In the case of S.H.H. v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 8 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
60367/10) 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,
Mr S.H.H. (“the applicant”), on 18 October 2010.
The applicant, who had been granted legal aid,
was represented by Duncan Lewis Solicitors, a law firm practising in London, assisted by Mr M. Symes, counsel. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr M. Kuzmicki 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 of
the Convention.
On 29 October 2010, 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 3 January 2011, 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) 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 is an Afghan national from Nangarhar
province in eastern Afghanistan who was born in 1979 and lives in the United Kingdom.
He arrived in the United Kingdom on 30 August
2010 and claimed asylum on 1 September 2010. The basis of his claim was that he
would be arrested and killed by the Afghan authorities because, after the death
of his father, he had taken over the role of the military commander of 25 men
for Hizb-i-Islami. He also claimed that Hizb-i-Islami would force him to become
a suicide bomber. Finally, he claimed that he had been seriously injured during
the course of a rocket launch in Afghanistan four years earlier and had been
left disabled. He relied on the fact that his lower right leg and penis had
both been amputated and he had a false limb; that his left leg and right hand had
been seriously injured; and that he suffered from depression.
On 17 September 2010, his asylum application was
refused by the Secretary of State.
First, due to the inconsistencies in the
applicant’s claim and the vagueness of his account, it was not accepted either that
the applicant’s father had ever been involved with Hizb-i-Islami or that the
applicant had ever been a Hizb-i-Islami commander.
Second, it was not accepted that he would be of
any adverse interest to the Afghan authorities upon return given, inter alia,
that he had not demonstrated any Hizb-i-Islami involvement; that he had
remained in hospital for two months after the rocket attack without any
problems; that he had returned from hospital to his home village where he had
lived for six months without any problems from the authorities; and that, in
any event, a number of ex Hizb-i-Islami members occupied high positions within
the Afghan Government and the objective evidence demonstrated that even former
commanders did not have any problems with the Afghan authorities if they made
it clear that they were no longer working with Gulbuddin Hekmatyar
(Hizb-i-Islami’s leader).
Third, it was not accepted that he would be at
risk from Hizb-i-Islami given that he had claimed that they had
supported him when he had been injured; that they had provided him with funds
to travel to the United Kingdom; and the fact that, in his original screening
interview with the United Kingdom immigration authorities, he had only made
reference to his fear of the Afghan authorities and had not mentioned any risk
from Hizb-i-Islami.
The Secretary of
State did not consider that the absence of a medical report on the applicant’s
physical injuries would prejudice his asylum application from being decided
fairly because it was not disputed that his injuries existed and any report
would not be able to corroborate how his injuries had been sustained. Further,
it was not considered that the applicant’s disabilities could support his claim
to be at risk upon return because the applicant himself was uncertain as to who
had been responsible for the rocket attack which had caused his injuries.
Although it was acknowledged that the medical
facilities in Afghanistan were limited and underdeveloped, it was noted that
the applicant had previously received hospital care there and it was considered
that any further medical care would similarly be available to him upon return.
Additionally, it was noted that the applicant’s family remained in Afghanistan and it was considered that there was no reason to suggest that they would not
adequately support and assist him upon return. Consequently, it was not
accepted that his case was “very exceptional” or that it would cross the high
threshold of severity such as to engage Article 3 within the meaning of N.
v. the United Kingdom [GC], no. 26565/05, 27 May 2008.
Finally, with reference to the country guidance
case of GS (Article 15(c):
indiscriminate violence) Afghanistan CG
[2009] UKAIT 00044 (see paragraphs 28-29 below), it was not
accepted that the applicant would be personally at enhanced risk of
indiscriminate violence in Afghanistan as a person with an amputated limb. To
that end, the Secretary of State noted that there were an estimated 800,000
mobility impaired persons in Afghanistan of whom 40,000 were limb amputees. The
applicant had shown the resolve and ability to travel to the United Kingdom via various methods of transport and had resided in Afghanistan for four years following
his injuries. As such, he had not shown that he would be at enhanced risk or
that there was no viable relocation option open to him in Afghanistan.
The applicant appealed
against the refusal of his asylum claim claiming that his return to Afghanistan would violate, inter alia, Article 3 of the Convention. In his appeal
statement, he claimed that he had no one in Afghanistan to support him and that
he would find life extremely hard in Afghanistan. He claimed that he had lost
contact with his two sisters who were both married and living with their own
families in Afghanistan.
On 4 October 2010,
the First-tier Tribunal (Immigration and Asylum Chamber) (“the First-tier
Tribunal”) dismissed the applicant’s appeal for substantially the same reasons
as the Secretary of State as set out above. The Immigration Judge accepted certain
aspects of the applicant’s claim stating:
“103. I accept that he is an Afghan national who may well have
come from a village in Nangarhar province and may well have spent the early
part of his life as a farmer. I accept that he may well be a single man and
that he has clearly suffered certain severe injuries as a result of an accident
which may well have involved a mortar, rocket or some form of bomb. I accept that
he does have an amputated lower leg with a false limb together with the other
injuries he has described.
104. I accept that he made his way to the UK and this may well have been over a six month period in a variety of modes of transport including
a lorry. I accept that he will have paid an agent for this and that sum may
well have been in the region of 15,000 US dollars. I accept that it may have
been impractical for him to make a separate application for asylum en route. It
is likely that he would have been under the control of the agent.
105. However, beyond these findings I cannot go. I cannot be
satisfied as to any other details of the appellant’s case. I cannot be
satisfied that he has established that he was a commander for the Hizb-e-Islami
and for approximately a year and thereafter he remained with them after a brief
stay with his family in the family village until he decided to leave, when it
was suggested that he became a suicide bomber.”
The Immigration Judge found, in the alternative,
that even if the applicant had at some stage been a member of the Hizb-i-Islami,
he had not shown that he would not be able to return to Afghanistan and make
his peace with the Afghan authorities as someone who had left Hizb-i-Islami a
number of years earlier. The Immigration Judge considered that there was no
reason why the applicant could not return to Afghanistan to resume living
either in Nangarhar or in Kabul without any fear from the authorities.
. In relation
to the applicant’s disability, the Immigration Judge commented that it might
“well be that there would be limited prospects for him in Afghanistan in view of his injuries”, and stated that:
“[H]e would have certain
disadvantages greater than others by reason of his disability. But as referred
to in the objective evidence he would not be alone with 80,000 amputees and 400,000
rendered disabled by the effects of war. This may not be a comforting statistic
but it demonstrates how persons with such disadvantages are continuing to exist
in Afghanistan.”
20. Finally,
the Immigration Judge did not accept that the applicant had demonstrated that
he would be more susceptible to indiscriminate violence by reason of his
disability noting that:
“[T]he fact that he has survived in Afghanistan for three to
four years without any indiscriminate violence overcoming him demonstrates that
he has managed to cope with his disability in the political unrest that exists.
The fact that he managed to come the whole of the way from Afghanistan in a variety of means of transport indicates that he is a resilient man who has overcome
difficulties in a practical way. He may well have received assistance from
those sympathetic to them. There is no reason to think that he will not
continue to do so throughout his life.”
. On
7 October 2010, a Senior Immigration Judge of the First-tier Tribunal refused
permission to appeal because the grounds of appeal only pleaded to be allowed
to remain in the United Kingdom but did not identify any arguable error of law
and there was no other good reason to grant permission to appeal.
. On
13 October 2010, the Upper Tribunal of the Immigration and Asylum Chamber (“the
Upper Tribunal”) refused permission to appeal because no arguable error of law
could be found in the Immigration Judge’s determination.
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.
24. Appeals in asylum, immigration and
nationality matters are heard by the First-tier Tribunal (Immigration and
Asylum Chamber), which replaced the former Asylum and Immigration Tribunal
(“AIT”) on 15 February 2010.
Section 11 of the Tribunals,
Courts and Enforcement Act 2007 provides a right of appeal to the Upper
Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal,
on
any point of law arising from a decision made by the First-tier Tribunal other
than an excluded decision.
