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URL: http://www.bailii.org/eu/cases/ECHR/2011/807.html
Cite as: [2011] ECHR 807

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10 May 2011

FOURTH SECTION

Application no. 56676/10
by H.N.
against the United Kingdom
lodged on 4 October 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr H.N., is an Afghan national who was born in 1992 and lives in Slough. He is represented before the Court by Haris Ali & Co, a law firm practising in Middlesex.

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 an unknown date in April 2008 when he was fifteen years of age. On 11 April 2008, he claimed asylum. On the same date, he was assessed by Slough Social Services as being a minor born on 1 September 1992.

On 3 June 2008, he was interviewed in relation to his asylum claim. He claimed that he would be at risk upon return to Afghanistan from the Hizb e Wahdat Party (one of the main Hazara parties) due to his father and maternal uncle's connections with the rival Harakat e Islami party. Without being able to give specific dates, he claimed that, when he was young, his family home in Helmand province was attacked by gunfire on two occasions leading his father to decide that the family should relocate to Kabul. However, just before the family had relocated and when the applicant was nine or ten years of age, his father and his uncle were both murdered in an ambush. At some point earlier, he claimed that his cousin had also been murdered. The applicant moved to Kabul with his mother and two younger siblings. He claimed that, on two occasions, he was attacked in Kabul by masked men who kicked and punched him before he was able to escape with the assistance of his employer. This led his mother to send him to Iran to live with his uncle at some point between 2003 and 2005. After two years in Iran, he was arrested and detained as an illegal immigrant by the Iranian authorities. His uncle, who lived in Iran, paid for his release and organised his journey to the United Kingdom. The applicant claimed that he had not had any contact with his mother or siblings since leaving Iran and that, in his last conversation with his mother, she had informed him that his brother had been shot and that the family were leaving Kabul and moving to a safe place. He therefore claimed that he had no-one to return to in Afghanistan.

On 29 August 2008, his asylum application was refused by the Secretary of State. However, he was granted discretionary leave to remain in the United Kingdom until 25 February 2010 (when he would be seventeen and a half years of age), in accordance with Government policy relating to unaccompanied asylum-seeking children. The Secretary of State accepted that the applicant was a Hazara from Helmand Province; that his father and uncle may have been members of Harakat e Islami; that they may have been killed in a rocket attack; that his cousin may have been killed many years ago; and that the applicant had spent several years living in Iran before being arrested and detained which had led to his journey to the United Kingdom. Nevertheless, the Secretary of State did not accept that any problems that the applicant had encountered in Kabul were in any way related to his father or to his uncle's political activities. Further, it was not accepted that the applicant had a well-founded fear of Hizb e Wahdat because, after a detailed search of the available objective information, there was nothing to indicate that the two Hazara parties had been in any conflict since the 1990s; and his claim that he would be at real risk from Hizb e Wahdat was considered to be wholly uncorroborated. In any event, it was not accepted that the applicant had been attacked in Kabul given, inter alia, his inconsistent evidence; the fact that he claimed that his attackers had spoken Pashto, a language not usually spoken by Hazaras; and the fact that his description of the attacks in Kabul was inconsistent with the modus operandi of previous attacks against his family. Furthermore, even if the two attacks in Kabul had taken place, it was not accepted that they were linked to each other or to Hizb e Wahdat. Finally, even taking his claim at its highest, it was considered that he had not demonstrated that he would not be able to access a sufficiency of protection in Afghanistan, particularly in Kandahar where his father's party had militia; or that he would be unable to relocate to Kabul, where he had lived for almost three years without coming to serious harm.

On 23 February 2010, the applicant applied for further leave to remain relying on, inter alia, Articles 3 and 8 of the Convention. On 8 March 2010, the Secretary of State refused that application. First, it was noted that the applicant had failed to raise any further information regarding events in Afghanistan and thus the reasons set out in the decision of 29 August 2008 were maintained. Furthermore, in relation to his claim to have no-one to return to in Afghanistan and that he would be at risk living alone there, it was considered that, as a healthy young adult, he could reasonably be expected to build a life and earn a living in Afghanistan. Second, it was not accepted that his removal would reach the high threshold required to engage Article 3 of the Convention (as set out in N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008) because, although he claimed to have headaches which led to fever, there was no evidence that he would be unable to access medical treatment upon return to Afghanistan. Finally, it was not accepted that his removal would breach Article 8 of the Convention, because even if he had left Afghanistan at some point between 2003 and 2005 and had begun to establish ties in the United Kingdom, it was considered that he would have been fully aware of the precarious nature of his immigration status in the United Kingdom and he was not sufficiently estranged from the country that it would be disproportionate to expect him to readjust to life there.

