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URL: http://www.bailii.org/eu/cases/ECHR/2011/514.html
Cite as: [2011] ECHR 514

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FOURTH SECTION

Application no. 70073/10
by M.J.H.
against the United Kingdom
lodged on 30 November 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr M.J.H., is an Afghan national who was born in 1975 and lives 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, a Hazara from Wardak province in central Afghanistan, arrived in the United Kingdom on 30 October 2008, and claimed asylum on 3 November 2008. The basis of his asylum claim was his fear of both the Taliban and Hizb-e-Islami due to his perceived connections with the Afghan Government and the United Nations. He claimed that, between 2004 and 2005, he had worked as a driver distributing leaflets for the elections and that, in that capacity, he had regularly worked with the United Nations Assistance Mission in Afghanistan (“UNAMA”). He further claimed that, from 2005 until 2008, he had worked in Kabul as a driver for the United Nations Office for Project Service (“UNOPS”), a branch of the United Nations Development Programme (“UNDP”). In August 2008, he received a telephone call from an unknown person in the Pushtu language threatening his and his family’s life unless he stopped working with “foreigners and non-Muslims”. A few days later, the Taliban came to his home, made further threats and, in the applicant’s absence, kidnapped his cousin. The applicant was advised by his family to leave Afghanistan immediately for his own safety. He fled to Pakistan, where his family later joined him. However, he felt that he remained a Taliban target in Pakistan and so arranged his journey to Europe.

On 17 December 2008, the Secretary of State refused his application considering that the applicant had fabricated aspects of his account and that his credibility was undermined by his failure to claim asylum in the European countries that he had passed through on his journey to the United Kingdom. Whilst it was acknowledged that the Taliban had been responsible for attacks on the Hazara in the past, it was not accepted that the applicant had ever been targeted by the Taliban or would be at risk in the future. It was similarly accepted that there may well have been incidents of the targeting of those working for foreign or international organisations within Afghanistan, but it was considered to be pure speculation that the threatening phone call that he had received had been from the Taliban. Further, it was considered to be inconsistent that the applicant would have been able to work for the UN for three years without any incidents occurring earlier. Even if the applicant’s cousin had been kidnapped, there was nothing to suggest that the incident related to the applicant’s involvement with the UN or a systematic campaign against him. Even taking the applicant’s claim at its highest, it was noted that the applicant had failed to seek assistance from the authorities, the UN or any other party. It was therefore considered that he had failed to demonstrate that a sufficiency of protection was not available to him in Afghanistan or that he could not internally relocate to another area of Kabul for safety.

In a determination promulgated on 4 January 2010, the Asylum and Immigration Tribunal (“the AIT”) dismissed his appeal. The Immigration Judge accepted that the applicant was of Hazara ethnicity and that, having regard to photographs, documentation and contracts regarding his employment, it was probably true that he had been employed by UNDP as a driver from 2005 until 2008. The Immigration Judge also accepted that the applicant had probably received a veiled threat in a telephone call from the Taliban which he had decided initially to ignore. He considered that such action demonstrated that the applicant had no fear of or from the Taliban. The Immigration Judge did not believe that there was any truth in the suggestion that the applicant had been targeted by the Taliban who had kidnapped his cousin instead of him because there was no evidence to back up his claim other that its being consistent with the objective evidence. Further, the Immigration Judge did not believe that the applicant could not safely relocate or that he would be known throughout Afghanistan as a UN driver as he had claimed. Finally, even if the whole of the applicant’s account was true, the Immigration Judge considered that there was no reason why he could not relocate, particularly to Kabul to where he would be removed in any event. In sum, the Immigration Judge did not accept that there were substantial grounds for believing that the applicant would face a real risk of suffering serious harm if he were returned to Afghanistan.

On 26 January 2010, a Senior Immigration Judge refused his application for reconsideration.

On 3 April 2010, the applicant was arrested at Heathrow airport in the possession of a false passport and charged with possession of a false identity document with intent. He claimed that he was trying to leave the United Kingdom to travel to New Zealand to claim asylum there because he was worried that, after the refusal of his asylum claim, the United Kingdom Government would try to enforce his removal to Afghanistan where his life would be at risk.

On 15 June 2010, the High Court refused a further application for reconsideration, noting the findings of the Country Guidance determination of GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 (see domestic law and practice below) that it would not be unduly harsh or unreasonable to expect a young man, as the applicant, to internally relocate to Kabul.

On 20 September 2010, at Wood Green Crown Court, the applicant was unanimously acquitted by a jury of the charge of the possession of a false identity document. From a letter dated 21 September 2010 from his criminal law barrister, it would appear that the jury, inter alia, accepted that the applicant had been acting under duress in the possession of the false passport in an attempt to leave the United Kingdom to avoid deportation to Afghanistan where his life was at risk; was satisfied that the applicant had a genuine fear of the Taliban in Afghanistan; was satisfied that a reasonable man in the applicant’s shoes would have done the same; and was satisfied that there was no realistic alternative open to the applicant other than doing as he had done.

On 3 December 2010, the Acting President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the first applicant should not be expelled until further notice.

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 were, at the relevant time, heard by the AIT. Section 103A of the Nationality, Immigration and Asylum Act 2002 (as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004) provided that a party to an appeal could apply to the High Court, on the grounds that the AIT had made an error of law, for an order requiring the AIT to reconsider its decision on the appeal. The High Court could make such an order if it thought that the AIT had made an error of law. At the relevant time, all applications for reconsideration went through a “filter procedure”, so that an application for reconsideration was first made to an authorised immigration judge of the AIT. If the immigration judge refused to make an order for reconsideration, the applicant could renew the application to the High Court, which would consider the application afresh.

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.

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.”

It further held that it would not be unduly harsh or unreasonable in all the circumstances to expect a young man, about whom nothing else is known, to relocate to Kabul.

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.

COMPLAINT

Without invoking any Article of the Convention, the applicant complains that his removal to Afghanistan would put his life in danger which falls to be considered under Article 3 of the Convention.

QUESTION TO THE PARTIES

Given that it appears to have been accepted that the applicant worked for the United Nations in Kabul, would the applicant’s removal to Afghanistan violate Article 3 of the Convention?