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FOURTH
SECTION
DECISION
AS
TO THE ADMISSIBILITY OF
Application no.
12096/10
by S.S.
against the United
Kingdom
The
European Court of Human Rights (Fourth Section),
sitting on 24 January 2012 as a Chamber
composed of:
Lech
Garlicki, President,
Nicolas
Bratza,
David
Thór Björgvinsson,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Vincent
A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
regard to the above application lodged on 1 March 2010,
Having
regard to the interim measure indicated to the respondent Government
under Rule 39 of the Rules of Court,
Having
regard to the decision to grant priority to the above application
under Rule 41 of the Rules of Court,
Having
regard to the decision to grant anonymity to the applicant under Rule
47 § 3 of the Rules of Court,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr S.S., is an Afghan national who was born in 1983 and
lives in the United Kingdom. He was represented before the Court by
Ms U. Sood, counsel. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr M. Kuzmicki of
the Foreign and Commonwealth Office.
A. The circumstances of the case
- The
facts of the case may be summarised as follows.
1. The basis of the applicant’s asylum claim
- The
applicant arrived in the United Kingdom on 25 July 2002 and claimed
asylum the following day on the basis of his fear of General Dostum
(a warlord of Uzbek ethnicity also referred to as “General
Dostam” who currently holds the position of the Chief of Staff
to the Commander in Chief of the Afghan National Army, President
Hamid Karzai), his commanders and their sons. The applicant claimed
that his father had worked as a local police commissioner in Saripool
province in northern Afghanistan and as an adviser to General Malik
(another warlord of Uzbek ethnicity who is considered to be General
Dostum’s rival). The applicant claimed that in 1997, with his
father’s assistance, General Malik had helped the Taliban
attack General Dostum thereby killing many of his commanders and
removing General Dostum from his position as the dominant power
holder in the central area of northern Afghanistan.
- The
applicant also claimed that, in April 1998, he had been arrested by
the Taliban and then released after the payment of a bribe.
- Most
significantly, the applicant claimed that, after he had been
re appointed as military commander of most of the northern
provinces of Afghanistan in January 2002, General Dostum had arrested
and ill-treated the applicant and his father. The applicant had
managed to escape but General Dostum had killed his father. The
applicant had fled Afghanistan in fear not only of General Dostum but
also his troops and the sons of the commanders who had previously
been killed in 1997 by General Malik. He claimed that, while General
Malik had security in Afghanistan as a member of the new Afghan
Government, in contrast he would have no similar protection.
2. Domestic asylum proceedings
- On
30 August 2002, the Secretary of State refused the applicant’s
asylum application. The applicant appealed against the refusal of his
asylum claim claiming that his return to Afghanistan would violate,
inter alia, Articles 2 and 3 of the Convention.
- In
a determination of the 10 January 2003, his appeal was allowed by an
Adjudicator at the then Immigration Appellate Authority (“IAA”)
who found that the applicant’s account of events had been
consistent and that the applicant was a credible witness. The
Adjudicator accepted that his father had been a high-ranking member
of the military and that the applicant and his father had both faced
difficulties and suffered ill-treatment in Afghanistan as a result of
his father’s political opinion and activities for General
Malik. The Adjudicator found that, given the objective country
information and the fact that the applicant’s father had been a
conspicuous high-ranking officer, the applicant would be at risk in
Sheberghan (the capital of Jowzan province in northern Afghanistan
and the most important Uzbek city in Afghanistan) from General Dostum
and that the Afghan authorities would not be able to offer him
adequate protection there. The Adjudicator also stated that, given
the general insecurity and lawlessness of local warlords, he was
minded to believe that there was, albeit marginally, a likelihood
that the applicant would also be at risk in Kabul. Finally, he found
that, even if no such risk arose in Kabul, given the applicant’s
age and the general circumstances there it would be unduly harsh to
expect him to relocate there upon return to Afghanistan.
- The
Secretary of State subsequently sought permission to appeal to the
then Immigration Appeal Tribunal (the “IAT”).
- On
5 December 2003, the IAT allowed the Secretary of State’s
appeal and found that the Adjudicator’s findings on internal
flight had been unsustainable. In coming to that conclusion, the IAT
had before it a report prepared by Dr Antonio Giustozzi, an expert on
Afghanistan, which had predicated the applicant’s safety in
Kabul on the basis of his ability to maintain a low profile there. Dr
Giustozzi had considered that, while it was not possible to establish
with certainty that the applicant would be targeted by his father’s
enemies, the applicant would have to take that possibility seriously.
Dr Giustozzi had concluded that it was unlikely that the applicant
would experience a serious threat from General Dostum or his
political party but had considered that “some local commanders
might [have an interest in him], depending on the past actions of
[the applicant’s] father and especially if it was not possible
to target the father directly, because he is already dead or because
he has sought refuge elsewhere.”
