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URL: http://www.bailii.org/eu/cases/ECHR/2010/657.html
Cite as: [2010] ECHR 657
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5 May 2010
FOURTH SECTION
Application no.
61852/09
by Jawad TAWAKOLI
against the United Kingdom
lodged
on 23 November 2009
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Jawad Tawakoli, is an Afghan national who was born in 1985 and lives in Bristol. He is represented before the Court by Bindmans LLP, a firm of solicitors practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom on 19 December 2001, when he was sixteen years of age. He claimed asylum upon arrival and his asylum claim was refused on 8 May 2002; however, he was granted exceptional leave to remain until 19 August 2003, the day before his eighteenth birthday.
The basis for his asylum claim was that he was a Shia Muslim and of Hazara ethnicity, and that his father and uncle had been involved with Hizb-e-Wahdat. Both had disappeared and the applicant's home had been destroyed when the Taliban invaded in 1998. The applicant himself had been arrested by the Taliban in December 2000 and detained for a month, during which time he was tortured and interrogated about his father and uncle. When he was released, he could not find any of his family and so decided to leave the country.
The Secretary of State rejected this asylum claim on the basis that the applicant had been targeted by the Taliban as a result of his father and uncle's political activity and not his ethnicity; now the Taliban were no longer to be feared and the applicant would not be at risk solely on the basis of his ethnicity. The Secretary of State did not consider Hazaras to be a persecuted group, as reflected by the fact that they were represented in the new transitional administration. The fact that there was currently a situation akin to civil war in Afghanistan was not grounds for a grant of asylum.
The applicant appealed against the refusal of asylum and his appeal was dismissed by an Adjudicator on 18 September 2002. The Adjudicator accepted that the applicant's account was true, since its credibility had not been questioned by the Secretary of State and since it was consistent with objective country evidence. However, he did not accept that the applicant would be at risk in Afghanistan, given the fundamental changes since his departure from the country. The Taliban had been driven out, and Hazaras were not now at risk of persecution given that they were represented in the interim administration.
Prior to the expiry of his leave to remain, the applicant made an application for further leave. This application was refused on 15 September 2004. The applicant appealed against this decision, solely on Article 8 grounds, and his appeal was granted by the then Asylum and Immigration Tribunal on 31 January 2005. However, upon the Secretary of State's application, reconsideration of the Tribunal's decision was ordered on the basis that the Government's need to maintain effective immigration control had not been taken into account and the balancing exercise conducted by the Tribunal had therefore been inadequate.
The reconsideration hearing was held on 24 April 2008. This too was based on Article 8 alone; an application by the applicant's representatives to raise his asylum claim and arguments under Articles 2 and 3 was refused on the grounds that reconsideration had been ordered with respect only to Article 8. The applicant also claimed, however, that he had been a victim of delay and abuse of power by the Secretary of State. He argued that until April 2002 there had been a policy in place to grant exceptional leave to remain to credible asylum claimants from Afghanistan, which in a majority of cases would be succeeded by a grant of indefinite leave to remain. The applicant contended that he was disadvantaged by the fact that his asylum claim had not been decided until May 2002, and that his claim should have been dealt with in line with this policy. As a minor, the applicant argued, the treatment of his asylum claim should have been at least as favourable, if not more so, than that of an adult asylum seeker in a similar position.
The Tribunal accepted that the applicant had established a private life in the United Kingdom. He had become fluent in English, undertaken education and training and secured employment as a chef. He had also made several close friendships and had a strong and supportive relationship with his social worker. The Tribunal also noted that the applicant's younger brother, who had been seven years old when the applicant left Afghanistan, had arrived in the United Kingdom in January 2008 and had a pending asylum claim as an unaccompanied minor. He could not live with the applicant and was therefore in foster care because of the applicant's uncertain status, but the brothers saw each other regularly and hoped to live together in the future. It was also accepted that the applicant did not have family in Afghanistan any longer, his father being deceased and his mother and sister being last heard of in a refugee camp in Turkmenistan.
The Tribunal considered, however, that the applicant could re-establish himself in Afghanistan, with the help of the skills and experience he had gained in the United Kingdom. His removal would not constitute a disproportionate interference with his Article 8 rights. The issue of the applicant's family life with his brother was not expressly dealt with. It was not accepted that the applicant would be at risk in Kabul, where despite widespread unemployment and an absence of family or other support for the applicant, there were sufficient necessities to sustain life.
As to the applicant's arguments with regard to delay, the Tribunal found that the applicant did not fit within the terms of the policy on which he sought to rely. He had not been able to demonstrate that there had been any delay at all in dealing with his asylum claim, let alone a delay so obvious and conspicuous that it amounted to unfairness and an abuse of power.