On 21 June 2010, the First-tier Tribunal (Immigration and Asylum Chamber) dismissed his appeal. The Immigration Judge accepted that the applicant was Hazara; that his father and uncle were members of Harakat e Islami; and that they, and his cousin, might have been killed. However, the Immigration Judge found that his account of being targeted in Kabul was not credible and that he had invented the two attacks upon him to bolster his asylum claim because, inter alia, if Hizb e Wahdat had been determined to target the applicant they would have had ample opportunity to do so earlier; it was not plausible that they had only known where he worked and not where he lived; and his account of the attacks was implausible, inconsistent and contradictory in parts. The Immigration Judge found that the applicant did not have a political profile and that he had invented any attack upon his younger brother. The Immigration Judge found it to be speculative to conclude that the applicant would be targeted by followers of Hizb e Wahdat as a male relative of a deceased member of Harakat e Islami.

Furthermore, even though the Immigration Judge acknowledged that information from the British Red Cross stated that they had been unable to trace the applicant's mother, the Immigration Judge thought that it was reasonably likely that the applicant was aware of her whereabouts in Afghanistan and therefore did not accept that he would be without family support there. As a result, whilst acknowledging the expert evidence submitted which set out the risks to the applicant from the Taliban as a young Hazara without family protection, the Immigration Judge did not accept that the applicant would suffer such targeted violence or forced recruitment because he would be able to access family protection there. Similarly, whilst accepting the expert evidence regarding the risks to lone individuals without support in a similar position to the applicant in Kabul, the Immigration Judge did not accept that the applicant would be vulnerable to any such physical, sexual and economic abuse given that it was reasonably likely that the applicant was aware of the whereabouts of his family there. Additionally, without any evidence regarding the same, the Immigration Judge did not accept that the applicant would be at risk simply because of his Hazara ethnicity. In sum, it was not accepted that the applicant would be at real risk upon return to Afghanistan. Finally, the Immigration Judge did not accept that any interference in his private life caused by his removal would have consequences of sufficient gravity as to potentially engage Article 8 of the Convention; in the alternative she found that any interference in the same would be necessary in a democratic society.

On 11 October 2010, a Senior Immigration Judge refused his application for permission to appeal. Even though submitted three months out of time, in the interests of justice, the application was nevertheless considered because the applicant was a minor and claimed to have had problems with legal representation. Nevertheless, it was not accepted that there was any material error of law in the appeal determination given that the Immigration Judge had set out a detailed analysis of the evidence; had given proper and adequate reasons and had come to a sustainable conclusion; and had demonstrated that he was well aware that the applicant was a minor because the applicant's age had featured as a central part of the Immigration Judge's consideration.

On 4 November 2010, the High Court refused his application for judicial review, noting that the applicant's Article 2 and 3 rights had been considered at all levels and that, following a detailed analysis of the evidence, the Immigration Judge had concluded that the applicant had failed to demonstrate a well-founded fear of persecution. In relation to Article 8, it was considered that the applicant had not established a private life in the United Kingdom.

In a letter dated 1 December 2010, the British Red Cross confirmed that, in August 2008, the applicant had first contacted their services seeking to locate his mother but that, due to inabilities to locate her at that time, his case had been closed in October 2008. They further confirmed that the applicant had returned to their services in April 2010 seeking further advice on re-starting a search for his mother but that, because there had been no change to the country capacity, his case had been closed again on 23 July 2010 without any success.

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 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 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 under Articles 2 and 3 of the Convention that his removal to Afghanistan would put his life at risk. The applicant further complains under Article 6 of the Convention that the asylum proceedings in the United Kingdom were unfair because the authorities did not adequately take into account the fact that he was a minor who had undergone traumatic events at a very young age. Finally, he complains that his removal to Afghanistan, where he has no family or support, would breach his rights to private life under Article 8 of the Convention.

QUESTION TO THE PARTIES

Given that the applicant is a young Hazara Shia Muslim would the applicant's removal to Kabul, where he has no family or support, breach Articles 2 and/or 3 of the Convention?