- After
examining Dr Giustozzi’s report, the IAT found that “as
the son of a person whose father was involved with General Malik, the
risk today is very low unless General Dostum was unable to exact
revenge on his father.” Due to the fact that the applicant’s
father had already been killed by General Dostum, the IAT considered
that revenge had been exacted, and the applicant would not therefore
be at risk.
- Furthermore,
noting that General Malik himself was resident in Kabul, the IAT
considered that the applicant could also safely internally relocate
to Kabul where single young men would be relatively safe. The IAT
found that the possibility of an attack upon the applicant by General
Dostum or his followers in Kabul was “remote” and that
anyone in Kabul on General Dostum’s behalf would not be
interested in pursuing his former enemies because they were defending
his office and leading members of his political party in the city.
- Finally,
the IAT did not accept that there was any evidence that General
Dostum or his commanders would be interested in pursuing the family
members of his former enemies.
- On
16 January 2004, the applicant was refused permission to appeal to
the Court of Appeal.
- On
28 February 2006, the applicant was detained at Dungavel Immigration
Removal Centre pending his removal from the United Kingdom. Removal
directions to Afghanistan were cancelled for unknown reasons. On 30
May 2006, the applicant was admitted to hospital before being
released to his home address.
3. The applicant’s further representations
- On 8 July 2009, the applicant submitted further
representations to the Secretary of State based upon a report dated 5
June 2009 by Dr Peter Marsden MBE, an expert on Afghanistan. That
report summarised the background to and the security situation
prevailing in Afghanistan at that time. In respect of the risk from
General Dostum, the report stated, inter alia, that:
“...the primary risk to S.S arises from the fact
that his father may have facilitated the successful entry of General
Malik into Mazar-e-Sharif through the provision of strategic,
logistics and technical support, drawing on his experience gained
while working within the Defence Ministry of the former People’s
Democratic Party of Afghanistan Government of 1979-1992. General
Dostam may, therefore, have good reason to continue to feel aggrieved
over the actions of S.S.’s father and may, subject to
considerations of his own power and influence within the current
Afghan government, have an interest in targeting S.S.,
notwithstanding that S.S.’s father may already have been killed
by his militia. It is important to note, in this regard, that General
Dostam has a reputation for serious human rights abuses and for
particular ruthlessness. He would, therefore, have no hesitation in
killing S.S. if other considerations did not dictate otherwise. It
should be noted in this regard that, although President Karzai has
maintained a certain distance from General Dostam because of his
human rights record, Dostam has sought respectability and this has
been rewarded through various defence-related posts of a largely
honorary nature. It is therefore difficult to assess whether General
Dostam would risk undermining this by actively seeking S.S. It should
nonetheless be noted that his decision to imprison hundreds of
Taliban prisoners, in the autumn of 2001, in conditions which were
likely to lead to their deaths and to do so under the watch of US
forces showed little regard for his international reputation. It
would also not be difficult for General Dostam to arrange for S.S. to
be killed without this being traced back to him.
On the other hand, some of his commanders may be
influenced solely by their desire to avenge [General] Malik’s
treachery and, while [General] Malik may be too well protected to
represent an easy target, may see an opportunity through S.S.’s
inability to protect himself, to act out their revenge. It should be
stressed that it would be difficult for S.S. to escape detection if
he was being actively targeted.”
- The
report commented that the applicant would be entirely vulnerable in
Kabul if General Dostum or his supporters were to actively target
him. In addition, the report commented upon the IAT’s findings
of 5 December 2003 and did not agree that Dr Giustozzi’s
report had necessarily indicated that the risk to S.S. was a low one.
The report stated:
“...it should be noted that there has been, for
many decades, a pronounced labelling process in Afghanistan so that
people have been identified with members of their families who have
taken particular political positions or brought harm to others by
virtue of the power they wielded. The individual is thus identified
by association with his relatives and it is common practice for
revenge attacks to be undertaken against male relatives if the
original perpetrator of the action is no longer alive or to be found.
It is also important to note that the desire to take revenge can pass
through the generations, particularly if the original action which
led to such a desire was especially serious. Given that the
technical, logistics and strategic support provided by S.S.’s
father may have been of significant benefit in enabling General Malik
to capture and subsequently facilitate the entry of the Taliban into
Mazar-e-Sharif, those who may seek to avenge his role may regard it
as sufficiently serious to take revenge against S.S., as his son. I
do not regard paragraph 7 of Dr Giustozzi’s report as
necessarily indicating that the risk to S.S. of being actively
targeted by some local commanders is a low one. As he notes, the
wishes of such commanders to actively target S.S. is dependent on the
past actions of his father. As these actions were of a potentially
very serious nature, the risk to S.S. may be a high one.”
- The report also set out that, in Dr Marsden’s
view, S.S. may be at risk from the Taliban on account of the
thousands of Taliban fighters who had died in Mazar-e-Sharif after
General Malik had withdrawn his allegiance from the Taliban. However,
Dr Marsden clarified that the possibility of a revenge attack upon
the applicant from the Taliban had to be set against the fact that
the Taliban had not killed him when he claimed that they had arrested
him and imprisoned him during their period of control of
Mazar-e-Sharif between 1998 and 2001.