26. 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. Country
guidance determinations
Country guidance determinations of both the former AIT and the Upper
Tribunal 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 AIT or Upper Tribunal 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.
1. GS (Article 15 (c) :
Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044
In the country guidance
determination of GS, of 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 (see paragraphs 33-34).
In considering the
concept of a group of people at enhanced risk of indiscriminate violence, the
AIT further commented that:
“The European Court made it clear in Elgafaji that where
a person comes within a group of people for whom there is an enhanced risk, the
degree of indiscriminate violence does not need to be as high as it would
otherwise have to be in order to invoke Article 2 or Article 15(c). We have
already observed that the ultimate test is that of real risk of serious harm.
We have not heard much evidence about enhanced risk categories, and that is not
an issue we have had to consider in relation to the appellant. It was accepted
by counsel for the respondent that those who could be perceived as
collaborators may be considered to be in such a category. That may include
teachers, local government officers and government officials. The concept of a
group of people at enhanced risk of indiscriminate violence is not an
immediately obvious one. The difficulty concerns the use of the word
“indiscriminate”, but the answer is partly contained in QD and AH, which
considered the “individual risk of indiscriminate violence”. The way in which
an enhanced risk might arise for a group can best be demonstrated by example. If,
say, the Taliban wanted to make a point about teachers continuing to teach
girls, it may resolve to kill a teacher. It would not be any specific teacher
but one who came into their sights. A teacher is of course not a combatant and
an attempt to kill the first teacher they came across could be argued to
demonstrate that teachers were then at enhanced risk of indiscriminate
violence. Another possible example could be disabled people. If a bomber, or
sniper, were to walk into a crowded marketplace, the public may well flee. A
man with only one leg would move considerably more slowly and arguably as a
result would be in a higher risk group than the general public. In view of the
paucity of evidence, we cannot give a list of risk categories, and certainly
cannot say that any particular occupation or status puts a person into such a
higher risk category. We merely record that there may be such categories, and
that if a person comes within one, the degree of indiscriminate violence
required to succeed may be reduced depending upon the particular facts of the
case both in terms of the individual concerned, and the part of Afghanistan
from which he comes. It should also be borne in mind that such a person may,
depending on the facts, be entitled to refugee status rather than relying on
the subsidiary protection offered by Articles 2 and 15 of the Qualification
Directive. We emphasise that those examples should not be taken to indicate
that teachers, or the disabled, are members of enhanced risk groups, without
proof to that effect.”
2. Further consideration of the level of
indiscriminate violence in Afghanistan by the Upper Tribunal
In HK and others (minors - indiscriminate
violence - forced recruitment by Taliban - contact with family members)
Afghanistan CG [2010] UKUT 378 (IAC), the Upper Tribunal, in a determination
dated 21 October 2010, concluded, inter alia, that the evidence as
to the level of indiscriminate violence affecting civilians generally in
Afghanistan which had become available since GS (see paragraphs 28-29 above) was not sufficient to show that the guidance given by the AIT in GS was no longer to be regarded as valid.
In AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC), promulgated on 1 February 2012, the Upper Tribunal found
that there could be no doubt that the material before it revealed a
deterioration in the security situation in Afghanistan since HK and others. However,
the Upper Tribunal found that there was no evidence to suggest that there was
any material difference to the risk to which the adult civilian population was
subject in Afghanistan.
In AK (Article
15(c)) Afghanistan CG [2012] UKUT 00163 (IAC), promulgated on 18 May 2012,
the Upper Tribunal reconsidered the evidence as to the level of indiscriminate
violence affecting ordinary civilians which had become available since GS (see
paragraphs 28-29 above). The Upper Tribunal concluded as follows:
(i) This decision replaces GS (Article 15(c):
indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 as current
country guidance on the applicability of Article 15(c) to the on-going armed
conflict in Afghanistan. ...
(ii) Despite a rise in the number of civilian deaths and casualties and (particularly in the 2010-2011 period) an expansion of the geographical
scope of the armed conflict in Afghanistan, the level of indiscriminate
violence in that country taken as a whole is not at such a high level as to
mean that, within the meaning of Article 15(c) of the Qualification Directive,
a civilian, solely by being present in the country, faces a real risk which
threatens his life or person.
(iii) Nor is the level of indiscriminate violence, even in the
provinces worst affected by the violence (which may now be taken to include Ghazni but not to include Kabul), at such a level.
(iv) Whilst when assessing a claim in the context of Article
15(c) in which the respondent asserts that Kabul city would be a viable
internal relocation alternative, it is necessary to take into account (both in
assessing “safety” and reasonableness”) not only the level of violence in that
city but also the difficulties experienced by that city’s poor and also the
many Internally Displaced Persons (IDPs) living there, these considerations will not in general make return to Kabul unsafe or unreasonable...”
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 within the European Union legal
order, 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 or
punishment of an applicant in the country of origin; or
c) serious and individual threat to a civilian’s life
or person by reason of indiscriminate violence in situations of international
or internal armed conflict.”
In case C-465/07, Elgafaji v. Staatssecretaris van Justitie, 17 February 2009, the Grand Chamber of
the then Court of Justice of the European Communities was asked to give a
preliminary ruling on the meaning of Article 15(c) of the Qualification
Directive and the criteria for its application. The court considered it
appropriate to compare the three types of “serious harm” defined in Article 15
of the Directive and continued:
“...the terms ‘death penalty’, ‘execution’ and ‘torture or
inhuman or degrading treatment or punishment of an applicant in the country of
origin’, used in Article 15(a) and (b) of the Directive, cover situations in
which the applicant for subsidiary protection is specifically exposed to the
risk of a particular type of harm.
33 By contrast, the harm defined in Article 15(c) of the
Directive as consisting of a ‘serious and individual threat to [the applicant’s]
life or person’ covers a more general risk of harm.
34 Reference is made, more generally, to a ‘threat ... to
a civilian’s life or person’ rather than to specific acts of violence.
Furthermore, that threat is inherent in a general situation of ‘international
or internal armed conflict’. Lastly, the violence in question which gives rise
to that threat is described as ‘indiscriminate’, a term which implies that it
may extend to people irrespective of their personal circumstances.
35 In that context, the word ‘individual’ must be
understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place -
assessed by the competent national authorities before which an application for
subsidiary protection is made, or by the courts of a Member State to which a
decision refusing such an application is referred - reaches such a high level
that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the
Directive.
...
39 In that regard, the more the applicant is able to show
that he is specifically affected by reason of factors particular to his
personal circumstances, the lower the level of indiscriminate violence required
for him to be eligible for subsidiary protection.
...
43 Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that:
- the existence of a serious and individual threat
to the life or person of an applicant for subsidiary protection is not subject
to the condition that that applicant adduce evidence that he is specifically
targeted by reason of factors particular to his personal circumstances;
- the existence of such a threat can exceptionally
be considered to be established where the degree of indiscriminate violence
characterising the armed conflict taking place -- assessed by the competent
national authorities before which an application for subsidiary protection is
made, or by the courts of a Member State to which a decision refusing such an
application is referred -- reaches such a high level that substantial grounds
are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the
territory of that country or region, face a real risk of being subject to that
threat.
44 It should also, lastly, be added that the
interpretation of Article 15(c) of the Directive, in conjunction with Article
2(e) thereof, arising from the foregoing paragraphs is fully compatible with
the ECHR, including the case-law of the European Court of Human Rights relating
to Article 3 of the ECHR (see, inter alia, [NA. v. the United Kingdom, no.
25904/07, §§ 115-117, 17 July 2008] and the case-law cited).”
IV. RELEVANT INTERNATIONAL LAW
The United
Nations Convention on the Rights of Persons with Disabilities and its Optional
Protocol were adopted by the United Nations General Assembly on 13 December 2006. Twenty-six Contracting States have
ratified both the Convention and the Optional Protocol. A further seven
Contracting States have ratified only the Convention. The United Kingdom ratified the Convention on 8 June 2009 and the Optional Protocol on 7 August 2009.
