European Court of Human Rights

FOURTH SECTION

Application no. 67792/10
by A.H.M.
against the United Kingdom
lodged on 22 November 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr A.H.M., is an Afghan national who was born in 1992 and lives in Taunton.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is an ethnic Hazara of the Shia religion from Helmand province in south-west Afghanistan. He arrived in the United Kingdom on 11 March 2008 when he was sixteen years of age, and claimed asylum the following day. The basis of his asylum claim was threefold. First, he feared reprisals and ill-treatment from fellow Hazaras due to his father’s work transporting weapons for the Taliban. Second, he feared ill-treatment from the Pashtun majority because of his Hazara ethnicity. Third, he feared ill treatment from the Taliban if he refused to fight for them. He claimed that the Taliban had come to his home when he was ten years of age and had demanded that his father and he join their ranks. The applicant believed that his father had agreed to work for the Taliban in the hope that the applicant would not also be forced to join their forces. When the applicant was thirteen years of age, a group of masked Hazara men had attacked the family home resulting in the death of his father and gunshot wounds to the applicant. After that date, the applicant was rarely allowed out of the home by his mother but, when he did venture outside, he claimed that he suffered constant abuse and that, on one occasion, he had been stabbed in the shoulder. He claimed that he was unable to receive any protection from the Afghan authorities. His mother had finally decided that the applicant needed to leave Afghanistan for his own safety and arranged his journey to the United Kingdom.

On 12 March 2008, the applicant was taken into Social Services’ care and subsequently lived with a foster family. He has now been informally adopted into a British family.

For an unknown reason, the consideration of the applicant’s asylum claim was delayed and he was not formally granted any form of discretionary leave to remain in the United Kingdom as an unaccompanied asylum-seeking minor. On 25 August 2009, he was interviewed in respect of his asylum claim and on 22 April 2010, the Secretary of State refused his claim considering that it was not credible. The Secretary of State did not accept that the applicant was either Afghani or Hazara or that the events that he had raised had ever occurred in Afghanistan. In any event, the Secretary of State considered that people of Hazara ethnicity were unlikely to face persecution in Afghanistan and that, if necessary, the applicant could relocate to Kabul where there would be a sufficiency of protection available to him.

The applicant appealed relying on, inter alia, Articles 3 and 8 of the Convention. On 24 August 2010, the First-tier Tribunal (Immigration and Asylum Chamber) dismissed his appeal “with great reluctance”. In contrast to the Secretary of State, the Immigration Judge found the applicant to be a credible witness, bearing in mind that he had come to the United Kingdom at 16 years of age, alone and initially without any support and had immediately claimed asylum, but had not been interviewed about the facts of his claim for asylum for 17 months. The Immigration Judge considered that “it was rather galling” that the delay in interviewing the applicant appeared to have “resulted from a deliberate attempt” to deny the applicant the benefit of its policy to grant discretionary leave to remain to unaccompanied asylum-seeking children until they reached the age of 17 and a half years. Furthermore, the Immigration Judge considered that the applicant’s answers had the ring of truth; bore no signs whatsoever of having been scripted; and that the core of his account had remained consistent during his asylum interview and in court.

It was noted that the applicant had shown commitment and perseverance in bettering himself in the United Kingdom, had obtained qualifications in English and had won a young person’s award from South Gloucestershire Council. Nevertheless, whilst the Immigration Judge found that the applicant was “an admirable young man who would no doubt have much to offer British society” and deserved sympathy and a bright future, he was unable to consider that this was the same as entitlement to international protection.

To that end, the Immigration Judge accepted that the applicant’s experiences in Helmand province were due to his father’s association with the Taliban and the political opinion imputed to him as a result. He also accepted that, if the applicant were to return to Helmand Province, he would be at real risk of attacks from fellow Hazara and others and that the Afghan authorities would be unable to protect him. He concluded that returning the applicant to Helmand province would be in breach of the Refugee Convention 1951. Crucially however, the Immigration Judge considered that the applicant would be able to relocate internally to Kabul for safety as the Immigration Judge had not been provided with any evidence to suggest that he should depart from earlier country guidance cases, including PM and Others (Kabul – Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089 and RQ (Afghan National Army – Hizb-i-Islami – risk) Afghanistan CG [2008] UKAIT 00013 (see domestic law and practice set out below), which had found that it would not be unreasonable to expect a young man to relocate to Kabul. The Immigration Judge noted that the applicant had not demonstrated any factors to put him in a category of enhanced risk, no particular warlord or faction would be looking for him in Kabul and it was not accepted that the presence of scarring would mark him out from the crowd or bring him to the attention of Hazara groups in Kabul. The additional skills that he had mastered in the United Kingdom were considered to potentially make his re-integration into Kabul easier to achieve.

