European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2011/1307.html
Cite as: [2011] ECHR 1307
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FOURTH SECTION
Application no.
44539/11
by Z.B.
against the United
Kingdom
lodged on 21 July 2011
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Z.B., is an Afghan national who was born in 1988 and is detained in West Drayton.
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 2 June 2011 and claimed asylum the following day on the basis of his fear of the Taliban due to his work as an interpreter for United States armed forces (“US forces”) and the ISAF (“the International Security Assistance Force”) for over two years from February 2009 until April 2011. He claimed that he had received threats from the Taliban including a threat to behead him. He claimed that, in October 2010, he had been the interpreter involved in the search and rescue operation of Linda Norgrove, a British aid worker. As a result of that operation, Linda and eight Taliban members were shot and killed. He claimed that he had located Linda Norgrove using an Icam scanner and that the Taliban were aware of his significant role in the operation. This had heightened the Taliban’s adverse interest in him. The applicant eventually fled Afghanistan after seeing armed Taliban outside his house. The applicant additionally claimed that he would not be able to relocate to Kabul for safety because he has relatives who live there who are involved in Hezb i-Islami (“HII”) who will seek to forcibly recruit him into their forces.
On 20 June 2011, the Secretary of State refused his asylum application. First, it was not accepted that he had any risk of being forcibly recruited by HII given that he was uncertain whether or not his relatives were still alive and such a fear was entirely speculative.
Second, it was accepted that the applicant had worked as an interpreter for US forces in Afghanistan given the large amount of supporting documentation and photographs that he had produced to that effect. However, it was not accepted that the Taliban would have been aware that he had been the interpreter who had been involved in the search for Linda Norgrove. Additionally, it was not accepted that the applicant had received the threats as he had claimed from the Taliban given, inter alia, discrepancies in his account over the dates of the same; it was not accepted as being plausible that the Taliban would have continued to threaten him rather than harm him even after he had continued to work as an interpreter despite their earlier warnings; and it was considered that the fact that he had continued to work for US forces despite the threats against him was at odds with his claimed fear of the Taliban. Furthermore, it was not accepted that two armed Taliban members had attended his home to kill him in April 2011 given that they had not fired at him and he had been able to escape from them. It was also not accepted that the applicant had been involved in the search for Linda Norgrove given that the information that he had given regarding the same was contradictory to that which was available in the public domain.
The applicant’s credibility was also considered to be undermined by the fact that he had failed to claim asylum in France despite having spent 22 days there on his way to the United Kingdom. In sum, even taking the applicant’s claims at its highest, it was not accepted that his fear of the Taliban was well-founded because it was not accepted that he had had any real difficulties with them in the past. Furthermore, it was considered that he had failed to establish a sustained and systemic failure of state protection on the part of the Afghan authorities and he could therefore seek protection from the Afghan authorities against the Taliban. Finally, it was considered that he could internally relocate to Kabul for safety as a fit and healthy man of 23 years of age.
In a decision promulgated on 30 June 2011, the First-tier Tribunal (Immigration and Asylum Chamber) dismissed the applicant’s appeal. The Immigration Judge (“the IJ”) accepted that the applicant had worked as an interpreter for US forces given the documents and photographs that he had produced to that effect. Furthermore, the IJ accepted that the applicant had probably used an Icam scanner and been given a weapon for his own protection in Afghanistan. However, the IJ did not accept that the applicant had been involved in the rescue operation of Linda Norgrove and instead found that he had fabricated that part of his claim and had spoken of a well known and well publicised incident to embellish a claim that he would be at enhanced risk upon return to Afghanistan. In that regard, the IJ considered, inter alia, that the applicant would have known her surname had he been so involved in the search operation; that there were inconsistencies between his account and the account set out in newspaper articles which had not referred to any Afghan National Army soldiers being involved in the search operation; and that he had made a late fabrication regarding the timing of the event to bolster his asylum claim. Furthermore, the IJ stated that, if the applicant had had such a pivotal role in the operation, he would have expected the US forces to have provided a more recent and specific letter of recommendation rather than the more general and comparatively out of date letters that the applicant had submitted at his appeal. Additionally, the IJ did not accept that the applicant would have been the only interpreter involved in such a rescue operation given the sensitivity, numbers of personnel involved and number of villages that had been searched. The IJ also found that the applicant had not given a credible explanation as to how the Taliban would have become aware that he had been the interpreter who had used the Icam scanner to identify the location of Linda Norgrove. The IJ also found that the applicant had been inconsistent about when he had allegedly received threats from the Taliban and considered that the dates that he had given were inaccurate and inconsistent with when the rescue of Linda Norgrove had taken place.
