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You are here: BAILII >> Databases >> European Court of Human Rights >> S.H.H. v. THE UNITED KINGDOM - 60367/10 - HEJUD [2013] ECHR 102 (29 January 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/102.html Cite as: (2013) 57 EHRR 18, 57 EHRR 18, [2013] ECHR 102 |
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FOURTH SECTION
CASE OF S.H.H. v. THE UNITED KINGDOM
(Application no. 60367/10)
JUDGMENT
STRASBOURG
29 January 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 S.H.H. v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 8 January 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
“103. I accept that he is an Afghan national who may well have come from a village in Nangarhar province and may well have spent the early part of his life as a farmer. I accept that he may well be a single man and that he has clearly suffered certain severe injuries as a result of an accident which may well have involved a mortar, rocket or some form of bomb. I accept that he does have an amputated lower leg with a false limb together with the other injuries he has described.
104. I accept that he made his way to the UK and this may well have been over a six month period in a variety of modes of transport including a lorry. I accept that he will have paid an agent for this and that sum may well have been in the region of 15,000 US dollars. I accept that it may have been impractical for him to make a separate application for asylum en route. It is likely that he would have been under the control of the agent.
105. However, beyond these findings I cannot go. I cannot be satisfied as to any other details of the appellant’s case. I cannot be satisfied that he has established that he was a commander for the Hizb-e-Islami and for approximately a year and thereafter he remained with them after a brief stay with his family in the family village until he decided to leave, when it was suggested that he became a suicide bomber.”
“[H]e would have certain disadvantages greater than others by reason of his disability. But as referred to in the objective evidence he would not be alone with 80,000 amputees and 400,000 rendered disabled by the effects of war. This may not be a comforting statistic but it demonstrates how persons with such disadvantages are continuing to exist in Afghanistan.”
20. Finally, the Immigration Judge did not accept that the applicant had demonstrated that he would be more susceptible to indiscriminate violence by reason of his disability noting that:
“[T]he fact that he has survived in Afghanistan for three to four years without any indiscriminate violence overcoming him demonstrates that he has managed to cope with his disability in the political unrest that exists. The fact that he managed to come the whole of the way from Afghanistan in a variety of means of transport indicates that he is a resilient man who has overcome difficulties in a practical way. He may well have received assistance from those sympathetic to them. There is no reason to think that he will not continue to do so throughout his life.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Primary legislation
24. Appeals in asylum, immigration and nationality matters are heard by the First-tier Tribunal (Immigration and Asylum Chamber), which replaced the former Asylum and Immigration Tribunal (“AIT”) on 15 February 2010.
26. 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. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
B. Country guidance determinations
1. GS (Article 15 (c) : Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044
“The European Court made it clear in Elgafaji that where a person comes within a group of people for whom there is an enhanced risk, the degree of indiscriminate violence does not need to be as high as it would otherwise have to be in order to invoke Article 2 or Article 15(c). We have already observed that the ultimate test is that of real risk of serious harm. We have not heard much evidence about enhanced risk categories, and that is not an issue we have had to consider in relation to the appellant. It was accepted by counsel for the respondent that those who could be perceived as collaborators may be considered to be in such a category. That may include teachers, local government officers and government officials. The concept of a group of people at enhanced risk of indiscriminate violence is not an immediately obvious one. The difficulty concerns the use of the word “indiscriminate”, but the answer is partly contained in QD and AH, which considered the “individual risk of indiscriminate violence”. The way in which an enhanced risk might arise for a group can best be demonstrated by example. If, say, the Taliban wanted to make a point about teachers continuing to teach girls, it may resolve to kill a teacher. It would not be any specific teacher but one who came into their sights. A teacher is of course not a combatant and an attempt to kill the first teacher they came across could be argued to demonstrate that teachers were then at enhanced risk of indiscriminate violence. Another possible example could be disabled people. If a bomber, or sniper, were to walk into a crowded marketplace, the public may well flee. A man with only one leg would move considerably more slowly and arguably as a result would be in a higher risk group than the general public. In view of the paucity of evidence, we cannot give a list of risk categories, and certainly cannot say that any particular occupation or status puts a person into such a higher risk category. We merely record that there may be such categories, and that if a person comes within one, the degree of indiscriminate violence required to succeed may be reduced depending upon the particular facts of the case both in terms of the individual concerned, and the part of Afghanistan from which he comes. It should also be borne in mind that such a person may, depending on the facts, be entitled to refugee status rather than relying on the subsidiary protection offered by Articles 2 and 15 of the Qualification Directive. We emphasise that those examples should not be taken to indicate that teachers, or the disabled, are members of enhanced risk groups, without proof to that effect.”