Article 1 provides that:
“The purpose of the present Convention is to
promote, protect and ensure the full and equal enjoyment of all human rights
and fundamental freedoms by all persons with disabilities, and to promote
respect for their inherent dignity.
Persons with disabilities include those who have
long-term physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others.”
Article 11 provides that:
“States Parties shall take, in accordance with
their obligations under international law, including international humanitarian
law and international human rights law, all necessary measures to ensure the
protection and safety of persons with disabilities in situations of risk,
including situations of armed conflict, humanitarian emergencies and the occurrence
of natural disasters.”
. Article 15,
where relevant, provides that:
“...
2. States Parties shall take all effective
legislative, administrative, judicial or other measures to prevent persons with
disabilities, on an equal basis with others, from being subjected to torture or
cruel, inhuman or degrading treatment or punishment.”
Article 16, where relevant, provides that:
“...
4. States Parties shall take all appropriate
measures to promote the physical, cognitive and psychological recovery,
rehabilitation and social reintegration of persons with disabilities who become
victims of any form of exploitation, violence or abuse, including through the
provision of protection services. Such recovery and reintegration shall take
place in an environment that fosters the health, welfare, self-respect,
dignity and autonomy of the person and takes into account gender- and age-specific
needs....”
V. RELEVANT INFORMATION ABOUT AFGHANISTAN
A. United Nations High Commissioner for Refugees
(“UNHCR”)
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.
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.”
The
Guidelines further recorded a worsening security environment in certain areas
of the country and characterised the situation as one of generalised violence
in the Helmand, Kandahar, Kunar and parts of Ghazni and Khost provinces. The
Guidelines stated the following:
“The intensification and spread of the armed conflict in Afghanistan took a heavy toll on the civilian population in 2009 and continued to worsen
through the first half of 2010. At least 5,978 civilians were reported killed
and injured in 2009, the highest number of civilian casualties recorded in one year since the fall of the
Taliban in 2001. 3,268 casualties were
recorded during the first six months of 2010, representing a 31 percent
increase over the same period in 2009. Compared
to previous years and contrary to seasonal trends, a significant increase in
the number of security incidents has been observed during the first half of
2010. This increase is in part attributable to an increase in military
operations in the southern region since February 2010 and to significant
activities of armed anti-Government groups in the south-eastern and eastern
regions of Afghanistan. It is reported
that armed anti-Government groups remain responsible for the largest proportion
of civilian casualties, whether due to targeted or indiscriminate attacks.
The continued instability in Afghanistan has resulted in the
shrinking of the humanitarian space, limiting the presence and activities of
humanitarian workers and NGOs. Conflict-related
human rights violations are on the rise, including in areas previously
considered relatively stable. The
escalation of the conflict between the Afghan and international military
forces, and the Taliban and other armed groups, has contributed to limiting the
access to health care and education, particularly in the southern and
south-eastern regions of the country. A broad spectrum of civilians, including
community elders, humanitarian personnel, doctors, teachers and construction
workers has been targeted by armed anti-Government groups...”
In relation
to internal relocation, the Guidelines stated that:
“The traditional extended family and community structures of
Afghan society continue to constitute the main protection and coping mechanism,
particularly in rural areas where infrastructure is not as developed. Afghans
rely on these structures and links for their safety and economic survival,
including access to accommodation and an adequate level of subsistence. Since
the protection provided by families and tribes is limited to areas where family
or community links exist, Afghans, particularly unaccompanied women and
children, and women single head of households with no male protection, will not
be able to lead a life without undue hardship in areas with no social support
networks, including in urban centres. In certain circumstances, relocation to an
area with a predominately different ethnic/religious make-up may also not be
possible due to latent or overt tensions between ethnic/religious groups.”
B. Other United Nations Reports
1. United Nations Assistance Mission in Afghanistan
The United Nations
Assistance Mission in Afghanistan (“UNAMA”) Mid Year Report 2011 on the
Protection of Civilians in Armed Conflict (“the UNAMA Report”) covers the
period from 1 January 2011 and 30 June 2011 and is compiled, inter alia,
to monitor the situation of civilians in Afghanistan. In the Executive Summary,
the UNAMA Report states:
“In the first six months of 2011, the armed conflict in Afghanistan brought increasingly grim impacts and a bleak outlook for Afghan civilians. As
the conflict intensified in the traditional fighting areas of the south and
southeast and moved to districts in the west and north, civilians experienced a
downward spiral in protection. At the same time, non-State armed groups or
Anti-Government Elements (AGEs) altered their tactics with deadly results.
Increasingly, AGEs undertook unlawful means of warfare including increased use
of improvised explosive devices (IEDs) - particularly victim-activated pressure
plate IEDs which act like anti-personnel landmines and are indiscriminate, as
they are detonated by any person stepping on or any vehicle driving over them -
targeted killings of high profile civilians, and attacks on protected places
such as hospitals.”
2. United Nations Committee on Economic Social and
Cultural Rights (“UNCESCR”)
In its Concluding Observations on Afghanistan dated 7 June 2010, the UNCESCR stated:
“The Committee, while taking note of the adoption of the 2008
Afghanistan National Disability Action Plan [see paragraph 48 below], regrets that the report does not accurately reflect the current situation
of persons with disabilities and characterizes disability mainly as a matter of
charity and a medical concern. The Committee is concerned at the lack of sufficient
measures to implement the Action Plan.
The Committee recommends that the State party take concrete
steps to implement the 2008 Afghanistan National Disability Action Plan without
discrimination and, in this regard, consider ratifying the Convention on the
Rights of Persons with Disabilities and its Optional Protocol.”
C. Reports from Afghanistan
1. The Afghanistan Independent Human Rights Commission
(“the AIHRC”)
In its Report on the
Situation of Economic and Social Rights in Afghanistan - IV, Qaws 1388
(November/December 2009), the AIHRC stated:
“Persons with disabilities are among the most vulnerable
segments of population and the government has taken no measures to enable their
full participation in society and to ensure their access to social and
educational services. Due to the lack of public awareness about the concept of
disability, persons with disabilities are often perceived as a family and
societal burden and are humiliated and discriminated against. Article 22
of the Afghan Constitution has emphasised the equality of all people and has
outlawed all forms of discrimination among citizens. Article 53 of the
Constitution requires the government of Afghanistan to take the necessary
measures to ensure rehabilitation, training, and active social participation of
persons with disabilities and provide them with medical and financial
assistance.
Under ANDS [“the Afghanistan National Development Strategy”],
the government is obligated to provide further assistance to meet the special
needs of persons with disabilities, including their inclusion in the community through
providing education and job opportunities. No significant progress is visible
in this area.
...
Thirty years of war in Afghanistan had unfavourable effects and
one of these is the rise in the number of persons with disabilities. The Afghan
conflict not only physically incapacitated people, but it also had negative
implications for the psyche of Afghan public.
...
There is no precise assessment of the number and situation of
persons with disabilities in Afghanistan and different authorities have
presented different statistical data on the number of persons with
disabilities. Handicap International estimates that there are 800,000 persons
with severe disabilities, however, according to the national disability survey
in Afghanistan, out of 25 million Afghan people, 747,500 to 867,100 people
have severe disabilities, 17% of which are persons with war disability and 6.8%
are victims of mines and other unexploded ordinance (UXO). On an average basis,
for every five families, there is a person with a disability.
...
Approximately 70% of persons with disabilities aged over 15 are
jobless. Disability has had a direct and strong correlation with the rising
trend of unemployment.
...