On 10 September 2010, a Senior Immigration Judge refused his application for permission to appeal to the Upper Tribunal noting that the Immigration Judge had substantially believed the applicant but had decided that he could reasonably be expected to relocate to Kabul. It was not accepted that any delay in the treatment of the applicant’s asylum claim had been material to the decision.

The applicant applied for permission to apply for judicial review and a stay on his removal arguing, inter alia, that his removal to Afghanistan would breach Article 3 of the Convention and that the domestic authorities had failed to consider whether the applicant’s age and his lack of family in Afghanistan would expose him in particular to the indiscriminate violence which was rife in Afghanistan. He argued that internal relocation to Kabul would not be viable given his age, the fact that he had no family there, had never travelled there and had been unable to locate his family through the Red Cross. Furthermore, he argued that his removal would be a disproportionate interference with his private life in the United Kingdom under Article 8 of the Convention.

On 19 November 2010, the High Court refused the application stating, inter alia, that the Secretary of State’s delay in dealing with his asylum claim may have been regrettable but that it had not been shown that it had led to unfairness in dealing with it as the Immigration Judge had expressly taken it into his account in his favour when favourably assessing his credibility; that it was unable to discern that the decision under Article 8 was one that could not reasonably have been reached; and that on the critical aspect of whether it was impracticable or unsafe for the applicant to return to Kabul (as opposed to his home area), it was unable to discern any error in law or a conclusion that could not reasonably have been reached.

On 22 November 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 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.

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 MI (Hazara-Ismaili-associate of Nadiri family] Afghanistan CG [2009], the then AIT found that a person of Hazara ethnicity or of the Ismaili faith or who is associated with the Nadiri family was not likely to be at a real risk of serious harm in Afghanistan by reason of any of those factors alone or a combination of any of them, although different considerations would apply if an Ismaili’s own home area were to be in an area controlled by the Taliban, given the large scale massacre of Ismailis which took place when the Taliban took over the province of Baghlan in 1998. In such a case, however, the Tribunal found that he would ordinarily be safe in Kabul.

In PM and Others (Kabul – Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089, the then AIT found, inter alia, that subject to an individual’s personal circumstances, it was unlikely to be unduly harsh or unreasonable to expect them to relocate to Kabul if they had established a real risk of serious harm in (and restricted to) areas outside Kabul.

In RQ (Afghan National Army – Hizb-i-Islami – risk) Afghanistan CG [2008] UKAIT 00013, the then AIT found that where there was an individual risk to a person in his home area, it would be a question of fact whether internal relocation was an option. Where such a real, individual risk that a person would be personally pursued was established, the authorities in Kabul were not capable of individual protection, the International Security Assistance Force was 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 was reasonable or was unduly harsh, both in relation to the conditions in the city of relocation and the individual history and aptitudes of the particular appellant.

In GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044, the then AIT held 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 threatened 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.

COMPLAINTS

The applicant complains that his removal to Afghanistan would be in violation of Articles 2, 3, 4, 8 and 14 of the Convention. In particular, he claims that, as a young Hazara, in the current security environment he will be at risk of ill-treatment from extremists due to his ethnicity and previous history in Afghanistan. He claims that he has no family members in Kabul to whom he could safely return and that the Afghan authorities will be unwilling and unable to provide him with any protection.

QUESTIONS TO THE PARTIES

Given that the applicant is a young Hazara Shia Muslim, who has been accepted as being at real risk of ill-treatment in Helmand province, would the applicant’s removal to Kabul, where he has no family or support, breach Articles 2 and/or 3 of the Convention?

Would the applicant’s removal from the United Kingdom violate Article 8 of the Convention?