The IJ also entirely disbelieved that there would be any risk to the applicant in Kabul from members of his family and considered that that issue had been an embellishment to his claim. In that regard, the IJ noted that the applicant had not submitted any evidence regarding the same and that in his asylum interview he had stated that his uncles were missing and may even have died.
The IJ commented that during the course of the hearing he had found the applicant to be an untruthful witness who had been anxious to give a rehearsed story.
Finally, the IJ considered the applicant’s claim in the context of the country guidance determination of GS (Article 15 (c): Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044, which had found 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. The IJ stated that he had considered with care whether the applicant would fall within an enhanced risk category because of his work as an interpreter for the US forces but had concluded that that could not be considered to be the case given that many Afghan nationals would have worked for the US and international forces. The IJ considered that, as a young man in good health who had been able to travel independently from Afghanistan, it was not likely to be unduly harsh or unreasonable to expect the applicant to relocate to Kabul particularly given that he had married sisters apparently living safely in Kabul. As a last point, the IJ considered that the applicant’s failure to claim asylum in France damaged his credibility; and found that the fact that the applicant had confirmed in his asylum interview that he had always been planning to come to the United Kingdom because France was not the safest country for human rights demonstrated that he had chosen his country of destination in advance rather than fleeing and claiming asylum in the first safe haven at which he arrived.
On 6 July 2011, a Senior Immigration Judge refused an application for permission to appeal stating that in a very careful and detailed determination, the IJ had given cogent and sustainable reasons, which had been fully open to her on the evidence, for concluding that the applicant had not left Afghanistan because of persecution and that he could return there without facing a real risk of serious harm. Further, the IJ had adequately explained why the applicant would not be at risk in Kabul, to where he could viably relocate.
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 (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.
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.
C. UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010
The most recent UNHCR Eligibility Guidelines set out that there is a systematic and sustained campaign by armed anti-Government groups to target civilians associated with, or perceived as supporting, the Afghan Government or the international community, particularly in areas where such groups are active.
The Guidelines explain that, whilst the majority of targeted attacks on civilians by armed anti-Government groups have occurred in those groups’ strongholds, the number of targeted assassinations and executions of civilians has also increased in other parts of the country previously considered more secure.
The Guidelines therefore go on to clarify that UNHCR:
“considers that persons associated with, or perceived as supportive of, the Government and the international community and forces, including Government officials, Government-aligned tribal and religious leaders, judges, teachers and workers on reconstruction/development projects, may, depending on the individual circumstances of the case, be at risk on account of their (imputed) political opinion, particularly in areas where armed anti-Government groups are operating or have control.”
The Guidelines also highlight the fact that the Taliban have also intimidated, threatened and killed individuals, including Hazaras, suspected of working for, or being supportive of, the Government and the international military forces.
COMPLAINTS
The applicant complains under Articles 2 and 3 of the Convention that his proposed removal to Afghanistan would put his life at risk.
QUESTION TO THE PARTIES
Given that it has been accepted that the applicant worked as an interpreter for the United States forces in Afghanistan, would the applicant’s removal to Afghanistan violate Article 2 and/or Article 3 of the Convention?