- On
20 January 2010, the Secretary of State refused the applicant’s
representations as not amounting to a fresh asylum claim because some
of the points he had raised had already been considered in his
earlier claim and the remaining points would not have created a
realistic prospect of success before an immigration judge. It was not
accepted that the applicant had shown that the Taliban would have the
motivation, means or opportunity to target him in Kabul, an area
outside of their control, particularly in light of the fact that they
had not harmed him when they had detained him in 1998.
- It
was further not accepted that General Dostum would still be
interested in actively targeting the applicant due to, inter alia,
the manner of his escape from detention in 2002; the passage of seven
years since his arrest by General Dostum; the fact that General
Dostum would now have other priorities; and the fact that General
Dostum had already gained revenge by killing the applicant’s
father. Furthermore, it was noted that the IAT had, six years
earlier, assessed the risk to the applicant as low and it was
considered that the risk to him six years later would be even lower.
- In
addition, relying on the reasoning of the IAT determination, the
Secretary of State did not accept that, even if General Dostum was
interested in the applicant, he would be able to harm him in Kabul.
In particular, as General Malik reportedly lived in Kabul and was
able to protect himself there, there was no reason to suggest that
the applicant would not be able to do the same. It was therefore
considered that the applicant had failed to show that his
circumstances were more likely to cause him to be harmed than any
other ordinary citizen.
- Finally,
it was not accepted that the applicant would be destitute in Kabul as
he was no more vulnerable than any other citizen and had shown great
resourcefulness in the United Kingdom where he had picked up
transferable skills which would be of benefit to him upon return to
Afghanistan.
4. Proceedings before the High Court
- On
1 February 2010, the High Court refused to grant the applicant
permission to apply for judicial review, stating that it was not
arguable that the Secretary of State’s decision not to treat
the applicant’s further submissions as a fresh claim was
unlawful or irrational, or that those submissions had not been given
anxious scrutiny.
- On
3 February 2010, the United Kingdom Border Agency’s Case
Resolution Directorate, set up to consider unresolved asylum cases,
gave further consideration to the applicant’s case and decided
that it would not be appropriate for the applicant to be granted
leave to remain in the United Kingdom bearing in mind, inter alia,
his age (because it was not unreasonable to expect the applicant
at 25 years of age to adapt to life back in Afghanistan); the fact
that, even though he had been in the United Kingdom for seven years,
he had been without valid leave to remain throughout that period; his
lack of strong ties or family in the United Kingdom; his past failure
to maintain contact with immigration authorities; and the lack of any
compassionate or compelling circumstances in his case.
- On
22 February 2010, the Secretary of State set removal directions to
Afghanistan for the applicant scheduled to take place on 2 March
2010. Those removal directions were deferred when, on 1 March 2010,
the High Court granted the applicant an injunction to prevent his
removal from the United Kingdom, pending the hearing of his renewed
application for judicial review at the High Court.
- On
18 March 2010, the High Court refused permission to apply for
judicial review further to the renewed permission hearing, thus
discharging the injunction. Beatson J noted that there was no new
evidence other than Dr Marsden’s report which was of a
qualified nature and demonstrated only the conditional nature of the
risk to which the applicant would be subject in Afghanistan. In that
regard, he stated:
“In particular, it was only a risk if General
Dostum or his senior supporters decided to target the [applicant] in
Kabul. [The applicant’s counsel] relied on the passage of time
since the [IAT]’s decision, but it is significant that there is
nothing in Dr Marsden’s report to suggest that what was
said in the [IAT]’s decision about the risk being low, unless
the General had been unable to exact revenge on the father, was
changed. What Dr Marsden states is that he does not accept Dr
Giustozzi’s report as necessarily indicating that the risk of
actively being targeted by local commanders is a low one, and the
risk of being targeted may be a high one. These are examples of the
qualified nature of his report.
Given those qualifications, and the limited extent to
which the recent report departs from the earlier expert report
submitted on behalf of the claimant, I do not consider that the
Secretary of State’s decision that there was no realistic
prospect of success before the Tribunal...was Wednesbury
unreasonable or otherwise flawed on public law grounds.”
- On
29 March 2010, the applicant lodged an application before the Court
and requested an interim measure under Rule 39 of the Rules of Court
to stop his removal to Afghanistan the following day.
- On
30 March 2010, the Acting President of the Section to which the
application was allocated decided to apply Rule 39 of the Rules of
Court and to indicate to the Government that the applicant should not
be expelled until further notice.
5. Proceedings before the Court of Appeal
- It
appears that, on 30 March 2010, the day after the applicant lodged
his application before the Court, he applied to the Court of Appeal
for an injunction to prevent his removal and permission to appeal
against the High Court’s refusal to grant permission to apply
for judicial review. On 30 March 2010, the Court of Appeal
refused his application for an urgent injunction to stop his removal.