2. Further consideration of the level of indiscriminate violence in Afghanistan by the Upper Tribunal
(i) This decision replaces GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] 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.
(iv) 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
“Serious harm” is defined in Article 15 as consisting of:
“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.”
“...the terms ‘death penalty’, ‘execution’ and ‘torture or inhuman or degrading treatment or punishment of an applicant in the country of origin’, used in Article 15(a) and (b) of the Directive, cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.
33 By contrast, the harm defined in Article 15(c) of the Directive as consisting of a ‘serious and individual threat to [the applicant’s] life or person’ covers a more general risk of harm.
34 Reference is made, more generally, to a ‘threat ... to a civilian’s life or person’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of ‘international or internal armed conflict’. Lastly, the violence in question which gives rise to that threat is described as ‘indiscriminate’, a term which implies that it may extend to people irrespective of their personal circumstances.
35 In that context, the word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place - assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred - reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive.
...
39 In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.
...
43 Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that:
- the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;
- the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place -- assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred -- reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.
44 It should also, lastly, be added that the interpretation of Article 15(c) of the Directive, in conjunction with Article 2(e) thereof, arising from the foregoing paragraphs is fully compatible with the ECHR, including the case-law of the European Court of Human Rights relating to Article 3 of the ECHR (see, inter alia, [NA. v. the United Kingdom, no. 25904/07, §§ 115-117, 17 July 2008] and the case-law cited).”
IV. RELEVANT INTERNATIONAL LAW
“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”
“States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.”
“...
2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”
“...
4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs....”
V. RELEVANT INFORMATION ABOUT AFGHANISTAN
A. United Nations High Commissioner for Refugees (“UNHCR”)
“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 International Security Assistance Force (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.
In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces. Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.
UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of prospective 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. 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, a case-by-case analysis will, nevertheless, be necessary.”
“The intensification and spread of the armed conflict in Afghanistan took a heavy toll on the civilian population in 2009 and continued to worsen through the first half of 2010. At least 5,978 civilians were reported killed and injured in 2009, the highest number of civilian casualties recorded in one year since the fall of the Taliban in 2001. 3,268 casualties were recorded during the first six months of 2010, representing a 31 percent increase over the same period in 2009. Compared to previous years and contrary to seasonal trends, a significant increase in the number of security incidents has been observed during the first half of 2010. This increase is in part attributable to an increase in military operations in the southern region since February 2010 and to significant activities of armed anti-Government groups in the south-eastern and eastern regions of Afghanistan. It is reported that armed anti-Government groups remain responsible for the largest proportion of civilian casualties, whether due to targeted or indiscriminate attacks.
The continued instability in Afghanistan has resulted in the shrinking of the humanitarian space, limiting the presence and activities of humanitarian workers and NGOs. Conflict-related human rights violations are on the rise, including in areas previously considered relatively stable. The escalation of the conflict between the Afghan and international military forces, and the Taliban and other armed groups, has contributed to limiting the access to health care and education, particularly in the southern and south-eastern regions of the country. A broad spectrum of civilians, including community elders, humanitarian personnel, doctors, teachers and construction workers has been targeted by armed anti-Government groups...”
“The traditional extended family and community structures of Afghan society continue to constitute the main protection and coping mechanism, particularly in rural areas where infrastructure is not as developed. Afghans rely on these structures and links for their safety and economic survival, including access to accommodation and an adequate level of subsistence. Since the protection provided by families and tribes is limited to areas where family or community links exist, Afghans, particularly unaccompanied women and children, and women single head of households with no male protection, will not be able to lead a life without undue hardship in areas with no social support networks, including in urban centres. In certain circumstances, relocation to an area with a predominately different ethnic/religious make-up may also not be possible due to latent or overt tensions between ethnic/religious groups.”