Growing insecurity, homelessness, disputes over property, and
lack of livelihood are the factors obstructing the return of refugees and the
reintegration of returnees and IDPs. Insecurity in many parts of the country
have made return to places of origin almost impossible. Several regime changes
in the course of the Afghan conflict have given rise to several ownership claims
on one single land plot. Many commanders have illegally expropriated lands and
distributed them among their soldiers and relatives. Family size increased
almost three times during forced migration and their return to their places of
origin is obstructed, for their existing lands or houses are too small to
accommodate them all. Additionally, many people who fled Afghanistan lacked property and are reluctant to return to their places of origin because there are
no livelihood options. Inadequate economic opportunities have made return to
one’s place of origin either impossible or undesirable. Most people who are
unable to return to their places of origin migrate to other cities due to lack
of livelihood options and homelessness and therefore join the category of the
urban poor.”
2. The Afghanistan National Disability Action Plan
2008-2011 (Ministry of Labour, Social Affairs, Martyrs and Disabled, May 2008)
The
Afghanistan National Disability Action Plan examined the challenges faced by
persons with disabilities in Afghanistan and set national objectives and
strategies for the Afghan Government and other stakeholders to help improve the
lives of persons with disabilities throughout Afghanistan. It observed, inter
alia, the following:
“Services are not equitably spread across all areas of the
country and many people with disabilities lack appropriate care or must travel
long distances to access it. For example, physical rehabilitation activities
are available in only 80 out of 364 districts in 19 of 34 provinces in Afghanistan. Prior to the completion of the ANDS there was insufficient data available on
the socio-economic conditions of people with disabilities. However, it was
recognized that people with a disability were among those in the most
socio-economically vulnerable situation in Afghanistan.
...
For example, the ANDS found that 70 percent of people with a
disability aged over 15 are unemployed; 53 percent of males and 97 percent of
females. In comparison, 25 percent of men and 94 percent of women without
disability are unemployed.”
D. United States of America Department of State Report
In its 2011 Country
Report on Human Rights Practices - Afghanistan, published in May 2012, the
State Department observed:
“Continuing internal conflict resulted in civilian deaths,
abductions, prisoner abuse, property damage, and the displacement of residents.
The security situation remained a problem during the year due to insurgent
attacks. According to a 2011 report by UNAMA, civilians continued to bear the
brunt of intensified armed conflict as civilian deaths increased by 8 percent
during the year compared with 2010.
The large number of attacks by anti-government elements limited
the capability of the central government to protect human rights in many
districts, especially in the South. The growth in civilian casualties was due
primarily to the armed opposition’s indiscriminate use of land mine-like
pressure plate improvised explosive devices
...
The
government cooperated with the UNHCR, the International Organization for
Migration (IOM), and other humanitarian organizations in providing protection
and assistance to internally displaced persons, refugees, returning refugees,
and other persons of concern but was limited by lack of infrastructure and
capacity.
...
Internally Displaced Persons (IDPs)
The country continued to experience high levels of internal
population movements, triggered by military operations, natural disasters, and
irregular labor conditions. Large numbers of refugees returned but were unable
to reside safely in their previous homes because of poor service infrastructure
in rural areas, and the volatile security situation in some parts of the
country.
At year’s end, an estimated 447,547 persons were displaced,
according to the UNHCR. Of these, 116,741 persons were displaced prior to
December 31, 2002 (referred to as IDPs in protracted displacement). Between
January and December, 185,631 persons were displaced due to conflict. The main
areas in which displacement originated were Badghis, Farah, Ghor, and Herat in the West and Faryab in the North. The displaced populations largely remained in
their regions of origin. The key provinces that received IDPs, in order of the
numbers displaced, were Herat, Kandahar, Nangarhar, and Helmand.
Local governments provided access to land for basic
accommodation, while international organizations and the Afghan Red Crescent
Society provided shelter, food, and other life-saving aid. However, access to
land and rights for returnees and IDPs were hampered by a weak judiciary. Some
IDPs in protracted displacement established self-sufficient settlements in the Herat, Kandahar, Helmand, and Jalalabad areas.
Unverified populations, including IDPs and refugees who returned,
were also known to reside alongside urban slum dwellers in unauthorized
informal settlements in the larger urban areas of Kabul, Jalalabad,
Mazar-e-Sharif, and Herat. These settlements were prone to serious deficiencies
in several areas, including health, education, security of tenure, and absence
of registration of child births and identity cards.
Restricted access due to poor security limited the UNHCR’s
efforts to assess the numbers of displaced persons and made it difficult to
provide assistance.
...
Persons with Disabilities
The constitution prohibits any kind of discrimination against
citizens and requires the state to assist persons with disabilities and to
protect their rights, including the rights to health care and financial
protection. The constitution also requires the state to adopt measures to
reintegrate and ensure the active participation in society of persons with
disabilities. The MoLSAMD [Ministry
of Labor, Social Affairs, Martyrs, and Disabled] drafted and the cabinet
approved a five-year National Action Plan on March 16, which directs
ministries to provide vocational training, establish empowerment centers,
distribute food, build handicapped ramps in some government offices, conduct
public awareness programs about the disabled, and take other steps to assist
Afghans with disabilities.
The government and NGOs estimated that there were up to 900,000
mobility-impaired persons, of whom approximately 40,000 were limb
amputees. The MoLSAMD stated that it provided financial support to 79,202 individuals
with disabilities. The MoLSAMD accorded special treatment to families of those
killed in war.
In the Meshrano Jirga, two of the presidentially appointed
seats were reserved for persons with disabilities.”
E. Non-governmental Organisations’ reports
1. Landmine and Cluster Munition Monitor
In a report entitled
“Key Developments since May 2005”, the Landmine and Cluster Munition Monitor
reported that:
“A survey by the Ministry of Labor and Social Affairs and the International
Rescue Committee found an estimated 84 percent unemployment rate among people
with disabilities.”
2. Austrian Centre for
Country of Origin and Asylum Research and Documentation
In a report
entitled “Country Report Afghanistan. 11th European Country of Origin
Information Seminar (Vienna, 21-22 June 2007)”, published in November 2007, the
Austrian Centre for Country of Origin and Asylum Research and Documentation
summarised the presentations made during an expert seminar, including
representatives from UNHCR, in June 2007. The report observed that:
“In addition to Afghans who are or continue to be in need of
international protection, there are certain Afghans currently outside
Afghanistan for whom return would not constitute a durable solution and would
endanger their physical safety and well-being, given their extreme
vulnerability and nature of their special needs. In the context of return to Afghanistan, extremely vulnerable cases can be divided into two broad categories:
·
Individuals whose vulnerability is the result of a lack of
effectively functioning family and/or community support mechanisms and who can
not cope, in the absence of such structures,
·
Individuals who can not cope, either because such support structures
are not available or because Afghanistan lacks the necessary public support
mechanisms and treatment opportunities.
Against this background, there are Afghans for which UNHCR
Afghanistan strongly advises that, at least temporarily, solutions be identified
in countries of asylum and that exemptions to obligations to return are made on
humanitarian grounds. This may be the case for Afghans who fall into the
following categories. Groups of concern are (see upcoming UNHCR paper for
details):
·
Unaccompanied females,
·
Single parents with small children without income and family and
/or community support,
·
Unaccompanied elderly,
·
Unaccompanied children,
·
Victims of serious trauma (Including sexual violence),
·
Physically disabled persons,
·
Mentally disabled persons,
·
Person with medical illness (contagious, long term or short term).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that his removal to Afghanistan would violate Article 3 of the Convention, which 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 considers that the applicant’s 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 acknowledged
that his account of activities with Hizb-i-Islami in Afghanistan had not
been accepted by the domestic authorities, but he pointed out that they had
accepted that, in 2006, he had been injured and left disabled with his right
leg and penis amputated and his left leg and right hand seriously injured. The applicant
also asserted that the domestic authorities had further accepted that he was
single, that he had previously worked as a farmer and that he was not educated.
The applicant also argued that his evidence relating to his family (that both
of his parents had died, that he had no brothers and that he was not in contact
with his two married sisters who were living with their own families) had not
been explicitly rejected by the Immigration Judge.
