UK - Asylum and Immigration Tribunal, 19 October 2009, GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKIAT 00044

Facts:

The applicant was a young man from Jalalabad. He had no immediate family in Afghanistan. He had failed to qualify as a refugee but feared indiscriminate violence in Afghanistan.

Decision & reasoning:

The Tribunal relied on Elgafaji v Staatsecretaris van Justitie (V-465/07) [2009] 2 CMLR 45, which was extensively quoted. Having reviewed the domestic authorities the Court identified five unresolved issues and recorded the extensive submissions on each point.

(1) The Tribunal followed domestic authority and found that there was no significant distinction between “for reason of”, the form of words used in the Refugee Convention, and “by reason of” the wording in Art 15 (c) of the Qualification Directive. The applicant for Art 15 (c) protection needed to show that the indiscriminate violence was an effective cause of the serious and individual threat. Only when satisfied by domestic authorities did the Tribunal note that this position was consistent with Art 9.3 of the Qualification Directive.

(2) The Tribunal had identified the distinction between discriminate and indiscriminate violence as an unresolved issue of law, but in any event seemed to have concluded that it was a question of fact and followed the submissions of the parties in merely offering factual examples, which illustrated the problem.

(3) It took a similar approach to the related issue of whether an applicant could rely on the indirect consequences of armed conflict and gave examples rather than clearly defining limits. The Tribunal asked whether the general problems of food shortage in Afghanistan had come about “by reason of indiscriminate violence as opposed to targeted violence of armed groups against one another.” It concluded that the causal nexus had not been established in that case but could be established if the population was forced into starvation by indiscriminate bombing. The Tribunal speculated that the general food situation may not have been much better even without the armed conflict. The question again seems to come down to causation and analysis of the facts rather than legal principle.

The Tribunal could identify no reason in principle why criminal acts should be excluded from consideration under Art 15 (c), but emphasised that not all criminal acts would cross the threshold of the severity of violence and the gravity of the threat, so as to engage Art 15 (c).

(4) Significantly, before it considered the meaning of “life or person” the Tribunal rejected a submission that Recital 10, when read with Art 6 (1) of the Consolidated Version of the EU Treaty, meant that human dignity was a relevant consideration for Art 15 (c). It held that Recital 10 was merely aspirational and that since Elgafaji distinguished between Arts 15 (a) and (b), and (c), it was not appropriate for the definition of one kind of risk to inform the definition of another.

The Tribunal continued with this narrow view and while acknowledging that the risk to “life or person” was more than simply a risk of death, rejected the submission that the harm to a person covered by Art 15 (c) extended to flagrant breaches of qualified rights like freedom of thought, conscience and religion suggesting that such breaches would be more appropriately dealt with under Art 3 of the European Convention on Human Rights (ECHR) or Art 15 (b) of the Qualification Directive. Art 15 (b) was of assistance to understand the “level, but not the type) of harm” which would engage Art 15 (c). Again, having identified an unresolved legal issue the Tribunal found that found that there was no precise definition of “or person” and gave only limited guidance on the type of harm beyond merely physical damage, which would engage Art 15 (c).

(5) The final legal consideration concerned those at enhanced risk. The Tribunal quoted para 39 of Elgafaji restating the centrality of the test of “real risk”.

Having established the legal framework the Tribunal then analysed the expert evidence on the situation in Afghanistan prior to December 2008. Much of this evidence was statistical and referred to physical casualties of the violence. The Tribunal concluded that the level of violence was not sufficiently serious as to constitute a real risk of serious harm in Jalalabad, the applicant’s home city.

The Tribunal went on to consider whether the applicant could safely travel from Kabul to Jalalabad and concluded that he could, but if he could not it considered that he could safely resettle or relocate to Kabul.

Outcome:

The appeal was dismissed.

Observations/comments:

Although the applicant made no claim to being in a category of an ‘enhanced risk’, the Tribunal did consider the possibility of some Afghan nationals falling into such a category. It proposed some potential examples but could not produce a list and left the matter open, noting only that the level of indiscriminate violence would reduce in relation to the increased risk attaching to the individual.

The Decision annexes a list of the documents in the public domain received by the Tribunal.