B. Other United Nations Reports
1. United Nations Assistance Mission in Afghanistan
“In the first six months of 2011, the armed conflict in Afghanistan brought increasingly grim impacts and a bleak outlook for Afghan civilians. As the conflict intensified in the traditional fighting areas of the south and southeast and moved to districts in the west and north, civilians experienced a downward spiral in protection. At the same time, non-State armed groups or Anti-Government Elements (AGEs) altered their tactics with deadly results. Increasingly, AGEs undertook unlawful means of warfare including increased use of improvised explosive devices (IEDs) - particularly victim-activated pressure plate IEDs which act like anti-personnel landmines and are indiscriminate, as they are detonated by any person stepping on or any vehicle driving over them - targeted killings of high profile civilians, and attacks on protected places such as hospitals.”
2. United Nations Committee on Economic Social and Cultural Rights (“UNCESCR”)
“The Committee, while taking note of the adoption of the 2008 Afghanistan National Disability Action Plan [see paragraph 48 below], regrets that the report does not accurately reflect the current situation of persons with disabilities and characterizes disability mainly as a matter of charity and a medical concern. The Committee is concerned at the lack of sufficient measures to implement the Action Plan.
The Committee recommends that the State party take concrete steps to implement the 2008 Afghanistan National Disability Action Plan without discrimination and, in this regard, consider ratifying the Convention on the Rights of Persons with Disabilities and its Optional Protocol.”
C. Reports from Afghanistan
1. The Afghanistan Independent Human Rights Commission (“the AIHRC”)
“Persons with disabilities are among the most vulnerable segments of population and the government has taken no measures to enable their full participation in society and to ensure their access to social and educational services. Due to the lack of public awareness about the concept of disability, persons with disabilities are often perceived as a family and societal burden and are humiliated and discriminated against. Article 22 of the Afghan Constitution has emphasised the equality of all people and has outlawed all forms of discrimination among citizens. Article 53 of the Constitution requires the government of Afghanistan to take the necessary measures to ensure rehabilitation, training, and active social participation of persons with disabilities and provide them with medical and financial assistance.
Under ANDS [“the Afghanistan National Development Strategy”], the government is obligated to provide further assistance to meet the special needs of persons with disabilities, including their inclusion in the community through providing education and job opportunities. No significant progress is visible in this area.
...
Thirty years of war in Afghanistan had unfavourable effects and one of these is the rise in the number of persons with disabilities. The Afghan conflict not only physically incapacitated people, but it also had negative implications for the psyche of Afghan public.
...
There is no precise assessment of the number and situation of persons with disabilities in Afghanistan and different authorities have presented different statistical data on the number of persons with disabilities. Handicap International estimates that there are 800,000 persons with severe disabilities, however, according to the national disability survey in Afghanistan, out of 25 million Afghan people, 747,500 to 867,100 people have severe disabilities, 17% of which are persons with war disability and 6.8% are victims of mines and other unexploded ordinance (UXO). On an average basis, for every five families, there is a person with a disability.
...
Approximately 70% of persons with disabilities aged over 15 are jobless. Disability has had a direct and strong correlation with the rising trend of unemployment.
...
Growing insecurity, homelessness, disputes over property, and lack of livelihood are the factors obstructing the return of refugees and the reintegration of returnees and IDPs. Insecurity in many parts of the country have made return to places of origin almost impossible. Several regime changes in the course of the Afghan conflict have given rise to several ownership claims on one single land plot. Many commanders have illegally expropriated lands and distributed them among their soldiers and relatives. Family size increased almost three times during forced migration and their return to their places of origin is obstructed, for their existing lands or houses are too small to accommodate them all. Additionally, many people who fled Afghanistan lacked property and are reluctant to return to their places of origin because there are no livelihood options. Inadequate economic opportunities have made return to one’s place of origin either impossible or undesirable. Most people who are unable to return to their places of origin migrate to other cities due to lack of livelihood options and homelessness and therefore join the category of the urban poor.”
2. The Afghanistan National Disability Action Plan 2008-2011 (Ministry of Labour, Social Affairs, Martyrs and Disabled, May 2008)
“Services are not equitably spread across all areas of the country and many people with disabilities lack appropriate care or must travel long distances to access it. For example, physical rehabilitation activities are available in only 80 out of 364 districts in 19 of 34 provinces in Afghanistan. Prior to the completion of the ANDS there was insufficient data available on the socio-economic conditions of people with disabilities. However, it was recognized that people with a disability were among those in the most socio-economically vulnerable situation in Afghanistan.
...