Given the above facts, the applicant argued that his
return to Afghanistan would violate Article 3 of the Convention in two ways.
First, he asserted that disabled persons were at particular risk of violence in
the armed conflict in Afghanistan, both because they would be unable to remove
themselves from dangerous situations swiftly (as suggested by the AIT’s
comments in the country guidance determination of GS (Article 15 (c) :
Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 (see
paragraphs 28-29 above)) and because they would be at greater risk of homelessness
and thus more prone to being affected by the indiscriminate violence which
occurs on the streets of Afghanistan. He argued that the Immigration Judge had
barely considered the impact of this risk upon him and, in any event, had done
so without reference to most of the background evidence that he now cited (see
paragraphs 41-51 above).
57. Second, the applicant argued that
whilst the difficulties faced by persons with disabilities in Afghanistan may
not engage Article 3 if they had family support available to them, a person,
like the applicant, without close family connections would suffer the full
consequences of the discrimination against, and ignorance surrounding, persons
with disabilities (see the AIHRC report at paragraph 47 above). He argued that,
in the struggle for scarce accommodation and given the length of time that he
had been outside of Afghanistan, there was a real risk he would be left
seriously disadvantaged and in conditions analogous to those set out in M.S.S.
v. Belgium and Greece [GC], no. 30696/09, § 263, 21 January 2011. Thus
he contended that he would be left living in the street, without resources or
access to sanitary facilities, and without any means of providing for his
essential needs. He submitted that the domestic authorities had failed to properly
consider that, as a victim of an armed conflict without family members, he was
plainly a member of a particularly underprivileged and vulnerable population
group in need of special protection (see M.S.S, cited above, § 251). In
that regard, he asserted that the Immigration Judge’s statement that he “would
have certain disadvantages greater than others by reason of his disability” but
that “he would not be alone” because persons with such disadvantages were continuing
to exist in Afghanistan (see paragraph 19 above) did
not begin to properly consider the issue of his vulnerability.
. The applicant further argued that his
case could be distinguished from N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008 because it did not involve a naturally occurring illness or merely the consequences of a serious
medical condition and the lack of sufficient treatment available for it in Afghanistan. He submitted that the shortages of accommodation and welfare
arrangements in Afghanistan were not part of the vicissitudes of life but were
the legacy of the armed conflicts that had long affected the country.
In that regard, he stated that one of the
effects of the lengthy conflict was the rise in the number of persons with
disabilities in Afghanistan. He also argued that the armed conflict was
deteriorating; that there had been a 20% increase in civilian casualties; and
that Nangarhar province, from where the applicant originated, had become a
major recipient of internally displaced persons (see the United States 2011
Country Report on Human Rights Practices - Afghanistan at paragraph 49 above). In light of those facts, he argued that there were serious grounds for
believing that, as a disabled man, he would be involved in a competition for
scarce resources within which he would be ill-equipped to succeed. He argued
that, unlike many returnees, due to his disabilities, there was no real chance
that he would find work in light of the evidence that the unemployment rate
among people with disabilities was extremely high (see the Landmine and Cluster
Munition Monitor report at paragraph 50 above).
Furthermore, the applicant argued that if the obligations
to respect the inherent dignity of disabled persons which were set out in the Convention
on the Rights of Persons with Disabilities (see paragraphs 36-40 above) were interpreted to inform the scope of Article 3 of the Convention, there
was a real risk that he would face inhuman or degrading treatment upon return
to Afghanistan. He submitted that the Afghan Government were unable
to ensure access to services for the disabled and that a seminar in which UNHCR
had participated had recommended that persons with physically disabilities who
lacked family members were one class of person who should be eligible for
protection outside the scope of the 1951 Refugee Convention (see paragraph 51 above). Additionally, he argued that UNHCR had confirmed in their December 2010
UNHCR Guidelines that Afghans would not be able to lead a life without undue
hardship in areas without social support or family networks (see paragraph 44 above).
Finally, the applicant
argued that the Secretary of State’s failure to wait for a medical report about
the applicant’s injuries when making the first instance decision on the
applicant’s asylum claim in September 2010 (see paragraph 13 above), amounted to a breach of the obligation under Article 3 to conduct a
rigorous scrutiny of an individual’s claim that his deportation to a third
country would expose that individual to treatment prohibited by Article 3 (see,
mutatis mutandis, R.C. v. Sweden, no. 41827/07, 9
March 2010 and Jabari v. Turkey, no. 40035/98, § 39, ECHR
2000-VIII).
(b) The Government’s submissions
The Government argued that the applicant had not
provided any evidence to support his assertion that, by reason of his
disabilities, there were substantial grounds to believe that there was a real
risk that he would be subjected to treatment contrary to Article 3 in the event
of his return to Afghanistan.
In that regard, they contended that there was no
support to be found in any of the country guidance cases (see paragraphs 27-32 above) or the most recent background evidence from UNHCR and UNAMA (see paragraphs
41-45 above) to suggest that disabled persons were at an enhanced risk of ill-treatment
from indiscriminate violence.
They further argued that, whilst in the country
guidance case of GS (see paragraphs 28-29 above) the AIT had
speculatively contemplated the possibility that there might be a sufficient
threat to disabled persons to engage the provisions of the Qualification
Direction (see paragraphs 33-34 above), there was in reality no support for the
suggestion that disabled persons were more likely to be killed or wounded by a
suicide bomber if they were less able than others to run away from such an
attacker. Furthermore, they submitted that there was no evidence that snipers
were targeting civilians; that disabled person were less likely to be able to
evade such attacks; or that disabled persons were being killed by reason of any
relative inability to avoid the effects of violence.
In response to the applicant’s claim (see
paragraph 57 above) that the conditions that he would face in Afghanistan were analogous to those set out in M.S.S v. Belgium and Greece, cited above, the
Government argued that the case had no relevance to the present application.
They asserted that, critical to the Court’s conclusions in M.S.S. had
been the failure of the Greek authorities to make available the required
conditions for the reception of an asylum seeker. The Court’s findings had been
based on the positive obligations (derived from the European Reception
Directive and their own legislation) of the Greek authorities to provide
accommodation and decent material conditions to impoverished asylum seekers
and, in that regard, the Court had attached considerable importance to the
applicant’s status as an asylum seeker and, as such, a member of a particularly
underprivileged and vulnerable population group in need of special protection. To
the contrary, the Government argued that, so far as the applicant relied upon
the general provision made for persons with disabilities in Afghanistan and the difficulties faced by those without family support there, the applicable
standard was analogous to that applied in N. v. the United Kingdom,
cited above. They therefore argued that, where the feared consequences of
return were as a result of claimed deficiencies in health and social care, very
exceptional circumstances would need to be established.
The Government refuted the applicant’s
submission (see paragraph 55 above) that the Immigration Judge had accepted that
the applicant had no contact with his family members in Afghanistan. They noted that the Immigration Judge had explicitly accepted that the applicant was an
Afghan national who had come from Nangarhar province and had spent the early
years of his life as a farmer; that he was single; and that he had suffered
severe injuries. However, the Immigration Judge had stated that he could not be
satisfied as to any other details of the applicant’s case (see paragraph 17 above) and whilst the Government were prepared to accept that both of the
applicant’s parents were now deceased, they were not prepared to accept that he
was not in contact with his remaining family members in Afghanistan. In that
regard, the Government noted that the applicant had failed to submit any
evidence to support that claim. In any event, there was no reason why he could
not make contact with his sisters upon his return to Afghanistan.
The Government reiterated the Immigration Judge’s
findings (see paragraphs 19-20 above) that there was no reason why the applicant
would not continue to receive the assistance in Afghanistan that he had
apparently received for three to four years there after he had incurred his injuries
and before he had travelled to the United Kingdom. Furthermore, in view of the
numbers of disabled people in Afghanistan and the lack of supporting evidence
demonstrating that those people were living in a state of extreme degrading or
inhuman conditions by virtue of government inaction, they argued that there
remained no substantial grounds to believe that the applicant would be at real
risk of treatment contrary to Article 3 of the Convention, particularly in
light of the fact that the applicant had family in Afghanistan.
