CASE OF H. AND B. v. THE UNITED KINGDOM
(Applications nos. 70073/10 and 44539/11)
9 April 2013
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of H. and B. v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 19 March 2013,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The first applicant
B. The second applicant
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Primary legislation
B. Country guidance determinations
1. Consideration of the level of indiscriminate violence in Afghanistan
“As regards Kabul, even confining attention to Kabul city, given the fact that this has a reported population of around 5 million and that Kabul province does not feature in any list of the most violent provinces, the argument for any engagement of the Article 15(c) threshold, if based primarily on civilian deaths, is even weaker: according to the 2011 UNAMA report, the number of civilian deaths in Kabul in 2011 was 71. We remind ourselves that the population of Kabul is around 5 million.”
In relation to Afghanistan as a whole, the Upper Tribunal concluded as follows:
(i) This decision replaces GS (Article 15(c): indiscriminate violence) Afghanistan CG  UKAIT 00044 as current country guidance on the applicability of Article 15(c) to the on-going armed conflict in Afghanistan. ...
(ii) Despite a rise in the number of civilian deaths and casualties and (particularly in the 2010-2011 period) an expansion of the geographical scope of the armed conflict in Afghanistan, the level of indiscriminate violence in that country taken as a whole is not at such a high level as to mean that, within the meaning of Article 15(c) of the Qualification Directive, a civilian, solely by being present in the country, faces a real risk which threatens his life or person.
(iii) Nor is the level of indiscriminate violence, even in the provinces worst affected by the violence (which may now be taken to include Ghazni but not to include Kabul), at such a level...”
2. Internal relocation within Afghanistan
“If the appellants show that they have a well founded fear in their home areas it is reasonable to expect them to live in Kabul. Kabul is a functioning city. It has a government and some security forces. We acknowledge that it is not the role of ISAF to protect individuals, but there is an Afghan army and a police force and security forces. Kabul is not an entirely lawless place. There are houses to rent, at a price; and despite a fairly high level of unemployment, there is work. The three appellants have spent a considerable time in the United Kingdom, they are all relatively educated and may well be in a good position to obtain work with the authorities or an NGO or similar. There is no satisfactory evidence that suggests that it would be unreasonable to expect them to live there, or that they would lead other than a relatively normal life. Insofar as Article 3 is concerned there is no satisfactory evidence that they would be subject to inhuman or degrading treatment or that they would be at real risk of a breach of any of their fundamental human rights in Kabul. It follows from all that we have said that in general returning failed asylum seekers, without more, are able to relocate to Kabul, if they cannot return safely to their home areas.”
“Whilst when assessing a claim in the context of Article 15(c) in which the respondent asserts that Kabul city would be a viable internal relocation alternative, it is necessary to take into account (both in assessing “safety” and “reasonableness”) not only the level of violence in that city but also the difficulties experienced by that city’s poor and also the many Internally Displaced Persons (IDPs) living there, these considerations will not in general make return to Kabul unsafe or unreasonable.”
III. RELEVANT EUROPEAN UNION LAW
“a) death penalty or execution; or
b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”.
IV. RELEVANT DECISIONS FROM OTHER JURISDICTIONS
V. RELEVANT INFORMATION ABOUT AFGHANISTAN
A. United Nations High Commissioner for Refugees (“UNHCR”)
41. On 17 December 2010, UNHCR issued the most recent Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan (“the December 2010 UNHCR Guidelines”).
“UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include (i) individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the ISAF; (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari’a law; (vi) women with specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds.”
“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.
Attacks by armed anti-Government groups, which have ranged from intimidation, assassinations, abductions and stand-off attacks, to the use of improvised explosive devises (IEDs) and suicide attacks, increasingly target civilians associated with or perceived as supportive of the Government and the international community/ISAF. Targeted civilians include Government officials and civil servants, Government-aligned tribal leaders, Ulema Council (a national clerics’ body) members, religious scholars, judges, doctors, teachers, and workers on reconstruction/development projects.