For example, the ANDS found that 70 percent of people with a disability aged over 15 are unemployed; 53 percent of males and 97 percent of females. In comparison, 25 percent of men and 94 percent of women without disability are unemployed.”
D. United States of America Department of State Report
“Continuing internal conflict resulted in civilian deaths, abductions, prisoner abuse, property damage, and the displacement of residents. The security situation remained a problem during the year due to insurgent attacks. According to a 2011 report by UNAMA, civilians continued to bear the brunt of intensified armed conflict as civilian deaths increased by 8 percent during the year compared with 2010.
The large number of attacks by anti-government elements limited the capability of the central government to protect human rights in many districts, especially in the South. The growth in civilian casualties was due primarily to the armed opposition’s indiscriminate use of land mine-like pressure plate improvised explosive devices
...
The government cooperated with the UNHCR, the International Organization for Migration (IOM), and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, and other persons of concern but was limited by lack of infrastructure and capacity.
...
Internally Displaced Persons (IDPs)
The country continued to experience high levels of internal population movements, triggered by military operations, natural disasters, and irregular labor conditions. Large numbers of refugees returned but were unable to reside safely in their previous homes because of poor service infrastructure in rural areas, and the volatile security situation in some parts of the country.
At year’s end, an estimated 447,547 persons were displaced, according to the UNHCR. Of these, 116,741 persons were displaced prior to December 31, 2002 (referred to as IDPs in protracted displacement). Between January and December, 185,631 persons were displaced due to conflict. The main areas in which displacement originated were Badghis, Farah, Ghor, and Herat in the West and Faryab in the North. The displaced populations largely remained in their regions of origin. The key provinces that received IDPs, in order of the numbers displaced, were Herat, Kandahar, Nangarhar, and Helmand.
Local governments provided access to land for basic accommodation, while international organizations and the Afghan Red Crescent Society provided shelter, food, and other life-saving aid. However, access to land and rights for returnees and IDPs were hampered by a weak judiciary. Some IDPs in protracted displacement established self-sufficient settlements in the Herat, Kandahar, Helmand, and Jalalabad areas.
Unverified populations, including IDPs and refugees who returned, were also known to reside alongside urban slum dwellers in unauthorized informal settlements in the larger urban areas of Kabul, Jalalabad, Mazar-e-Sharif, and Herat. These settlements were prone to serious deficiencies in several areas, including health, education, security of tenure, and absence of registration of child births and identity cards.
Restricted access due to poor security limited the UNHCR’s efforts to assess the numbers of displaced persons and made it difficult to provide assistance.
...
Persons with Disabilities
The constitution prohibits any kind of discrimination against citizens and requires the state to assist persons with disabilities and to protect their rights, including the rights to health care and financial protection. The constitution also requires the state to adopt measures to reintegrate and ensure the active participation in society of persons with disabilities. The MoLSAMD [Ministry of Labor, Social Affairs, Martyrs, and Disabled] drafted and the cabinet approved a five-year National Action Plan on March 16, which directs ministries to provide vocational training, establish empowerment centers, distribute food, build handicapped ramps in some government offices, conduct public awareness programs about the disabled, and take other steps to assist Afghans with disabilities.
The government and NGOs estimated that there were up to 900,000 mobility-impaired persons, of whom approximately 40,000 were limb amputees. The MoLSAMD stated that it provided financial support to 79,202 individuals with disabilities. The MoLSAMD accorded special treatment to families of those killed in war.
In the Meshrano Jirga, two of the presidentially appointed seats were reserved for persons with disabilities.”
E. Non-governmental Organisations’ reports
1. Landmine and Cluster Munition Monitor
“A survey by the Ministry of Labor and Social Affairs and the International Rescue Committee found an estimated 84 percent unemployment rate among people with disabilities.”
2. Austrian Centre for Country of Origin and Asylum Research and Documentation
“In addition to Afghans who are or continue to be in need of international protection, there are certain Afghans currently outside Afghanistan for whom return would not constitute a durable solution and would endanger their physical safety and well-being, given their extreme vulnerability and nature of their special needs. In the context of return to Afghanistan, extremely vulnerable cases can be divided into two broad categories:
· Individuals whose vulnerability is the result of a lack of effectively functioning family and/or community support mechanisms and who can not cope, in the absence of such structures,
· Individuals who can not cope, either because such support structures are not available or because Afghanistan lacks the necessary public support mechanisms and treatment opportunities.