- In
support of his application, the applicant’s representatives had
obtained a supplementary expert report from Dr Marsden dated 12 April
2010. Dr Marsden set out examples of human rights abuses committed by
General Dostum and concluded that, if he sought to avenge the actions
of an individual who had acted against his interests, he would have
no hesitation in killing him or members of his family.
- The
report further set out the power struggle between General Dostum and
General Malik and the significance of General Malik’s actions
in removing General Dostum from his position of power in 1997. The
report went on to state:
“Whilst there is no objective documentation to
establish whether S.S.’s father was instrumental in [General]
Malik’s successful entry into Mazar-e-Sharif in May 1997, any
such involvement, if it was significant to the final outcome would,
in my view, be sufficient to justify a very considerable desire on
[General] Dostum’s part for revenge. Given this, I would regard
it as a reasonable possibility that [General] Dostum would seek to
take revenge against S.S., even though revenge has already been
exacted against the father.
...
...it should be noted that S.S. has provided evidence of
a direct link, by virtue of his position as the son of his father, to
a serious grievance which [General] Dostum will inevitably hold
against [General] Malik. While it is never possible to provide
evidence that the potential perpetrator of targeted violence will opt
to give expression to a grievance that he hold, there is a reasonable
probability in this case, based on the severity of the original
grievance that, subject to S.S.’s father having played a
significant role in facilitating the entry of [General] Malik into
Mazar-e-Sharif in May 1997, [General] Dostum would have an interest
in targeting S.S., who is clearly identified with a specific
grievance, albeit indirectly through his father.
...it is not my experience, in monitoring developments
in Afghanistan, that the passage of time will necessarily lessen the
desire to exact vengeance.”
- The
report also considered that, in Dr Marsden’s view, the
applicant would be particularly exposed to targeted violence from the
Taliban if, as was likely, he was unable to afford accommodation in
Kabul. It further stated that the Taliban may have an additional
interest in the applicant given his association with General Malik.
- On
30 July 2010, the Court of Appeal dismissed the applicant’s
application for permission to appeal on the papers, taking the view
that the supplementary expert report did not undermine Beatson J’s
decision. Hallett LJ stated that:
“The issue for me is whether Beatson J, in the
light of the information then (and arguably now) available was wrong
to refuse permission to review judicially the SSHD [Secretary of
State for the Home Department]’s decision to certify.
Unfortunately, to my mind, Dr Marsden’s latest
report does not truly seem to be providing new material, post dating
or undermining Beatson J’s decision. Rather this proposed
appeal is an attempt to reargue the material available before Beatson
J in a different form.”
- On 18 January 2011, the Court of Appeal dismissed his
renewed application for permission to appeal further to an oral
hearing. Tomlinson LJ, with whom both Elias LJ and Ward LJ agreed,
stated that he had given both Dr Marsden’s first and
supplementary reports anxious scrutiny but did not consider that the
supplementary report was any different in substance to his first
report. He stated that:
“It is true that later in the report...Dr Marsden
uses the expression “reasonable probability” rather than
“reasonable possibility”, but, looking at the substance
of the matter, Dr Marsden is in my view doing no more than to repeat
in different language the assessment of the risk that he had
proffered in his first report. He relies upon no new developments in
Afghanistan from which it is to be inferred that the enthusiasm of
General Dostum to exact vengeance upon the applicant for the
activities of his father is likely to have increased over time,
rather than, as would perhaps be expected, to have waned as other
priorities and imperatives have emerged.
...
In my judgment Dr Marsden’s second report contains
no material which could properly lead this court to reach a
conclusion different from that reached by Beatson J.”
B. Relevant domestic law
1. Asylum and human rights claims
- Section
82(1) of the Nationality, Immigration and Asylum Act 2002, provides a
right of appeal against an immigration decision made by the Secretary
of State for the Home Department.
- Appeals
in asylum, immigration and nationality matters were, until
4 April 2005, heard by Adjudicators at the IAA. Section 101
of the Nationality, Immigration and Asylum Act 2002 provided that,
with the permission of the IAT,
a party to an appeal could
apply to the IAT
against an Adjudicator’s determination on a point of law.
Section 103 of the Nationality, Immigration and Asylum Act 2002
provided that where the IAT had determined an appeal under section
101, a party to the appeal could bring a further appeal on a point of
law to the Court
of Appeal.
36. 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.
2. Country
guidance determinations
- Country
guidance determinations of both the former IAT and Asylum and
Immigration Tribunal (“AIT”) 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 IAT
or AIT that determined the appeal. Unless expressly superseded or
replaced by a later country guidance determination, country guidance
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 guidance determination of PM and Others (Kabul –
Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089, the AIT held,
inter alia, that, subject to an individual’s personal
circumstances, it was unlikely to be unduly harsh (or unreasonable)
to expect them to relocate to Kabul if they had established a real
risk of serious harm in (and restricted to) areas outside Kabul.