The majority of targeted attacks on civilians by armed anti-Government groups have occurred in those groups’ strongholds. However the number of targeted assassinations and executions of civilians has also increased in other parts of the country previously considered more secure. In the south-eastern and central regions, the number of assassinations and executions allegedly committed by armed anti-Government groups in 2010 has increased in comparison to 2009. Such targeted attacks rose dramatically in parts of the southern region, particularly in Kandahar, where the Taliban have been conducting a systematic and targeted assassination campaign since the beginning of 2010. An average of 21 assassinations per week (compared to seven per week during the same period in 2009) was recorded from June to mid-September 2010, mostly in the southern and south-eastern regions.
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.”
“A recently intercepted message from Mullah Omar, the spiritual leader of the Taliban movement, ordered Taliban members to capture and kill any Afghan who is supporting or working for Coalition forces or the Government of Afghanistan, as well as any Afghan women who are helping or providing information to Coalition forces. The message, which departs from his previous instructions to minimize civilian deaths, has fuelled fears of Taliban retaliation among ISAF civilian support personnel, such as Afghan interpreters.
The increased targeting of civilians is perceived as part of an effort by armed anti-Government groups to gain control over territories and populations. Local inhabitants are reportedly coerced into supporting anti-Government groups through threats or the use of force...”
“In order for an IFA/IRA [internal flight alternative/internal relocation alternative] to be a relevant consideration in any given case, the area must be found to be accessible and without factors that could constitute a well-founded fear of being persecuted.
Given the wide geographic reach of some armed anti-Government groups, a viable internal relocation alternative may not be available to individuals at risk of being targeted by such groups. It is particularly important to note that the operational capacity of the Taliban (including the Haqqani network), the Hezb-e-Eslami (Gulbuddin) and other armed groups in the southern, south-eastern and eastern regions is not only evidenced by high-profile attacks, such as (complex) suicide bombings, but also through more permanent infiltration in some neighbourhoods and the regular distribution of threatening “night-letters”.
Furthermore, some non-State agents of persecution, such as organized crime networks, local commanders of irregular or paramilitary outfits and militias, as well as the Taliban and the Hezb-e-Eslami (Gulbuddin), have links or are closely associated with influential actors in the local and central administration. As a result, they largely operate with impunity and their reach may extend beyond the area under their immediate (de facto) control.
UNHCR generally considers [internal relocation] as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of intended relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. A case-by-case analysis will, nevertheless, be necessary given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas.”
B. Other United Nations Reports
1. United Nations Assistance Mission in Afghanistan (“UNAMA”)
C. Other reports on Afghanistan
1. United States of America Department of State Report
2. United Kingdom Reports
3. Afghanistan: Human Rights and Security Situation, by Dr. Antonio Giustozzi, Landinfo, 9 September 2011 (“the Landinfo Report”)
“In comparative terms, the ongoing Afghan conflict has not been particularly bitterly targeted at civilians. Although civilian casualties have gradually increased year after year, they have done so less than proportionally with the increase in the number of violent incidents from 2008 onwards. This suggests that the parties in the conflict have been trying to restrain themselves and contain civilian casualties. In fact in the case of ISAF data provided by UNAMA shows a new decline in the number of civilians killed from 2009 onwards. In the case of the insurgents, they have killed more civilians, but not as many as they should have based on the increase in number of acts of violence. Similarly, episodes of targeting of civilians because of their association with one of the parties in the conflict have been rare. The main exception is represented by government officials, whom the insurgents have been proactively targeting and increasingly so.
The Taliban also forbid any kind of collaboration with the government and particularly with the foreign troops, including of an economic nature. Since contracting for ISAF or for western aid agencies is one of the main sources of employment in Afghanistan, the ban has a major impact on the ability of household to earn a livelihood. Unsurprisingly, most Afghans ignore it, at their risk and peril. Executions of contractors do occur. Usually the Taliban follow a procedure, which includes warning the collaborationists that they are going to be punished if they persist.”