Against this background, there are Afghans for which UNHCR Afghanistan strongly advises that, at least temporarily, solutions be identified in countries of asylum and that exemptions to obligations to return are made on humanitarian grounds. This may be the case for Afghans who fall into the following categories. Groups of concern are (see upcoming UNHCR paper for details):
· Unaccompanied females,
· Single parents with small children without income and family and /or community support,
· Unaccompanied elderly,
· Unaccompanied children,
· Victims of serious trauma (Including sexual violence),
· Physically disabled persons,
· Mentally disabled persons,
· Person with medical illness (contagious, long term or short term).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
B. Merits
1. The parties’ submissions
(a) The applicant’s submissions
57. Second, the applicant argued that whilst the difficulties faced by persons with disabilities in Afghanistan may not engage Article 3 if they had family support available to them, a person, like the applicant, without close family connections would suffer the full consequences of the discrimination against, and ignorance surrounding, persons with disabilities (see the AIHRC report at paragraph 47 above). He argued that, in the struggle for scarce accommodation and given the length of time that he had been outside of Afghanistan, there was a real risk he would be left seriously disadvantaged and in conditions analogous to those set out in M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 263, 21 January 2011. Thus he contended that he would be left living in the street, without resources or access to sanitary facilities, and without any means of providing for his essential needs. He submitted that the domestic authorities had failed to properly consider that, as a victim of an armed conflict without family members, he was plainly a member of a particularly underprivileged and vulnerable population group in need of special protection (see M.S.S, cited above, § 251). In that regard, he asserted that the Immigration Judge’s statement that he “would have certain disadvantages greater than others by reason of his disability” but that “he would not be alone” because persons with such disadvantages were continuing to exist in Afghanistan (see paragraph 19 above) did not begin to properly consider the issue of his vulnerability.
(b) The Government’s submissions
2. The Court’s assessment
(a) General principles regarding Article 3 and expulsion
(b) The Court’s case-law in respect of Article 3 and humanitarian conditions
(c) Application to the facts of the case
The Court considers it unnecessary to determine what the Immigration Judge’s findings in respect of the applicant’s sisters were and, in particular, whether or not the Immigration Judge implicitly rejected the applicant’s assertions in this regard. The fact is that, neither before the national authorities nor before the Court, has the applicant given any reason why, if he is returned to Afghanistan, he would not be able to make contact with them and seek their support.
i. Enhanced risk of violence
ii. Living conditions
It is, in any event, of greater importance to the Court’s consideration of the applicant’s Article 3 complaint that the applicant remained in Afghanistan after he received his injuries in 2006 for four years until 2010 and was supported throughout that period, during which he also received medical treatment for his injuries. On the evidence before it, the Court is unable to conclude that the applicant’s disabilities have worsened since his departure from Afghanistan. Nor, on the general information before the Court, can it be found that the circumstances that would confront the applicant on return to Afghanistan would, to a determinative degree, be worse than those which he faced during that four-year period. Likewise, although the quality of the applicant’s life, already severely diminished by his disabled condition, will undoubtedly be negatively affected if he is removed from the United Kingdom to Afghanistan, that fact alone cannot be decisive (see N. v. the United Kingdom, cited above, §§ 50 and 51).
II. RULE 39 OF THE RULES OF COURT
FOR THESE REASONS, THE COURT
1. Declares the application admissible unanimously;
2. Holds by four votes to three that there would be no violation of Article 3 of the Convention in the event of the applicant’s removal to Afghanistan; and
3. Decides unanimously 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 remove the applicant until such time as the present judgment becomes final or further order.
Done in English, and notified in writing on 29 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ineta
Ziemele
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Ziemele, David Thór Björgvinsson and De Gaetano is annexed to this judgment.
I.Z.
F.A.
JOINT DISSENTING OPINION OF JUDGES ZIEMELE, DAVID THÓR BJÖRGVINSSON AND DE GAETANO
1. We regret that we are unable to join the majority under operative head no. 2 of the judgment in this case. While it is true that adverse credibility findings were made by the Secretary of State (§ 10) and by the First-tier Tribunal (§ 17) with regard to the applicant’s and his father’s alleged links with Hizb-i-Islami, the central and critical issue in this case was the applicant’s severe disability (amputated lower right leg and penis, and serious injury to his left leg and right hand) and the consequences that would follow from that disability in the event of his deportation to Afghanistan. This was, in reality, the crux of his application for asylum, as well as of his application before this Court (§§ 56-60, and 78-80). Neither these injuries nor their severity has ever been challenged by the domestic authorities, unlike the other side issue relating to his allegation that in Afghanistan he effectively had no family or relatives to return to.
