UK - Upper Tribunal (Asylum and Immigration Chamber), AK (Article 15(c)) Afghanistan CG, [2012] UKUT 163 (IAC)
| Country of Decision: | United Kingdom |
| Country of applicant: | Afghanistan |
| Court name: | Upper Tribunal (Asylum and Immigration Chamber) |
| Date of decision: | 18-05-2012 |
| Citation: | [2012] UKUT 163 (IAC) |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
There is not currently an indiscriminate conflict in Afghanistan (as a whole, or in any province) within the meaning of Article 15(c). Internal protection is in general possible in Kabul; however it is unreasonable to expect certain categories of women to seek internal protection within Afghanistan.
Facts:
The applicant was a 22 year old male from Afghanistan. He was granted subsidiary protection by the Tribunal on the basis that his province, Ghazni, had an internal armed conflict within the meaning of Article 15(C) of the Qualification Directive and that Kabul would not suffice for internal protection. The UK government appealed.
Decision & reasoning:
The Court made clear that judicial decision makers should first deal with the issue of refugee eligibility, before moving to consider subsidiary protection eligibility and lastly Article 3 ECHR (para. 154).
In respect of following ECtHR cases, the Court held that even if there is a recent ECtHR judgement based on comprehensive Country of Origin Information (COI), a domestic court is not bound to reach the same findings as the European Court (para. 195).
The Court found that the situation in Afghanistan was worsening and the number of civilian deaths was rising. It noted that various EU States, and Switzerland, consider parts (or all) of Afghanistan to reach the Article 15(c) threshold. However the Court ultimately concluded that the level of indiscriminate violence in the country taken as a whole (or in any province) 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 (para. 197). The Court noted however that the fact that levels of violence continue to rise means that the situation needs to be kept under careful review (para. 248).
In principle, there is scope for Article 15(c)’s “sliding-scale” to protect recognised risk categories such as those set out by UNHCR in its 2010 Eligibility Guidelines (i)-(xi), and also “intermediate categories” of individuals (para. 209).
In respect of internal protection, when assessing whether Kabul city would be a viable option, it is necessary to take into account the level of violence in that city and also the difficulties experienced by that city’s poor; these considerations will not “in general” make return to Kabul unsafe or unreasonable, however an individual assessment is required in each case (para. 243).
This position is different for women (both in relation to Kabul and other potential places of internal protection): in general, it is unreasonable to expect lone women and female heads of household to relocate internally in Afghanistan.
Outcome:
Appeal dismissed
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
Follower Cases:
| Follower Cases |
| ECtHR - H. and B. v. the United Kingdom, Application No. 70073/10 and 44539/11 |
Other sources:
Switzerland: E-7625/2008 – ATAF (FAC) – 2011/7), S.A. v Federal Office for Migration, 16 June 2011, Swiss Federal Administrative Court
Switzerland: D-2312/2009, 28 October 2011, Swiss Federal Administrative Court
Switzerland: D-7950/2009, 30 December 2011, Swiss Federal Administrative Court
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 17 December 2010
Safe at Last: Law and Practice in Selected EU Member States with respect to Asylum Seekers Fleeing Indiscriminate Violence, UNHCR, July 2011
Common EU Guidelines on processing Country of Origin Information (COI), April 2008
UKBA Operational Guidance Note (OGN) v9, 20 February 2012