Finally, in response to the applicant’s claims
regarding the consideration of his asylum claim in the absence of a medical
report on his injuries (see paragraph 61 above), the Government pointed out that
no medical report had ever been produced by the applicant at any stage
throughout the proceedings whether on appeal before the First-tier Tribunal or in
the course of the present application before the Court. The Government further
noted that the claimed relevance of such a medical report was to establish
whether or not the applicant’s injuries were consistent with his account of how
he had received them and that, in any event, the Immigration Judge at the
First-tier Tribunal had accepted the applicant’s claims in that regard without
a medical report. The Government therefore argued that the applicant had failed
to explain what further relevance a medical report might have had to the
applicant’s claims.
2. The
Court’s assessment
(a) General principles regarding Article 3 and
expulsion
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, Collins and Akasiebie v. Sweden (dec.), no. 23944/05,
8 March 2007 and R.C. v. Sweden, no. 41827/07, 9 March 2010).
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, 11 January 2007).
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, and Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 218
and § 248, 28 June 2011).
(b) The Court’s case-law in respect of Article 3 and
humanitarian conditions
In Salah Sheekh v. the Netherlands, cited
above, the Court held that socio-economic and humanitarian conditions in a
country of return did not necessarily have a bearing, and certainly not a
decisive bearing, on the question of whether the persons concerned would face a
real risk of ill-treatment within the meaning of Article 3 in those areas
(§ 141).
However, in N. v. the United Kingdom,
cited above, the Court held that although the Convention was essentially
directed at the protection of civil and political rights, the fundamental
importance of Article 3 meant that it was necessary for the Court to retain a
degree of flexibility to prevent expulsion in very exceptional cases. Noting that
Article 3 did not place an obligation on Contracting States to alleviate
disparities in the availability of medical treatment in different States
through the provision of free and unlimited health care to all aliens without a
right to stay within their jurisdictions, the Court nevertheless held that
humanitarian conditions would give rise to a breach of Article 3 of the
Convention in very exceptional cases where the humanitarian grounds against
removal were compelling (§ 42).
In M.S.S. v. Belgium and Greece, cited
above, the Court stated that it had not
excluded the possibility that the responsibility of the State under Article 3
might be engaged in respect of treatment where an applicant, who was wholly
dependent on State support, found himself faced with official indifference in a
situation of serious deprivation or want incompatible with human dignity (§
253). In that case, the applicant, an asylum seeker, and as such “a member of a
particularly underprivileged and vulnerable population group in need of special
protection” had spent months living in a state of the most extreme poverty,
unable to cater for his most basic needs: food, hygiene and a place to live.
Added to that, the Court noted the applicant’s ever-present fear of being
attacked and robbed and the total lack of any likelihood of his situation
improving (§ 254). It held that the conditions in which the applicant was
living reached the Article 3 threshold and found Greece to be responsible for
the breach of that Article due to the inaction of the Greek authorities despite
their positive obligations under both the European Reception Directive and
domestic legislation regarding the provision of accommodation and decent
material conditions to asylum seekers (§ 264). The Court also found Belgium to
be in breach of Article 3 because, inter alia, it had transferred the
applicant to Greece and thus knowingly exposed him to living conditions which
amounted to degrading treatment (§ 367).
In Sufi and Elmi v. the United Kingdom,
cited above, the Court, in considering, inter
alia, whether or not the applicants would be at risk of ill-treatment
on account of the dire humanitarian conditions in refugee camps in southern and
central Somalia, applied the test adopted in M.S.S, which required it to
have regard to an applicant’s ability to cater for his most basic needs, such
as food, hygiene and shelter, his vulnerability to ill-treatment and the
prospect of his situation improving within a reasonable time-frame (§§
282-283). In coming to that decision, the Court had regard to the fact that the humanitarian crisis in Somalia was
predominately due to the direct and indirect actions of the parties of the
conflict; noted that all of the evidence indicated that the parties to
the conflict had employed indiscriminate methods of warfare in densely
populated urban areas with no regard to the safety of the civilian population; and
considered that the crisis had been greatly exacerbated by al-Shabaab’s refusal
to permit international aid agencies to operate in the areas under its control,
despite the fact that between a third and a half of all Somalis were living in
a situation of serious deprivation.
(c) Application to the facts of the case
The Court observes at the outset that, although
the applicant applied for, and was refused, asylum in the United Kingdom, he has
not complained before the Court that his removal to Afghanistan would put him
at risk of deliberate ill-treatment from any party, either on account of his
past activities with Hizb-i-Islami or for any other reason.
The Court further 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. Indeed, the
applicant did not dispute the findings of the AIT’s previous country guidance
determination GS (set out at paragraphs 28-29 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.
Instead the applicant alleged that he would be
at risk in Afghanistan on two grounds linked to his disabilities. First, he
asserted that he would be particularly vulnerable to violence and at increased
risk of further injury or death in the ongoing armed conflict in Afghanistan. Second, he contended that, due to his lack of family support in Afghanistan, he would face living conditions and discrimination there which would breach
Article 3 of the Convention.
Before examining these grounds, it is necessary
both to address the applicant’s complaints regarding the domestic authorities’
failure to wait for a medical report (see paragraph 61 above) and to clarify the factual basis for his complaint.
First, in respect of his complaint that the
domestic authorities failed to await a medical report, the Court is unable to
find that, in the circumstances of the present case, such a failure
demonstrates a breach of Article 3 of the Convention. In that regard, besides
the applicant’s failure to have ever submitted a medical report in any event,
the Court notes that, during the domestic proceedings, the First-tier Tribunal
accepted both the extent of the applicant’s injuries and the manner in which
the applicant claimed that they had been caused (see paragraph 17 above). Thus, a medical report was not required in his case for the domestic
authorities to have complied with their duty to ascertain
all relevant facts in the applicant’s case (see R.C. v. Sweden, no. 41827/07, § 53, 9 March 2010). Second, in respect of the
facts of the applicant’s claim, the Court notes that it is not disputed that
the applicant is disabled and that his lower right leg and penis have been
amputated and that his left leg and right hand have been seriously injured. Furthermore,
the parties agreed that the applicant is a single man of Pashtun ethnicity,
that both of his parents are deceased, that he had two sisters in Afghanistan and that he spent the early years of his life as a farmer in Nangarhar
province.
However, the parties
disputed whether any support would be available to the applicant in Afghanistan. The Government maintained that the applicant’s claim not to have any contact
with his sisters in Afghanistan had been implicitly rejected by the Immigration
Judge and that he had failed to submit any evidence to support that claim. In
any event, he had not provided any reason why he could not make contact with
his sisters upon his return to Afghanistan. By contrast, the applicant did not
accept that this part of his claim had been rejected by the Immigration Judge. He
continued to claim, as he had done the domestic proceedings, that there was no one
available to care for him in Afghanistan and that, although he had two sisters
in the country, they were both married and living with their own families. In
any event, he no longer had any contact with either of them.
The Court considers it unnecessary to determine what the
Immigration Judge’s findings in respect of the applicant’s sisters were and, in
particular, whether or not the Immigration Judge implicitly rejected the
applicant’s assertions in this regard. The fact is that, neither before the
national authorities nor before the Court, has the applicant given any reason why,
if he is returned to Afghanistan, he would not be able to make contact with
them and seek their support.