2. In the majority judgment some weight is given to the fact that the applicant has two sisters in Afghanistan, who are both married (§§ 83-84 and 93). They are repeatedly referred to as family members who he may, as is implied, be able to contact upon return to that country and from whom he may be able to get some level of support or assistance. In this regard we point out in the first place that it is somewhat contradictory to suggest as relevant possible limited “familial ties” with his married sisters in Afghanistan, since such ties would not be accepted as relevant “familial ties” under Article 8 of the Convention had his sisters been living in the United Kingdom. In addition, the implication that he may be able to seek help and support from them is highly speculative as there is nothing in the case file indicating that they would be able or willing to provide him with any relevant help and support that might alleviate in a meaningful way the obvious severe hardship the applicant, as a very seriously disabled person, would face upon return to Afghanistan.
3. Nevertheless, the central question is whether the nature of the applicant’s disability coupled with the concrete situation back in Afghanistan engages Article 3. In this respect the instant case does not fall, strictly speaking, within the line of case-law represented by the judgment in N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008. Nor does it fall exclusively within the framework of the Salah Sheekh v. the Netherlands, no. 1948/04, 11 January 2007 and Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, 28 June 2011 line of case-law. The facts of the instant case fall somewhere in between these lines of the Court’s case-law and thus raise a new issue before the Court.
4. In our view, there is no doubt that a disability per se, similar to a serious illness per se, would not automatically raise an issue under, or engage, Article 3. Nevertheless, the Court must look into the character of the disability within the context of the specific facts of a given case. It also needs to assess, given the general situation in the country of origin, how the person with a specific kind of disability might or might not re-settle (see, mutatis mutandis, Salah Sheekh, cited above, § 141).
5. In this regard, we note that the UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers (December 2007) highlighted the fact that there may be persons who will not qualify for asylum but “for whom UNHCR urges States, for humanitarian reasons, to exercise caution when considering their forced return”. Among the “vulnerable”, UNHCR lists persons with medical illness or disability (physical or mental). It specifies that: “Ill or disabled persons who cannot work or live on their own in Afghanistan should not return unless they have effective family and/or community support. ... [T]here are Afghans for which UNHCR strongly advises that, at least temporarily, solutions be identified in countries of asylum and that exemptions to obligations to return are made on humanitarian grounds” (see pp. 78-79 of the Document). The 2009 Eligibility Guidelines continue to note that: “The traditional family and community structures of the Afghan social and tribal system constitute the main protection and coping mechanism for returning Afghan refugees... Those who may face particular difficulties upon return include ... physically and mentally disabled persons...” (see p. 61). The 2009 UK Border Agency Report on Afghanistan in fact refers back to the UNHCR’s 2007 report inviting States to seriously consider the need to return a person with disability to Afghanistan. The 2010 Eligibility Guidelines (§ 41), while they do not specifically discuss difficulties faced by persons with disabilities, note a general worsening of the security situation and the increase of generalised violence in parts of Afghanistan and emphasise the importance of family and community structures for personal safety (§ 44). We also note that these Guidelines do not suggest a different approach to persons with disabilities since they do not seem to address the issue.
6. In a recent study provided for UNHCR and entitled “Vulnerable or invisible? Asylum seekers with disabilities in Europe” (2010) it is noted that: “The specific barriers that persons with disabilities face to accessing protection and assistance when seeking asylum are yet to be recognized. With the exception of provisions for access to social security (Article 24(1)(b)), the 1951 Refugee Convention and its travaux préparatoires (UN Ad Hoc Committee 1950) provide little guidance on a disability-sensitive interpretation of refugee law and there are currently no official guidelines on this matter” (see Research Paper No. 194). We would submit that in light of the Convention on the Rights of Persons with Disabilities, which the United Kingdom ratified in 2009 (§ 36), the assessment of whether return to Afghanistan of the applicant in the instant case complies with Article 3 of the Convention required a disability-sensitive interpretation of the facts and of the application of the Court’s case-law to those facts.