequate; that their assessment was insufficiently supported by
relevant materials including the country guideline determination of
SO and SO (see paragraphs 24-25
above); or that the reasons given were insufficient.
- Moreover,
the Court considers that there is no new evidence before it which
would indicate that the domestic authorities were wrong in their
conclusion that there were no substantial grounds for finding that
the applicant would face a real risk of being persecuted upon
return to Afghanistan. In particular, in its assessment of the risk
to the applicant, the Court takes heed of the following matters.
- First,
the Court accepts that the applicant’s father was a Lieutenant
General within the PDPA who had been the Head of the Military Medical
Academy and Hospital in Kabul until 1992. In coming to that
conclusion, the Court has regard to the findings of the Adjudicator
in the applicant’s brother, SH’s, asylum appeal in 2004
(as set out at paragraph 9 above); and the
photographs of the applicant’s father during that period
together with the witness statements of former members of the PDPA
Government confirming his father’s role prior to 1992 (see
paragraph 39 above).
- Nevertheless,
the Court considers that the applicant has failed to adduce any
independent evidence to support his claim that his father has
remained politically active to the present day and/or has continued
to have a profile in Afghanistan after his departure from the country
in 1992. Indeed, the Court notes that the only evidence regarding the
same is the unsupported assertions in the applicant’s and his
father’s witness statements. Even having regard to the special
situation in which asylum seekers often find themselves, and the need
to give them the benefit of the doubt when it comes to assessing
their credibility, the Court is not convinced that, in the present
case, a bare assertion can be considered to be sufficient to
establish that his father is still politically active or has a public
profile in Afghanistan such as to give rise to any risk upon return
to the applicant. In that regard, the Court considers it to be
relevant that none of the witness statements submitted from any of
the members of the former PDPA Government members (see paragraph 39
above) indicate or make any reference to any continuing activism or
political role on the part of the applicant’s father post 1992.
Furthermore, if the applicant’s father had continued to make
radio, television or any other public statements condemning members
of the current Government, the Court considers that the applicant
would have been able to refer to the same or submit some form of
evidence regarding the same to support those assertions. The fact
that no such material is available suggests to the Court that, even
if his father may have remained politically active in some way whilst
living in the Russian Federation, such activities are not publicised
and are therefore unlikely to be known in Afghanistan or elsewhere.
Furthermore, his father’s apparently voluntary return to
Afghanistan, on one trip since 1992 (see paragraph 14
above), without encountering any difficulties there, corroborates the
view that his father was of no adverse interest in Afghanistan.
- In
all of the circumstances, the Court is not convinced that the
applicant’s father has an ongoing public profile in Afghanistan
or has been engaged in any political activity since 1992 to the
extent that it would attract the adverse interest of any person or
faction in Afghanistan in the applicant. Further, in the absence of
any evidence regarding the same, the Court is not persuaded by the
applicant’s claim that members of the current Government would
either be able to identify him as his father’s son upon his
return, or would be motivated to target him, given both the passage
of time since his father was involved in politics and the applicant’s
lack of political activity.
- Second,
the Court notes that the AIT did not accept that the applicant’s
brother FH had been killed by the Mujaheddin in 2003 (see paragraph
16 above). Indeed, at his appeal hearing before
the AIT, the applicant himself had acknowledged that he was not able
to state who had killed FH and had only asserted that he thought it
had been the Mujaheddin (see paragraph 16
above). In his submissions before the Court, the applicant argued
that, given FH’s lack of political profile, there could be no
reason for his having been killed other than due to his relationship
with their father (see paragraph 40 above). The
Court notes that there is no evidence before it regarding FH’s
death, how he died or the circumstances of his death which would
indicate that he was killed by any particular person in Afghanistan
or that his death would have any significance for the assessment of
the risk to the applicant upon return to Afghanistan. The Court
therefore considers that the Government were entitled to take the
view that FH’s death in 2003 could not amount to substantial
grounds for believing that the applicant would be at risk upon
return.
- Third, the Court recalls that, if an applicant has not
yet been removed when the Court examines the case, the relevant time
for the examination of the risk to the applicant will be that of the
proceedings before the Court. Furthermore, even though the historical
position is of interest, it is the present conditions in Afghanistan
which are decisive. It is therefore necessary to take into account
information which has come to light since the final decision was
taken by the domestic authorities. In that regard, the Court
recognises that the July 2009 UNHCR Guidelines (see paragraphs 30-31
above), whilst acknowledging that many former PDPA members would not
generally be at risk in Afghanistan, also indicated that, depending
on the individual’s personal circumstances, certain
high-ranking PDPA members and their family members may be at risk of
persecution in Afghanistan if they were known, had a public profile
and were without any factional support in Afghanistan. Indeed, it was
on that basis that the applicant’s brother, SH, was granted
refugee status in the United Kingdom in 2004 after the IAA had found
that he had fallen “fairly and squarely” within the
protection category set out by the UNHCR Guidelines in place at that
time. The Court also takes heed of the AIT country guideline
determination of SO and SO from 2006 (see paragraphs 24-25
above) which found similarly, in light of the UNHCR Guidelines
and other evidence, that the risk to persons with a connection with
the PDPA had to be considered by weighing up a number of factors
including past or present personal conflicts.
- The
Court finds it highly significant that the December 2010 UNHCR
Guidelines, which superseded and replaced the July 2009 UNHCR
Guidelines and post-dated SO and SO, do not cite former PDPA
members and their family amongst the extensive list of potential risk
profiles of asylum seekers from Afghanistan. The Court acknowledges
that the UNHCR Guidelines do not necessarily provide an exhaustive
list of risk categories. Nevertheless, the Court considers that the
omission of PDPA members and, more critically, UNHCR’s own
change in their position between July 2009 and December 2010, is
significant. It indicates that former PDPA members are no longer
considered to be at risk in Afghanistan. Indeed, the Court considers
that the lack of other background evidence indicating that PDPA
members continue to be at risk upon return to Afghanistan to the
present day further corroborates that position. Having regard to all
of the above, the Court is not persuaded that the applicant, who was
never a PDPA member himself but merely a family member of a former
PDPA member who had left Afghanistan 19 years ago, has demonstrated
that he would be at risk upon return.
- Following
an overall examination of the applicant’s case, the Court
concludes that the applicant has failed to adduce evidence capable of
demonstrating that there are substantial grounds for believing that
he would be exposed to a real risk of being subjected to treatment
contrary to Article 3 if removed to Afghanistan having
particular regard to, inter alia, the lack of any evidence
that the applicant’s father still has any profile in
Afghanistan; the length of time that has elapsed since his father, in
any event, had left Afghanistan; the applicant’s lack of
individual profile in Afghanistan; and, critically, the absence of
any recent evidence to indicate that family members of PDPA members
would be at risk in Afghanistan in the present circumstances
prevailing there.
- Accordingly,
the applicant’s removal to Afghanistan would not give rise to a
violation of Article 3 of the Convention.
II. RULE 39 OF THE RULES OF COURT
- The
Court recalls that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
- It
considers that the indication made to the Government under Rule 39
of the Rules of Court (see above § 3) must continue in force
until the present judgment becomes final or until the Panel of the
Grand Chamber of the Court accepts any request by one or both of the
parties to refer the case to the Grand Chamber under Article 43 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there would be no violation of
Article 3 of the Convention in the event of the applicant’s
removal to Afghanistan; and
- Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable
in the interests of the proper conduct of the proceedings not to
remove the applicant until such time as the present judgment becomes
final or further order.
Done in English, and notified in writing on 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