“This is not a massive flow; most internally displaced people seem to have fled large scale military operations. However, there are thousands of individuals and families who have clashed with the Taliban, mostly for having been suspected of collaborating with the government. There are also government officials fleeing from their job towards Kabul or the cities in general. The Taliban has increasingly developed an ability to strike at will almost anywhere; harassment and targeting of “collaborators” now occurs even in the cities, even if on a small scale in Kabul and in the north and west. Those who fled and have given up their jobs, as well as their family members, do not appear to have been actively targeted in the cities. The Taliban potentially has the resources and skills to track down people, particularly if these are not in hiding but have to work; extensive infiltration of the police also helps the Taliban’s information gathering efforts. However, these escapees who no longer collaborate for the government are a low priority target to the Taliban, whose assets in the cities are limited and usually devoted to high profile targets, ranking from serving government officials upwards. In Kabul, for example, colonels of the police and army have been targeted, as well as commanding officers of the security services. In the provinces, particularly in the south, government officials of any rank, even low ones, have been targeted. The Taliban do not seem to systematically transfer information about targeted individuals from one area to the other; they maintain no databases. What typically happens is that the Taliban operating in a specific area will request information from other Taliban about a suspect individual, whenever needed. The flow of information therefore depends on the intensity of Taliban operations: the greater the presence, the greater the request of information. Often individuals apprehended by the Taliban as suspect spies are asked to provide references in order to verify their identity and activities. The risk to the escapees from Taliban controlled areas seems to derive mainly from chance contact with the Taliban, who may consider them an opportunity target. Usually the poorest and the Pashtun-populated areas of the big cities are the places where most Taliban infiltration of the cities occurs; in Kabul these are Bagrami suburb, south-eastern Kabul, southern Kabul and parts of western Kabul. In central Kabul, the Taliban are known to have developed a network of informers, among else buying shops in strategic locations and staffing them with members and sympathisers, the purpose being to observe embassies and government buildings. Such effort is clearly geared towards high value targets and collaborators.”
“The Taliban have been consistently expanding their information gathering operations; some parts of the country, in particular the south but also the south-east, the east and the provinces south and west of Kabul (Wardak, Logar) are thoroughly covered and there is little that the Taliban do not know, not least because they have extensively infiltrated the police and the state administration. In other parts of the country, like most of Kabul, most of the west and most of the north, the Taliban’s presence on the grounds is more modest and their ability to collect information more limited. More importantly, the Taliban’s ability to auction off the information collected is more limited in these areas, where they have to rely on a few hit teams in order to carry out their strategy of targeted killing. As a result, while the Taliban target even low level collaborators in the areas where they are present in force, they limit themselves to high profile targets elsewhere. Killings of low profile collaborators of the government is not being reported in these areas. We can expect the policy of targeted intimidation and killing to continue expanding, but the rate of expansion will depend on the ability of the Taliban to establish a strong presence in ever newer areas. There are already some areas of the regions less affected by the insurgency, where the Taliban are able to extensively target collaborators: a few suburbs of Kabul, Pashtun-populated areas of the north, etc.”
D. Media reports regarding Wardak province and attacks on Afghan interpreters
I. JOINDER OF THE APPLICATIONS
II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The parties’ submissions
a. The applicants
i. The first applicant
ii. The second applicant
b. The Government
i. Individual comments on the first applicant
ii. Individual comments on the second applicant
2. The Court’s assessment
a. General principles
Those relevant to the current applications are as follows:
- Expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3.
- The assessment whether there are substantial grounds for believing that the applicant faces such a real risk requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention.
- The assessment of the existence of a real risk must necessarily be a rigorous one. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3.
- If an applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court. A full and ex nunc assessment is called for as the situation in a country of destination may change over the course of time. Even though the historical position is of interest insofar as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive and it is therefore necessary to take into account information that has come to light since the final decision taken by the domestic authorities.
- Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection.
- In order to determine whether there is a real risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the country of destination, bearing in mind the general situation there and their personal circumstances.
- The Court has never excluded the possibility that a general situation of violence in a country of destination will be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return.
