ECtHR - H. and B. v. the United Kingdom, Application No. 70073/10 and 44539/11

Facts:

The two applicants, who were Afghan nationals, applied for asylum in the United Kingdom because they feared ill-treatment at the hands of the Taliban in reprisal for work they had performed in Afghanistan for the international community, the first applicant as a driver for the United Nations and the second applicant as an interpreter for the United States forces. Their applications were refused, partly on grounds of credibility, but also because the United Kingdom authorities considered they could in any event safely relocate to the capital, Kabul.

Decision & reasoning:

The Court decides to join applications (no. 70073/10 and 44539/11) against the United Kingdom of Great Britain and Northern Ireland lodged by two Afghan nationals, Mr H. and Mr B.

 The Court considers that general situation in Afghanistan was not such that there would be a real risk of ill-treatment if an individual was simply returned there. The applicants argued the risk of ill-treatment at the hands of the Taliban owing to their support of the international community. Since the UK Government proposed to remove the applicants to Kabul and as neither applicant had submitted anything to suggest that he would not be able to gain admittance and settle there, it was unnecessary to examine the question of risk in any other part of the country.

As to the risks in Kabul, it was significant that the Office of the United Nations High Commissioner for Refugees (UNHCR) had indicated in its 2010 Guidelines that the majority of targeted attacks and assassinations by armed anti-government groups had occurred in those groups’ strongholds. Furthermore, the Landinfo Report also observed that killings of low profile collaborators were not being reported in areas where they were not in control such as Kabul. Thus, despite suggestions that the number of targeted assassinations was increasing in areas previously considered to be more secure, the Court considered that there was insufficient evidence at present to suggest that the Taliban had the motivation or ability to pursue low level collaborators in Kabul or other areas outside their control. Accordingly, while certain individuals perceived as supportive of the international community might be able to demonstrate a real and personal risk from the Taliban in Kabul this did not apply to everyone with connections to the UN or the US forces, but depended on the individual circumstances of their case, the nature of their connections to the international community and their profile.

The first applicant (Article 3):The Court found that his case had been thoroughly examined by the UK authorities. He had been heard both at his asylum interview and before an immigration judge and had been legally represented on appeal. There was no reason to conclude that the domestic authorities’ decisions were deficient, that their assessment was insufficiently supported by relevant materials or that the reasons given were inadequate. Nor was there any new evidence to cast doubt on their conclusion that there were no substantial grounds for finding that the first applicant would face a real risk of proscribed treatment, in particular bearing in mind that four years had passed since he had stopped working for the UN and there was no evidence that he remained of any adverse interest to the Taliban.

The second applicant (Article 3):His claim had also been comprehensively examined by the national authorities, who had accepted that he had been an interpreter for US forces but not that he had been involved in the rescue of an aid worker. Cogent reasons were required to depart from the findings of fact of national courts and none had been found by the ECtHR. The claim that the second applicant was at risk from the Afghan authorities had never been raised domestically and was not supported by any evidence. As to the alleged risk from the Taliban, the Court was not convinced that he would be at risk in Kabul solely because of his previous work as an interpreter and noted that until early 2011 he had worked in a different province where he had no particular profile. He had not submitted any evidence or reason to suggest that he would be identified in Kabul, an area outside of Taliban control, or that he would come to the adverse attention of the Taliban there. Finally, regarding his claim that he would be destitute if returned to Kabul, the Court reiterated that humanitarian conditions in a country of return could give rise to a breach of Article 3 only in very exceptional cases. The second applicant, a young man in good health who had left Afghanistan as an adult in 2011, had failed to submit any evidence to the Court to suggest that his removal to Kabul, an urban area under government control where he still had family members, would meet that standard.

Outcome:

No violation of Article 3 of the Convention in the event of the removal of either of the applicants to Afghanistan

Article 8 complaint by the second applicant is manifestly ill-founded and rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

Observations/comments:

In her dissenting opinion judge Kalaydjieva agreedthat the current humanitarian situation or the risk of general violence in Aghanistan, and especially in Kabul, were not considered to expose every individual to ill-treatment contrary to Article 3. She though maintained that the absence of updated UNHCR official reports does not mean that there is no such risk. She noted that high UNHCR representatives have publicly assessed the effect of the mass return of Afghans as its “worst mistake”. She was unconvinced that the disturbing developments in Afghanistan 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. She also noted that that the foreseeable consequences of sending the applicants back to Afghanistan were not sufficiently taken into account with regard to the current situation in that country and the way it is likely to develop.

Other sources:

United Nations High Commissioner for Refugees 2009 Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan

United Nations High Commissioner for Refugees Eligibility 2010 Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan

United Nations Assistance Mission in Afghanistan Annual Report 2010 on Protection of Civilians in Armed Conflict

United Nations Assistance Mission in Afghanistan Annual Report 2011 on the Protection of Civilians in Armed Conflict

United States of America Department of State 2011 Country Report on Human Rights Practices, Afghanistan

United Kingdom Border Agency’s Operational Guidance Note on Afghanistan of June 2012

Afghanistan: Human Rights and Security Situation, by Dr. Antonio Giustozzi, Landinfo, 9 September 2011