- In the country guidance determination of RQ (Afghan
National Army – Hizb-i-Islami – risk) Afghanistan CG
[2008] UKAIT 00013, the AIT held, amongst other matters, that:
“Where the risk to a particular appellant is
confined to his home area, internal relocation to Kabul is in general
available. It would not be unduly harsh to expect an appellant with
no individual risk factors outside his home area to live in Kabul and
assist in the rebuilding of his country.
If an appellant establishes a wider risk, extending
beyond the home area, internal relocation is not necessarily
available and sufficiency of protection will depend on his individual
circumstances and characteristics. In particular
(a) internal relocation outside Kabul is unlikely to
provide sufficiency of protection as the areas outside Kabul remain
under the control of local warlords, and the population is suspicious
of strangers; and
(b) the safety of internal relocation to Kabul is a
question of fact based on the particular history of an individual
appellant and of the warlord or faction known to be seeking to harm
him.”
- In
the country guidance 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 threatens 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.
3. Fresh asylum and human rights claims
- Section
1(4) and 3(2) of the Immigration Act 1971 provide for the making of
Immigration Rules by the Secretary of State. Paragraph 353 of the
Immigration Rules provides as follows:
“When a human rights or asylum claim has been
refused and any appeal relating to that claim is no longer pending,
the decision maker will consider any further submissions and, if
rejected, will then determine whether they amount to a fresh claim.
The submissions will amount to a fresh claim if they are
significantly different from the material that has previously been
considered. The submissions will only be significantly different if
the content:
(i) had not already been considered; and
(ii) taken together with the previously considered
material, created a realistic prospect of success, notwithstanding
its rejection.”
- As
regards the scrutiny of fresh asylum claims and the power of the
courts to review such scrutiny, the Court of Appeal in WM (DRC) v
SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of
the Secretary of State as to whether a fresh claim exists must
address the following matters. First, has the Secretary of State
asked himself the correct question? The question is not whether the
Secretary of State himself thinks that the new claim is a good one or
should succeed, but whether there is a realistic prospect of an
adjudicator, applying the rule of anxious scrutiny, thinking that the
applicant will be exposed to a real risk of persecution on return ...
The Secretary of State of course can, and no doubt logically should,
treat his own view of the merits as a starting-point for that
enquiry; but it is only a starting point in the consideration of a
question that is distinctly different from the exercise of the
Secretary of State making up his own mind. Second, in addressing that
question, both in respect of the evaluation of the facts and in
respect of the legal conclusions to be drawn from those facts, has
the Secretary of State satisfied the requirement of anxious scrutiny?
If the court cannot be satisfied that the answer to both of those
questions is in the affirmative it will have to grant an application
for review of the Secretary of State’s decision.”
- Thus,
an applicant making fresh representations must establish that they
have a realistic prospect of success to establish a “fresh
claim” which, even if then refused by the Home Office, will
nonetheless generate a fresh right of appeal to be considered on the
merits.
C. Relevant Information about Afghanistan
- On 17 December 2010, UNHCR issued the most recent
Eligibility Guidelines for Assessing the International Protection
needs of Asylum-Seekers from Afghanistan (“the December 2010
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.
- Those
Guidelines observed:
“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.
...
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.”
- The December 2010 Guidelines further stated:
“The well-established practice of blood feuds is
rooted in traditional Afghan culture. Blood feuds are conflicts
between opposing families, tribes and armed factions, and are often
initiated in reaction to perceived violations to the honour of women,
property rights, and land or water issues. According to the practice,
individuals associated with the family or tribe of the individual
seen as the wrongdoer are targeted by the victim’s tribe or
family members. Revenge is sought through killing, physically
injuring or publicly shaming the perpetrator or individuals related
by family or tribe.
Blood feuds can be long-running conflicts, lasting for
generations, with a cycle of retaliatory violence between parties.
Solving a dispute through a formal justice mechanism does not
normally put an end to a blood feud. Particularly among Pashtuns,
blood feuds can be settled through a formal decision of a jirga –
generally an all-male community-based dispute resolution mechanism. A
peaceful compromise, such as a bad dadab marriage, may
sometimes prevent a dispute from spiralling into a blood feud.
In light of the foregoing, UNHCR considers that persons
involved in, or targeted because of, a blood feud may, depending on
the circumstances of the individual case, be at risk on account of
membership of a particular social group. Claims by persons with the
aforementioned profiles may, however, give rise to the need to
examine possible exclusion from refugee status.”
COMPLAINTS
- The
applicant complained that his return to Afghanistan, where he faced a
real risk of persecution and destitution would place the United
Kingdom in breach of its obligations under Articles 2 and 3 of the
Convention.
- In
addition, he complained that his attempted removal to Afghanistan by
the Government of the United Kingdom prior to his renewed application
for judicial review before the High Court breached Articles 6 and 8
of the Convention.
THE LAW
- The
relevant Articles of the Convention are as follows. Article 2, where
relevant, provides:
“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...”
Article 3 provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 6, where
relevant, provides:
“1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law...”
Article 8 provides:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms
of others.”
A. Articles 2 and 3 of the Convention
- The
Court considers 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).