- Article 3 does not, as such, preclude Contracting States from placing reliance on the existence of an internal flight alternative in their assessment of an individual’s claim that a return to his country of origin would expose him to a real risk of being subjected to treatment proscribed by that provision. However, as a precondition of relying on an internal flight alternative, certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility of his ending up in a part of the country of origin where he may be subjected to ill-treatment.
b. Application of the general principles to the facts of the individual cases
i. The first applicant
ii. The second applicant
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
IV. RULE 39 OF THE RULES OF COURT
FOR THESE REASONS, THE COURT
1. Decides unanimously to join the applications;
2. Declares unanimously the applicants’ complaints concerning Article 3 admissible and the remainder of the applications inadmissible;
3. Holds by six votes to one there would be no violation of Article 3 of the Convention in the event of the removal of either of the applicants to Afghanistan; and
4. Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel the applicants until such time as the present judgment becomes final or until further order.
Done in English, and notified in writing on 9 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ineta
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kalaydjieva is annexed to this judgment.
DISSENTING OPINION OF JUDGE KALAYDJIEVA
I regret to state that I am unable to join the opinion of the majority in the present two cases. The applicants in these cases alleged that, if expelled from the United Kingdom to Afghanistan, they would face a real risk of ill-treatment not only in view of the indiscriminate violence in the destination country, but also because they risked being targeted on account of their earlier collaboration with the international community’s forces operating in Afghanistan at the relevant time - UNAMA (for the first applicant) and the US armed forces and the ISAF (for the second applicant). In their submissions the destination country’s authorities would not be able to afford them protection against this risk.
I am prepared to agree that the Asylum and Immigration Tribunal and the Upper Tribunal examined these issues in accordance with the data on the situation in Afghanistan and domestic guidelines available at the relevant time - 2010 for the first applicant and 2011 for the second. However, it is common knowledge that by the time their cases were examined by the Court, the situation in that country had evolved, and further reliable information had become available for the purposes of examining the risk in question.
It is true that the current humanitarian situation or the risk of general violence in the destination country, and especially in Kabul, are not considered to expose every individual to ill-treatment contrary to Article 3. But while in N. v. the United Kingdom ([GC], no. 26565/05, § 42, 27 May 2008) the Court held that “humanitarian conditions in a country of return could give rise to a breach of Article 3 of the Convention in a very exceptional case where the humanitarian grounds against removal are compelling”, the absence of updated UNHCR official reports does not mean that there is no such risk. High representatives of that organisation have publicly assessed the effect of the mass return of Afghans as its “worst mistake”.
Turning to the alleged specific risk of ill-treatment by insurgents on account of involvement with the international missions in Afghanistan, the current information, including domestic guidelines published in June 2012 and country reports of the United States of America, refers to a campaign of intimidation and indicates that civilian employees of the UN and US missions and NGOs in the country are increasingly targeted by the Taliban, including in Kabul. Between 2006 and 2011 at least twenty-two Afghan interpreters working for US forces, the international community or the UN were killed in different parts of Afghanistan (see paragraphs 50-60).
While I find myself unable to follow the logic of the domestic courts that the applicants “would not fall within an enhanced risk category ... given that many Afghan nationals would have worked for the US and international forces” (paragraph 22), I remain equally unconvinced that the disturbing developments and the ability of the Afghan Government authorities to protect the applicants against the alleged risk were sufficiently examined by the Court in the light of the information currently available.
In this regard the applicable standards and principles were outlined in the case of Saadi v. Italy ([GC], no. 37201/06, ECHR 2008) as follows (emphasis added):
“130. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others, cited above, § 108 in fine).
131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department (see, for example, Chahal, cited above, §§ 99-100; Müslim v. Turkey, no.o53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, 5 July 2005; and Al-Moayad v. Germany (dec.), no.o35865/03, §§ 65-66, 20 February 2007). At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others, cited above, § 111, and Fatgan Katani and Others v. Germany (dec.), no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov, cited above, § 73, and Müslim, cited above, § 68).
132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous paragraph, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see, mutatis mutandis, Salah Sheekh, cited above, §§ 138-149).
133. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal, cited above, §§ 85 and 86, and Venkadajalasarma v. the Netherlands, no. 58510/00, § 63, 17 February 2004). This situation typically arises when, as in the present case, deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court (see Mamatkulov and Askarov, cited above, § 69). Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive.”
I remain unconvinced that the foreseeable consequences of sending the applicants back to Afghanistan were sufficiently taken into account with regard to the current situation in that country and the way it is likely to develop.