European Court of Human Rights

13 January 2011

FOURTH SECTION

Application no. 60367/10
by S.H.H.
against the United Kingdom
lodged on 18 October 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Sharif Hazarbuz, is an Afghan national who was born in 1979 and lives in the United Kingdom.

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 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-e-Islami in Nangahar province in eastern Afghanistan. He also claimed that Hizb-e-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 seriously disabled. He also relied on the fact that his right leg and penis had both been amputated; that his left leg and right hand were seriously injured; and that he suffered from depression.

On 17 September 2010, his asylum application was refused by the Secretary of State. First, it was not accepted that the applicant’s father had
ever been involved with Hizb-e-Islami given, inter alia, his lack of knowledge of his father’s role within the organisation; his inconsistent evidence about how he had been made aware of his father’s involvement with Hizb-e-Islami; and his inconsistent and vague account with regards to the circumstances of his father’s death.

Second, it was not accepted that the applicant had ever been a
Hizb-e-Islami commander given, inter alia, the discrepancies in his evidence about both when he had been approached by Hizb-e-Islami after his father’s death and how long he had been involved in Hizb-e-Islami; and his vagueness with regards to his role and the roles of those senior to him in Hizb-e-Islami.

Third, it was not accepted that he would be of any adverse interest to the Afghan authorities upon return given that he had not demonstrated any Hizb-e-Islami involvement; he had remained in hospital for two months after the rocket attack without any problems; and he had returned from hospital to his home village for six months without any problems from the authorities.

Fourth, it was not accepted that he would be at risk from Hizb-e-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, 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-e-Islami.

Fifth, in any event, it was not accepted that he would be at risk from the Afghan authorities due to any Hizb-e-Islami connections given that a number of ex-Hizb-e-Islami members occupied high positions within the 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 Hekmatyar
(Hizb-e-Islami’s leader).

The Secretary of State accepted that the applicant’s leg had been amputated, but did not accept that this could support his claim to be at risk upon return because he himself was uncertain as to who had been responsible for the rocket attack. Further, although it was acknowledged that the medical facilities in Afghanistan were limited and under developed, it was noted that the applicant had previously received hospital care there and it was considered that any further medical care would be available to him upon return. It was therefore not accepted that his case was “very exceptional” or 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 below under domestic law and practice), 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.

On 4 October 2010, the First-tier Tribunal of the Immigration and Asylum Chamber dismissed the applicant’s appeal for substantially the same reasons as the Secretary of State as set out above. The Immigration Judge accepted that the applicant had suffered from severe injuries as a result of an accident which had involved a mortar, rocket or some form of bomb and accepted that the applicant had an amputated lower leg with a false limb together with “the other injuries he has described”.

However, owing to inconsistencies in the applicant’s account which he also found to be implausible in parts, the Immigration Judge did not accept that the applicant had ever been a Hizb-e-Islami commander or that his reasons for leaving Afghanistan were because he had been threatened to become a suicide bomber. Alternatively, the Immigration Judge found that even if the applicant had at some stage been a member of the Hizb-e-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 ceased to be a member of Hizb-e-Islami for a number of years. Relying on the country guidance case of PM and Others (Kabul – Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089 (refer to domestic law and practice set out below), the Immigration Judge considered that there was no reason why he could not return to Afghanistan to resume living either in Nangahar or in Kabul without any fear from the authorities.

In relation to his 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:

“he 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.”

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:

“the 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, the First-tier Tribunal refused permission to appeal because the grounds of appeal, which appeared to have been settled in person, only pleaded to be allowed to remain in the United Kingdom but did not identify any arguable error of law.

On 13 October 2010, the Upper Tribunal refused permission to appeal as no arguable error of law could be found in the Immigration Judge’s determination.

B.  Relevant domestic law and practice

1. Asylum and human rights claims

Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department.

Appeals in asylum, immigration and nationality matters are now heard by the First-tier Tribunal of the Immigration and Asylum Chamber.

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.

2. Country guidance determinations

Country guidance determinations 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 court (either the former Asylum and Immigration Tribunal, “the AIT”, or the current Upper Tribunal of the Asylum and Immigration Chamber) that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.

In the country guidance determination of GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044, the then AIT held that:

“There is not in Afghanistan such a high level of indiscriminate violence that substantial grounds exist 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 article 15(c) of the Qualification Directive.”

In considering the concept of a group of people at enhanced risk of indiscriminate violence, the AIT further commented that:

“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.”

In the country guidance determination of PM and Others
(Kabul – Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089, the then AIT held that there was no satisfactory evidence that a person who had been associated in the past with Hizb-i-Islami would always be regarded as such in Afghanistan.

COMPLAINT

Without citing any Article of the Convention, the applicant complains that he is seriously disabled and that he should be granted asylum or protection in the United Kingdom which falls to be considered substantively under Article 3 of the Convention.

QUESTION TO THE PARTIES

Having particular regard to the applicant’s disabilities, would his removal to Afghanistan violate Article 3 of the Convention?