1. The parties’ submissions
a. The Government’s submissions
- The
Government did not accept that there were substantial grounds for
believing that the applicant would be at real risk of treatment
contrary to Article 3 or a violation of Article 2 upon return to
Afghanistan.
- First,
in respect of any risk to the applicant as a result of his father’s
association with General Malik in Afghanistan until his death in
2002, the Government noted that the applicant had based that alleged
risk upon Dr Marsden’s report dated 5 June 2009 which had
raised nothing more than speculation and the mere possibility of such
a risk arising. They pointed out that Dr Marsden had suggested that
the primary risk to the applicant arose from “the fact that his
father may have facilitated the successful entry of General Malik
into Mazar-e-Sharif through the provision of strategic, logistics and
technical support” but that there was no evidence that the
applicant’s father had ever provided such support.
- The
Government argued that, even if General Dostum continued to feel
aggrieved over his father’s actions fourteen years later, the
suggestion that he would have any interest in targeting the applicant
was entirely unsupported. Dr Marsden had himself recognised that
General Dostum’s willingness to take such action would only
manifest itself if other considerations did not dictate otherwise and
had acknowledged that General Dostum sought respectability in
Afghanistan and would risk undermining his position by actively
seeking out the applicant. They therefore argued that there were no
substantial grounds to suggest that General Dostum would seek the
applicant out and, in so doing, risk his international reputation.
- Additionally,
the Government submitted that Dr Marsden’s assessment of both
the existence and the extent of any risk faced by the applicant was
not supported by objective sources such as the UNHCR Eligibility
Guidelines for Assessing the International Protection Needs of
Asylum-Seekers from Afghanistan.
- The
Government therefore argued that no substantial grounds had been
disclosed for believing that there was a real risk to the applicant
by reason of his father’s links with General Malik. Any
residual risk was considered to be further diminished by the fact
that, inter alia, even when the applicant had been held by
General Dostum’s supporters in 2002, he had been able to escape
through a window; that revenge had already been exacted upon the
applicant’s father; and by the substantial passage of time
since all of those events.
- Second,
the Government argued that there were no grounds for believing that
the Taliban would “target” the applicant upon return
given that the Taliban had not killed him when they had arrested and
imprisoned him in 1998 when they had been in control of
Mazar-e-Sharif and when the events of 1997 had been far more
immediate than they would be now. The Government argued that there
was no reason to believe that the Taliban would go to the lengths of
seeking to capture the applicant in Kabul, an area over which they
had no control, and considered such a prospect was fanciful.
- Third,
the Government did not accept that the applicant could be considered
to be vulnerable by reason of the fact that he was 27 years of age.
They noted that the AIT had consistently found in its country
guidance cases that it would not be unduly harsh to expect a young
man to relocate to Kabul (see RQ (Afghan National Army –
Hizb-i-Islami – risk) Afghanistan CG [2008] UKAIT 00013 at
paragraph 39 above) and that there was no support for the contention
that such relocation would in itself expose an individual to a real
risk of suffering treatment contrary to Article 3 simply by reason of
the living conditions and employment prospects there. Additionally,
they pointed out that the applicant would not need to be arriving in
Kabul without any resources of his own because the United Kingdom
Government provided a comprehensive package of reintegration
assistance to help enforced returnees to Afghanistan to achieve
sustainable return. Given the above, and the fact that the applicant
had already proved himself to be a resourceful young man, the
Government submitted that there were no substantial grounds for
believing that he would be at real risk of treatment contrary to
Article 3 or a violation of Article 2 upon his return to Afghanistan.
- Finally,
the Government relied upon the Court of Appeal judgment (see
paragraph 33 above) and noted that the applicant had failed to submit
any observations upon that judgment. They argued that, whether
considering the above matters separately or cumulatively, the
applicant had failed to demonstrate that there were substantial
grounds for believing that there was a real risk that he would be
ill-treated contrary to Article 3 or subject to a violation of
Article 2 upon return to Afghanistan.
b. The applicant’s submissions
- The
applicant submitted that there were substantial grounds for believing
that his rights under Articles 2 and 3 of the Convention would be
violated if he were to be returned to Afghanistan. He argued that the
IAA and domestic tribunals had accepted the credibility of his claim
and had focused on the possibility of safe relocation within
Afghanistan.
- He
claimed that Dr Marsden’s report of 5 June 2009 (see paragraphs
15-17 above) indicated that there was a clear ongoing risk to him
from General Dostum from which it would be difficult for him to
remain undetected or to escape, even in Kabul. He argued that, due to
his father’s involvement with General Malik, there would be a
number of aggrieved parties in Afghanistan seeking revenge and that
they would easily be able to identify him upon return.
- Relying
upon the UNHCR Eligibility Guidelines for Assessing
the International Protection Needs of Asylum-Seekers from Afghanistan
dated July 2009, which, similarly to the December 2010 UNHCR
Guidelines (see paragraphs 44-46 above), stated that blood feuds in
Afghanistan could be long-running conflicts with a cycle of
retaliatory violence targeting individuals by association with their
family members, the applicant argued that he would be seen as the
head of his family following his father’s death and that, as
his father’s son, he would be at real risk of death or torture.
