19 October 2009

FOURTH SECTION
Application no. 48839/09
by Javed HABIBI
against the United Kingdom
lodged on 10 September 2009

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Javed Habibi, is an Afghan national who was born in 1991 and is currently detained as Brook House Immigration Removal Centre.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 December 2003, the applicant’s older brother arrived in the United Kingdom and made an application for asylum which was refused by the Secretary of State on 19 December 2003. On 11 May 2004, his asylum appeal was allowed by the Immigration Appellate Authority (“IAA”). The IAA accepted that his father had been a prominent, high ranking member of the Communist People’s Democratic Party of Afghanistan (“PDPA”) in touch with its highest officials. It also accepted that his father was “known” by armed factions and was without any existing political party or tribal protection. The IAA thus found that his brother fell “fairly and squarely” within the protection category set out by the Nations High Commissioner for Refugees (“UNHCR”) as a relative of a former PDPA member, and that there were substantial grounds for believing that he would face a real risk of ill-treatment contrary to Article 3 if returned to Afghanistan. His brother was therefore subsequently granted refugee status by the Secretary of State.
The applicant arrived in the United Kingdom on 3 July 2009 and was arrested by the police as an illegal immigrant.
On 6 July 2009, he claimed asylum on the same basis as his brother, relying on their father’s previous position as a high ranking member of the PDPA. He claimed that his father had been a close friend and personal doctor of several prominent politicians, including Dr Najibullah (the President of Afghanistan between 1986 and 1992) and other Government ministers. He claimed that, in 1992 when the communist regime collapsed, his father was forced to flee Afghanistan for the Russian Federation, but nevertheless continues to be politically active in opposition to a number of war lords and people involved in the Afghan Government, including Generals Dostum, Fahim and Sayat. After his father had left the country, his family were forced to move to Khost where they lived for over a decade using different surnames so that they would not be identified. Approximately six years ago, his family moved to Kabul for seven or eight months. During that time, members of the National Security Intelligence attended their home on two or three occasions. On the last occasion, they arrested his uncle who was subsequently detained for a year. They also tried to arrest his brothers. The family therefore moved to stay with another uncle, but whilst there, one of his brothers was shot and killed. The applicant travelled to Pakistan with his mother and brother where he lived for five or six years before coming to the United Kingdom this year via Iran, Greece, Italy and France. He claimed that he came to the United Kingdom because the Taliban in Pakistan were trying to make him fight for them and had detained him for four days, before releasing him after the payment of a bribe.
On an unknown date, the applicant was age assessed by Liverpool Social Services as being between 20 and 25 years of age.
On 4 August 2009, his application for asylum was refused by the Secretary of State, who considered that his account was vague and contradictory, and that it was not plausible that he would not be able to recollect any of the significant details of his life in Khost, his journey to Pakistan or the activities of his father. In particular, it was not accepted that his father was still politically active as it was implausible that he would not be able to recollect some details of his father’s activities given that he had remained in relatively regular contact with him. It was also not considered to be credible that the Afghan authorities or any war lords would be interested in him given, inter alia, the fact that he had not been active himself; the length of time that had passed since his father had left Afghanistan; and the fact that he had lived in Afghanistan without problems for ten years. It was also noted that his father had voluntarily returned on one trip to Afghanistan, undermining his claim that he would be at risk there due to his high profile. His claim that his brother’s death was related to his father’s political activity was considered to be entirely speculative. His account of events in Kabul was rejected because his details were vague and because they contradicted the account that his brother, SH, had given at his appeal hearing in 2004. His credibility was undermined by his failure to claim asylum in Greece, Italy or France. Even taking his claim at its highest, it was considered that he could relocate within Afghanistan to avoid any problems from warlords.
On 14 August 2009, his appeal was dismissed by the Asylum and Immigration Tribunal (“AIT”), which acknowledged that his brother’s asylum appeal had been successful in 2004 because, on the strength of documents and photographs showing his father giving speeches and attending official engagements, the Adjudicator had accepted that his father had occupied a position of prominence and a high ranking position within the PDPA. Nevertheless, the AIT referred to the later AIT country guidance determination of SO and SO (KhaD – members and family) Afghanistan CG [2006] UKAIT 00003, and found that there were differences between the claims of the two brothers, including the fact that the applicant had never been involved in any political activity, whilst his brother had done some activities on behalf of his father which might have drawn attention to him from the authorities. In addition, due to the lack of evidence, the AIT did not accept that their father continued to be politically active or to have a high profile in Afghanistan, as the only evidence of any political activity related to events over 17 years previously, prior to 1992, and politics and personnel in Afghanistan had changed since that time. Even if his father was still politically active, it was not accepted that the Afghan authorities or warlords would have any adverse interest in the applicant, given his lack of political profile and education, his age on leaving Afghanistan, the fact that he was only a small child when his father had been politically active and recent political developments in Afghanistan.
The AIT also made a series of adverse credibility findings against the applicant due to his vagueness upon giving evidence, his failure to claim asylum in safe countries en route to the United Kingdom and the discrepancies between his account and that of his brother including, inter alia, the level of contact that had taken place between the various family members and whether or not one brother had been shot. In particular, it was not accepted that the applicant’s brother would not have mentioned during his own asylum application that one of their brothers had been shot had that ever occurred. The AIT considered that the applicant was using his age as a conventional cover whenever he did not know the answer to a question, but noted that he had been age assessed as between 20 to 25 years of age, and it would therefore have been expected that he would have discussed matters with his family and had some awareness of his father’s political activities.
Additionally, the AIT found that even if he had been arrested and detained by the Taliban in Pakistan, he would not be at risk from the Taliban in Afghanistan because they would not track him down there as he would be of very low level interest to them. He would in any event be able to relocate to Kabul and seek the protection of the Afghan authorities there from the Taliban.
Finally, the AIT did not accept that the level of indiscriminate violence in Afghanistan, but in Kabul particularly, reached a level of real risk to the applicant.
His application for reconsideration was dismissed by a Senior Immigration Judge at the AIT on 19 August 2009 as there was no error of law.

B.	Relevant domestic law and practice
Appeals from decisions of the Secretary of State for the Home Department in asylum, immigration and nationality matters are heard by the AIT. Country guideline determinations of the AIT are to be treated as an authoritative finding on the country guidance issue identified in the determination until expressly superseded or replaced by a later country guideline determination.
In the country guideline determination of SO and SO (KhaD – members and family) Afghanistan CG [2006] UKAIT 00003, the AIT held that, given recent evidence, which included evidence about significant numbers of former officers of Khadimat-e-Atalat-e Dawlati (“KhaD” - the secret service wing of the Communist PDPA regime in Afghanistan until 1992) working in the present Afghanistan Intelligence Service, it could not be said that past service in KhaD sufficed to establish a risk on return. The AIT held that cases had to be considered by weighing up a number of factors, including some personal to the appellant. In this regard it was considered important to bear in mind that past or present personal conflicts were more important than political conflicts. In assessing whether family members of a PDPA and/or a KhaD member would be at risk, it had to be borne in mind that there might be factors reducing or removing risk such as the death of the PDPA/KhaD member, and the amount of time that had elapsed since his death.
COMPLAINTS
The applicant complains that it would expose him to a real risk of being subjected to treatment in breach of Article 3 of the Convention and/or a violation of Article 2 if he were to be returned to Afghanistan.
QUESTION TO THE PARTIES
Would the applicant’s removal to Afghanistan violate Article 2 and/or Article 3 of the Convention?