The Court will therefore
examine each of the applicant’s grounds of complaint on the basis that he will
be returning, as a disabled man with an amputated lower right leg and a false
limb, to Afghanistan, where members of his family continue to reside.
i. Enhanced risk of violence
In relation to the applicant’s first ground that
he would be at greater risk of violence in Afghanistan due to his disability, the
Court notes that the applicant has relied significantly upon the brief comments
made by the AIT in GS (set out at paragraphs 28-29 above). In that case, the AIT, when explaining that there may be categories of people who may be able
to establish an enhanced risk of indiscriminate violence in Afghanistan, gave as possible examples both those who would be perceived to be “collaborators” and disabled
persons. However, the Court does not agree that the AIT’s comments alone can give
substantive support to the applicant’s claim. Indeed, the AIT clarified in the
same paragraph of that determination that they were unable to give a list of risk
categories or to state that any particular occupation or status would put a
person into such a category in view of the “paucity of the evidence” before
them. To the contrary, the AIT merely recorded that there “may be such
categories” dependent upon the evidence available. The AIT emphasised that
their comments should not be taken to indicate that the disabled were members
of enhanced risk groups, without proof to that effect
The Court considers it to be significant that
the applicant has failed to adduce any additional substantive evidence to
support his claim that disabled persons are per se at greater risk of violence,
as opposed to other difficulties such as discrimination and poor humanitarian
conditions, than the general Afghan population. The evidence from, inter
alia, UNHCR, UNAMA, the UNCESCR, the AIHRC, and the United States of
America State Department (see paragraphs 41-49 above) makes no reference to
disabled persons being at greater risk of violence, ill-treatment or attacks in
Afghanistan.
In the absence of any contrary evidence, the
Court therefore concludes that this claim has to be considered to be to a large
extent speculative and does not accept that the applicant has demonstrated that,
as a result of his disabilities, he would be subjected to an enhanced risk of
indiscriminate violence in Afghanistan such as to engage Article 3 of the
Convention.
ii. Living conditions
The applicant argued that the circumstances that
he will face in Afghanistan will amount to a breach of Article 3 of the
Convention as a result of the poor provision for and ignorance surrounding persons
with disabilities there. He argued that his case could be distinguished from N. v. the
United Kingdom, cited above, because it did not involve a naturally
occurring illness or merely the consequences of the lack of sufficient
treatment available in Afghanistan. He argued that the Court should consider
his case in light of M.S.S. v. Belgium and Greece, cited above, and his
inability to cater for his basic needs to Afghanistan.
The Court finds that the principles of N. v.
the United Kingdom should apply to the circumstances of the present case
for the following reasons. First, the Court recalls that N. concerned
the removal of an HIV-positive applicant to Uganda, where her lifespan
was likely to be reduced on account of the fact that the treatment facilities
there were inferior to those available in the United Kingdom. In reaching its
conclusions, the Court noted that the alleged future harm would emanate not
from the intentional acts or omission of public authorities or non-State bodies
but from a naturally occurring illness and the lack of sufficient resources to
deal with it in the receiving country. The Court also stated that Article 3 did
not place an obligation on the Contracting State to alleviate disparities in
the availability of medical treatment between the Contracting State and the
country of origin through the provision of free and unlimited health care to
all aliens without a right to stay within its jurisdiction (ibid, § 44).
The Court acknowledges that, in the present case, the applicant’s disability
cannot be considered to be a “naturally” occurring illness and does not require
medical treatment. Nevertheless, it is considered to be significant that in
both scenarios the future harm would emanate from a lack of sufficient
resources to provide either medical treatment or welfare provision rather than
the intentional acts or omissions of the authorities of the receiving State.
Second, the Court considers that the present
case can be distinguished from M.S.S. In that case, a fellow Contracting State, Greece, was found to be in violation of Article 3 of the Convention
through its own inaction and its failure to comply with its positive
obligations under both European and domestic legislation to provide reception
facilities to asylum seekers. Central to the Court’s conclusion was its finding
that the destitution of which the applicant in that case complained was linked
to his status as an asylum seeker and to the fact that his asylum application had
not yet been examined by the Greek authorities. The Court was also of the
opinion that, had they examined the applicant’s asylum request promptly, the
Greek authorities could have substantially alleviated his suffering. (see paragraph 262
of the judgment). By contrast, the present application concerns the living
conditions and humanitarian situation in Afghanistan, a non-Contracting State, which has no such similar positive obligations under European legislation and cannot be
held accountable under the Convention for failures to provide adequate welfare
assistance to persons with disabilities. In that regard, it is recalled that
the Convention does not purport to be a means of requiring Contracting States
to impose Convention standards on other States (see, as a recent authority, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, 7 July 2011).
Third, although in Sufi and Elmi v. the
United Kingdom, cited above, the Court followed the approach set out
in M.S.S., this was because of the exceptional and extreme
conditions prevailing in south and central Somalia. In particular, there was
clear and extensive evidence before the Court that the humanitarian crisis in Somalia was predominately due to the direct and indirect actions of all parties to the
conflict who had employed indiscriminate methods of warfare and had refused to
permit international aid agencies to operate ( paragraph 282 of the Sufi and
Elmi judgment). On the current evidence available, the Court is not able to
conclude that the situation in Afghanistan, albeit very serious as a result of ongoing
conflict, is comparable to that of south and central Somalia. First, unlike Somalia, which has been without a functioning central Government since 1991, Afghanistan has a functioning central Government and functioning infrastructures remain in place.
Second, Afghanistan, and in particular Kabul to where the applicant will be
returned, remains under Government control, unlike the majority of south and
central Somalia, which, since 2008, has been under the control of Islamic
insurgents. Third, although UNHCR has observed that the humanitarian space in Afghanistan is declining in some areas as a result of the continuing instability (see paragraph 43 above), there remains a significant presence of international aid agencies in Afghanistan, unlike in Somalia where international aid agencies were refused permission to operate
in multiple areas. Fourth, even though the difficulties and inadequacies in the
provision for persons with disabilities in Afghanistan cannot be understated,
it cannot be said that such problems are as a result of the deliberate actions
or omissions of the Afghan authorities rather than attributable to a lack of
resources. Indeed, the evidence suggests that the Afghan authorities are
taking, albeit small, steps to improve provision for disabled persons by, for
example, the National Disability Action Plan 2008-2011 (see paragraph 48 above), and the provision of financial support by the Ministry of Labour, Social Affairs, Martyrs, and the
Disabled to 80,000 disabled persons in Afghanistan (see paragraph 49 above). The Court does not accept that the report of the Austrian Centre for
Country of Origin and Asylum Research and Documentation (see above at paragraph
51) lends support to the applicant’s claim because that report was published in
2007 and the later December 2010 UNHCR Guidelines make no similar recommendations in relation to the return of disabled persons to
Afghanistan.
The Court therefore considers that, in the
circumstances of the present case where the problems facing the applicant would
be largely as a result of inadequate social provisions through a want of
resources, the approach adopted by the Court in N. v. the United Kingdom,
cited above, is more appropriate. The Court will therefore need to determine whether
or not the applicant’s case is a very exceptional one where the humanitarian
grounds against removal are compelling.
Whilst full account must be taken of the significant
hardship facing persons with disabilities in Afghanistan, including
discrimination, a lack of employment opportunities and a scarcity of services
(see paragraphs 45-51 above), it is of some relevance that the present
applicant has family members who continue to live in Afghanistan. The applicant
himself acknowledged in his submissions to the Court (see paragraph 57 above) that the difficulties facing persons with disabilities in Afghanistan might
not engage Article 3 if they had family support available to them. For the
reasons set out above at paragraphs 83-84 the Court is unable to conclude that
the applicant would not be able to contact his family members upon return to
Afghanistan or that they would not provide him with some level of support or
assistance upon arrival. In this regard, the Court is not therefore able to
accept the applicant’s claim that he will be returning to Afghanistan and left
destitute by reason of a total lack of support in that country.
It is, in any event, of greater importance to the Court’s
consideration of the applicant’s Article 3 complaint that the applicant
remained in Afghanistan after he received his injuries in 2006 for four years until
2010 and was supported throughout that period, during which he also received
medical treatment for his injuries. On the evidence before it, the Court is
unable to conclude that the applicant’s disabilities have worsened since his
departure from Afghanistan. Nor, on the general information before the Court,
can it be found that the circumstances that would confront the applicant on
return to Afghanistan would, to a determinative degree, be worse than those
which he faced during that four-year period. Likewise, although the quality of
the applicant’s life, already severely diminished by his disabled condition,
will undoubtedly be negatively affected if he is removed from the United
Kingdom to Afghanistan, that fact alone cannot be decisive (see N. v. the
United Kingdom, cited above, §§ 50 and 51).