- In
response to the Government’s argument that Dr Marsden’s
report was conditional and raised only possibilities of
ill-treatment, the applicant argued that the report could not be
regarded to be speculative because it had concluded that neither
internal relocation, nor a sufficiency of protection would be
available once S.S. had become linked with his father.
- In
response to the Government’s argument that the applicant would
not be at risk from General Dostum because revenge upon his father
had already been exacted, the applicant submitted that Dr Marsden had
clarified in his report that risks from association with a past
collaborator would not necessarily wane with time.
- Relying
on an article published in the Telegraph newspaper in August
2009 together with two articles in the Guardian newspaper
published in 2002 and 2009 which described past human rights abuses
committed by General Dostum, the applicant argued that, given the
General’s past conduct and “merciless nature”, he
would not be prepared to allow the applicant, the son of a man who
had helped bring about his defeat in 1997, to live.
-
In response to the Government’s claim that it was fanciful to
envisage that the Taliban would capture S.S. in Kabul, he argued that
it was instead fanciful to consider that they would not, given that
he would be known to them and had no protection in Kabul.
-
Finally, without providing any further detail, the applicant
contended that he would face a real risk of destitution in Kabul
which could cross the Article 3 threshold if he were obliged to sleep
in the streets.
2. The Court’s assessment
a. General principles
-
It is well-established that 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. Article 3 is absolute and it is
not possible to weigh the risk of ill-treatment against the reasons
put forward for the expulsion (Saadi v. Italy [GC], no.
37201/06, §§ 125 and 138, ECHR 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 not 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 will adopt such an approach only
in the most extreme cases of general violence, where there is 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,
cited above, § 115 and Sufi and Elmi v. the United
Kingdom, nos. 8319/07 and 11449/07, §
218 and § 248, 28 June 2011).
b. Application of these principles to the
present cases
- In
considering whether the applicant has established that he would be at
real risk of ill-treatment in Afghanistan, the Court observes 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. The Court further observes that the
applicant did not submit any evidence regarding the general security
situation or levels of violence in Afghanistan.
- Instead,
the applicant submitted that he would be at risk of treatment
contrary to Article 3 of the Convention upon return to Kabul on three
grounds. First, he claimed that he would be at risk of destitution in
Kabul. Second, he complained that he would be at risk of capture by
the Taliban in Kabul. Third, and most significantly, he complained
that he would be at risk of ill-treatment from General Dostum and his
followers in Afghanistan due to his father’s involvement with
General Malik in 1997.
- In relation to the first ground, the Court recalls
that humanitarian conditions in a country of return could give rise
to a breach of Article 3 of the Convention in a very exceptional case
where the humanitarian grounds against removal are “compelling”
(N. v. the United Kingdom [GC], no. 26565/05, §
42, 27 May 2008). However, the Court finds that in the present case
the applicant, a healthy male of 27 years of age, has failed to
submit any evidence to the Court to indicate that he would be unable
to cater for his most basic needs in Kabul or that he has any
particular vulnerability (see, mutatis mutandis, M.S.S. v.
Belgium and Greece [GC], no. 30696/09, §
254, 21 January 2011) to suggest that his
removal to Kabul would subject him to destitution or engage Article 3
of the Convention.
- The
Court notes at the outset that the applicant’s allegations
regarding his second ground were examined and rejected by the
domestic authorities. The Court sees no reason to depart from those
findings. It considers it to be significant that, even
according to the applicant’s own account, after he was arrested
by the Taliban in 1998, he was released after the payment of a bribe.
Moreover, the Taliban’s swift release of the applicant is
indicative of the fact that he was not and is not of any adverse
interest to them. Indeed, in that regard, Dr Marsden’s first
report also clarified that the possibility of any attack upon the
applicant from the Taliban had to be set against the fact that they
had not killed him during his arrest in 1998. Furthermore, the fact
that the Taliban showed no further interest in him between 1998 until
his departure from Afghanistan in 2002 corroborates the view that the
applicant is of no adverse interest to them. In all of the
circumstances, the Court finds that the applicant has failed to
substantiate his claim that the Taliban would seek to target him in
Kabul, an area outside their control, upon his return to Afghanistan.
- With
regard to the third ground, which constitutes the focus of the
applicant’s complaints before the Court, the Court notes, as a
preliminary matter, that the applicant has never claimed to have had
any personal involvement with General Malik, nor has he claimed that
he has an individual profile unconnected to his relationship with his
father. Furthermore, he has not claimed that he has ever had any role
in, or specific knowledge of, his father’s support of General
Malik.