The applicant then made further representations on 14 August 2008, based on the deterioration of the country situation in Afghanistan. Accompanying the representations was an expert report dealing with the risk to the applicant should he be returned. The expert, Peter Marsden, stated that the Taliban had a significant presence in the applicant's home province and all around Kabul; that the applicant as a young male without family or contacts in Afghanistan would be unable to secure accommodation or employment; that his destitution would render him vulnerable to abuse, exploitation and forcible recruitment to militias; and that, as a Hazara and a Shia Muslim, he would be at risk from other groups of arbitrary violence and unlawful killing.
The applicant's representations were rejected as not amounting to a fresh asylum claim on 18 May 2009. The Secretary of State did not consider that, as a civilian in Afghanistan, the applicant would face a serious risk to his life or person. It had previously been found that he had not been targeted in the past because of his ethnicity, and it was not believed now that simply being a Hazara would result in the applicant being persecuted. Hazaras were represented in the government, and many had returned from exile since the fall of the Taliban. The applicant would be able to relocate to avoid any localised problems, and to seek protection from the authorities in Afghanistan.
The applicant sought judicial review of the decision not to treat his submissions as a fresh asylum claim. With his application, he submitted an addendum report from Peter Marsden, which stated that an individual in Kabul without family or other support would be unable to secure an income and would therefore have to resort to extreme measures such as begging or prostitution; that the Taliban appeared to be closing in on Kabul and that the threat they posed could therefore be reasonably supposed to be on the increase; and that the applicant would be at increased risk of violence from the Taliban as a result of his Hazara ethnicity.
Permission to apply for judicial review was refused on 5 November 2009. The application was stated to be totally without merit and its renewal was deemed not to constitute a bar to removal. The applicant was not however removed before his renewed application was refused on 23 November 2009.
B. Relevant domestic law and practice
1. Fresh asylum and human rights claims
Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.”
2. Country Guidance cases of PM and Others and RQ
In the case of PM and Others (Kabul – Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089, the Asylum and Immigration Tribunal found that: i) those returned from the United Kingdom will not, without more, be at real risk at the airport or after arrival in Kabul; ii) those returned from the United Kingdom are not at real risk, without more, of being suspected by the authorities as insurgents; iii) the past of an individual seeking accommodation or work in Kabul, or elsewhere, may be discovered and mentioned to the authorities. Similarly, the authorities may become aware of someone newly arrived in an area. That may result in a person being detained for questioning but there is no satisfactory evidence such questioning gives rise to a real risk of serious harm; and iv) subject to an individual's personal circumstances, it is unlikely to be unduly harsh (or unreasonable) to expect them to relocate to Kabul if they have established a real risk of serious harm in (and restricted to) areas outside Kabul.
In the case of RQ (Afghan National Army – Hizb-i-Islami – risk) Afghanistan CG [2008] UKAIT 00013, in which Peter Marsden provided expert evidence, the Tribunal found that:
“101. However, where an individual was 'wanted' by the Taliban or Hizb-i-Islami, then the evidence was that the situation in Afghanistan remains sufficiently lawless that if he were found, there would be nothing to prevent them dealing with him as they thought fit. A person who was wanted in his home area for a specific reason would be able to show a real risk of persecution (or treatment entitling him to humanitarian protection, as appropriate) in his home area.
102. The next question was whether such a person could relocate away from the risk and whether it would be unduly harsh to expect him or her to do so. Where there was an individual risk, it would be a question of fact whether internal relocation was an option. In general, for a person with no particular profile, the Tribunal had held that there was no risk in Kabul engaging the international protection Conventions (M v Secretary of State for the Home Department (Afghanistan) [2004] UKIAT 00035).
(...)
108. Evidence that the appellant would be personally pursued remains necessary on the principles set out in AF. Where such a real, individual risk is established, the evidence remains that the authorities in Kabul are not capable of individual protection to the Horvath standard and that the ISAF is not tasked with individual protection but rather with generalised peacekeeping within Kabul. It would always be a question of fact whether relocation to a city (in this case Kabul) is reasonable or is unduly harsh, both in relation to the conditions in the city of relocation and the individual history and aptitudes of the particular appellant.
COMPLAINT
The applicant complains that his removal to Afghanistan would expose him to the risk of inhuman or degrading treatment in violation of Article 3 of the Convention. He further claims that such removal would compromise his physical and moral integrity and violate his right to respect for his private life under Article 8 of the Convention. The applicant additionally submits that he did not receive a fair hearing in his proceedings for judicial review and that he had no effective remedy in respect of the interference with his Convention rights, in breach of Articles 6 § 1 and Article 13 of the Convention. Finally, he complains of a violation of Article 14 of the Convention in that he did not receive the benefit of a domestic policy in respect of Afghanistan which was applied to adults in the same circumstances.
QUESTIONS TO THE PARTIES