Finally, in addressing the applicant’s submission
that, in circumstances such as those in the present case, the United Nations
Convention of the Rights of Persons with Disabilities has to be read as informing
the scope to be given to Article 3, the Court is mindful of the principle that
the Convention does not apply in a vacuum but must be
interpreted in harmony with the general principles of international law (see,
mutatis mutandis, inter alia, Neulinger and Shuruk v.
Switzerland [GC], no. 41615/07, §§ 131-132, ECHR 2010). Nevertheless, for
the foregoing reasons, even interpreting Article 3 of the Convention in harmony
with the United Nations Convention of the Rights of Persons with Disabilities, the
Court is unable to conclude that the high threshold set by Article 3 has been
met in the applicant’s case.
In conclusion, the applicant’s case does not
disclose very exceptional circumstances as referred to in the applicable
case-law (N. v. the United Kingdom, cited above). Accordingly, the
implementation of the decision to remove him to Afghanistan would not give rise
to a violation of Article 3 of the Convention.
II. RULE 39 OF THE RULES OF
COURT
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.
The Court considers it appropriate that the
indication made to the Government under Rule 39 of
the Rules of Court (see above § 4) should 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
1. Declares the application admissible unanimously;
2. Holds by four votes to three that there
would be no violation of Article 3 of the Convention in the event of the
applicant’s removal to Afghanistan; and
3. Decides unanimously 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 29 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ineta
Ziemele
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Ziemele,
David Thór Björgvinsson and De Gaetano is annexed to this judgment.
I.Z.
F.A.
JOINT DISSENTING OPINION OF JUDGES ZIEMELE, DAVID THÓR
BJÖRGVINSSON AND DE GAETANO
1. We regret that we are unable to join the
majority under operative head no. 2 of the judgment in this case. While it is
true that adverse credibility findings were made by the Secretary of State (§
10) and by the First-tier Tribunal (§ 17) with regard to the applicant’s and
his father’s alleged links with Hizb-i-Islami, the central and critical issue
in this case was the applicant’s severe disability (amputated lower right leg
and penis, and serious injury to his left leg and right hand) and the
consequences that would follow from that disability in the event of his
deportation to Afghanistan. This was, in reality, the crux of his application
for asylum, as well as of his application before this Court (§§ 56-60, and 78-80).
Neither these injuries nor their severity has ever been challenged by the
domestic authorities, unlike the other side issue relating to his allegation
that in Afghanistan he effectively had no family or relatives to return to.
2. In the majority judgment some weight is given to
the fact that the applicant has two sisters in Afghanistan, who are both
married (§§ 83-84 and 93). They are repeatedly referred to as family members
who he may, as is implied, be able to contact upon return to that country and
from whom he may be able to get some level of support or assistance. In this
regard we point out in the first place that it is somewhat contradictory to
suggest as relevant possible limited “familial ties” with his married sisters
in Afghanistan, since such ties would not be accepted as relevant “familial
ties” under Article 8 of the Convention had his sisters been living in the United Kingdom. In addition, the implication that he may be able to seek help and support
from them is highly speculative as there is nothing in the case file indicating
that they would be able or willing to provide him with any relevant help and
support that might alleviate in a meaningful way the obvious severe hardship
the applicant, as a very seriously disabled person, would face upon return to
Afghanistan.
3. Nevertheless, the central question is whether
the nature of the applicant’s disability coupled with the concrete situation
back in Afghanistan engages Article 3. In this respect the instant case does
not fall, strictly speaking, within the line of case-law represented by the
judgment in N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008. Nor
does it fall exclusively within the framework of the Salah Sheekh v. the
Netherlands, no. 1948/04, 11 January 2007 and Sufi and Elmi v. the
United Kingdom, nos. 8319/07 and 11449/07, 28 June 2011 line of case-law.
The facts of the instant case fall somewhere in between these lines of the
Court’s case-law and thus raise a new issue before the Court.
4. In our view, there is no doubt that a disability
per se, similar to a serious illness per se, would not
automatically raise an issue under, or engage, Article 3. Nevertheless, the
Court must look into the character of the disability within the context of the
specific facts of a given case. It also needs to assess, given the general
situation in the country of origin, how the person with a specific kind of
disability might or might not re-settle (see, mutatis mutandis, Salah
Sheekh, cited above, § 141).
5. In this regard, we note that the UNHCR’s
Eligibility Guidelines for Assessing the International Protection Needs of
Afghan Asylum-Seekers (December 2007) highlighted the fact that there may be
persons who will not qualify for asylum but “for whom UNHCR urges States, for
humanitarian reasons, to exercise caution when considering their forced
return”. Among the “vulnerable”, UNHCR lists persons with medical illness or
disability (physical or mental). It specifies that: “Ill or disabled persons
who cannot work or live on their own in Afghanistan should not return unless
they have effective family and/or community support. ... [T]here are Afghans
for which UNHCR strongly advises that, at least temporarily, solutions be
identified in countries of asylum and that exemptions to obligations to return
are made on humanitarian grounds” (see pp. 78-79 of the Document). The 2009
Eligibility Guidelines continue to note that: “The traditional family and
community structures of the Afghan social and tribal system constitute the main
protection and coping mechanism for returning Afghan refugees... Those who may
face particular difficulties upon return include ... physically and mentally
disabled persons...” (see p. 61). The 2009 UK Border Agency Report on Afghanistan in fact refers back to the UNHCR’s 2007 report inviting States to seriously consider the
need to return a person with disability to Afghanistan. The 2010 Eligibility
Guidelines (§ 41), while they do not specifically discuss difficulties faced by
persons with disabilities, note a general worsening of the security situation
and the increase of generalised violence in parts of Afghanistan and emphasise
the importance of family and community structures for personal safety (§ 44).
We also note that these Guidelines do not suggest a different approach to
persons with disabilities since they do not seem to address the issue.
6. In a recent study provided for UNHCR and
entitled “Vulnerable or invisible? Asylum seekers with disabilities in Europe” (2010) it is noted that: “The specific barriers that persons with disabilities face
to accessing protection and assistance when seeking asylum are yet to be
recognized. With the exception of provisions for access to social security (Article 24(1)(b)),
the 1951 Refugee Convention and its travaux préparatoires (UN Ad
Hoc Committee 1950) provide little guidance on a disability-sensitive
interpretation of refugee law and there are currently no official guidelines on
this matter” (see Research Paper No. 194). We would submit that in light of the
Convention on the Rights of Persons with Disabilities, which the United Kingdom
ratified in 2009 (§ 36), the assessment of whether return to Afghanistan of the
applicant in the instant case complies with Article 3 of the Convention
required a disability-sensitive interpretation of the facts and of the
application of the Court’s case-law to those facts.
To sum up, the applicant’s submission was not
that all persons with disabilities should not be returned to Afghanistan. His claim was that Article 3 would, if returned, be engaged in his specific case in
view of the nature of his disability and the lack of family or social
infrastructure for him in Afghanistan (§ 57). We cannot agree that the Immigration
Judge examined properly this claim (§§ 19 and 20). The Judge drew crucial
inferences from the applicant’s prior stay in Afghanistan and his ability to
make a journey to the United Kingdom. It is not clear why these negative
inferences were drawn since there can also be many other different explanations
as to the applicant’s initial stay in Afghanistan (following the injuries) and
his decision to leave the country. These could be linked to his precarious
state of health. In our view, and precisely because the applicant’s disability
and the facts surrounding it were not examined in sufficient detail, we are
left to speculate on the questions that should have been properly dealt with at
a national level taking into consideration the need to adopt a disability-sensitive
approach in such cases.