- The
Court notes that the Secretary of State, the IAA, the IAT, the High
Court and the Court of Appeal have 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 Adjudicator at the IAA. He was legally represented
throughout the domestic proceedings and obtained three expert
reports. The national authorities had the benefit of seeing, hearing
and questioning the applicant in person and of assessing directly the
information and documents submitted by him, including the expert
reports of both Dr Giustozzi and Dr Marsden, before deciding the
case. The national authorities concluded that, although the applicant
had faced difficulties in Sherberghan in 2002 at the hands of General
Dostum and his father had been killed, the risk posed to him from the
General and his supporters was low at the present time, and he would
not be at real risk in Kabul. The Court finds no reason to conclude
that their decisions were inadequate; that their assessment was
insufficiently supported by relevant materials including both the
experts reports and the country guidance determinations (set out
above); or that the reasons given were insufficient. The Court
further considers that there is no 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 ill-treatment upon return to
Afghanistan. In particular, in its assessment of the risk to the
applicant, the Court takes heed of the following matters.
- The
Court accepts that the applicant’s father was a high-ranking
member of the military who had supported General Malik which had led
to the arrest of both the applicant and his father in 2002 and his
father’s subsequent death at the hands of General Dostum. In
coming to that conclusion, the Court has regard to the relevant
findings of the Adjudicator in the applicant’s appeal, which
were upheld by the IAT and have not been questioned by the
Government. The Court further takes into account Dr Marsden’s
reports which conclude that, if General Dostum or his supporters were
to actively target the applicant upon his return, it would be
difficult for the applicant to escape and he would be entirely
vulnerable to their advances.
- However,
the Court finds it significant that Dr Marsden’s reports
premise the risk to the applicant on the condition that General
Dostum or his supporters maintain a grievance against his father,
identify the applicant and decide to target him upon return. The
Court observes that Dr Marsden was of the view that the primary risk
to the applicant arose from the fact that his father may have
provided strategic, logistical and technical support to General Malik
in his defeat of General Dostum in Mazar-e-Sharif in 1997 and that,
if such support had been significant to the final outcome, General
Dostum may have a very considerable desire for revenge. However, the
Court notes that the applicant is unaware of the nature of his
father’s role in those events and has not been able to submit
any detail or evidence to suggest that his father ever provided such
significant or publicised support. 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 (see, N. v. Sweden
and Collins and Akasiebie v. Sweden
(dec.), cited above), the Court is not convinced that, in the
present case, there is any evidence to indicate that the applicant’s
father played such a significant role in the events of 1997 that
General Dostum or that his followers would continue to have an
interest in targeting his son fourteen years later. Indeed, the Court
considers that any risk to the applicant is likely to have decreased
due to the passage of time since both the events of 1997 and the
applicant’s arrest in 2002.
- Furthermore,
the Court takes note of the fact that Dr Marsden’s report
acknowledged that General Dostum now has other considerations which
would influence his behaviour, including his desire for
respectability and power and influence within the current Afghan
Government, and that it was therefore difficult to assess whether or
not General Dostum would target the applicant upon return. The Court
is not convinced, in the absence of other evidence to the contrary,
that General Dostum would risk undermining his current position
within Afghanistan by actively seeking out the son of a man who may
have helped his rival General Malik to an unknown extent fourteen
years earlier. In that regard, the Court considers that it is
significant that the applicant was able to escape from his detention
in 2002 indicating that it was his father and not him who was of
adverse interest to the General.
- Finally,
the Court takes heed of the December 2010 UNHCR Guidelines in
relation to blood feuds, which can be long running conflicts and may
place an individual at risk. However, the Court does not consider
that those Guidelines provide any substantive support for the
applicant’s claim that he would be at risk in Afghanistan.
- In
all of the circumstances, the Court considers that the domestic
authorities were entitled to take the view that the risk to the
applicant set out in Dr Marsden’s reports was conditional in
nature and is not persuaded that the applicant has demonstrated that
General Dostum or his followers would be motivated to target him upon
return to Kabul. Thus, 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.
- Consequently,
this complaint is manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and must be rejected in
accordance with Article 35 § 4 of the Convention.
B. Other complaints
- The
applicant complained that the Government’s attempt to remove
him to Afghanistan pending the renewed application for judicial
review at the High Court violated Articles 6 and 8 of the Convention.
- In
respect of the applicant’s claim under Article 6 of the
Convention, the Court recalls that decisions regarding the entry,
stay and deportation of aliens do not concern the determination of an
applicant’s civil rights or obligations or of a criminal charge
against him, within the meaning of Article 6 § 1 of the
Convention (Maaouia v. France [GC], no. 39652/98, § 40,
ECHR 2000 X). This complaint must therefore be rejected as
incompatible ratione materiae with the provisions of the
Convention in accordance with Article 35 §§ 3 and 4 of the
Convention.
- The
Court further observes that the applicant has not particularised or
substantiated his claim under Article 8 of the Convention. This
complaint is therefore manifestly ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
C. The interim measure indicated under Rule 39
- In
view of the above, it is appropriate to discontinue the application
of Rule 39 of the Rules of Court.
- For these reasons, the Court by a majority
Declares the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President