GS (Article 15©)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge P R Lane |
| Judgment Date | 23 July 2009 |
| Neutral Citation | [2009] UKAIT 44 |
| Date | 23 July 2009 |
| Court | Asylum and Immigration Tribunal |
[2009] UKAIT 44
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Mather
SENIOR IMMIGRATION JUDGE P R Lane
SENIOR IMMIGRATION JUDGE Southern
For the Appellant: Mr M Symes, Counsel, instructed by the IAS (Tribunal Unit)
For the Respondent: Mr R Palmer and Mr D Blundell, Counsel, instructed by the Treasury Solicitor
GS (Article 15(c): indiscriminate violence) Afghanistan CG
There is not in Afghanistan such a high level of indiscriminate violence that substantial grounds exist for believing that a civilian would, solely by being present there, face a real risk which threatens the civilian's life or person, such as to entitle that person to the grant of humanitarian protection, pursuant to article 15(c) of the Qualification Directive. GS (Existence of internal armed conflict) Afghanistan CG [2009] UKAIT 00010is no longer to be treated as extant country guidance.
What follows is the determination of the panel. Whilst bearing another signature, the principal work on it, comprising an almost complete draft, was undertaken by Senior Immigration Judge Mather who, since being taken ill, has confirmed that he agrees with the conclusion. The determination concerns the application and scope of Article 15(c) of the Qualification Directive (2004/83/EC) (“the Qualification Directive”), incorporated into the Immigration Rules HC395 in paragraph 339C. In Part 7 of the determination we have summarised our findings, and the guidance from both the European Court in Elgafaji v Staatssecretaris van Justitie (C-465/07) (reported at [2009] 2 CMLR 45), and the Court of Appeal in QD and AH v Secretary of State for the Home Department [2009] EWCA Civ 620.
We have considered the general conditions in Afghanistan. In Part 9, we have explained why, at present, there is not, as a general matter, a serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
We deal with access to Jalalabad in Part 10, and internal flight to Kabul in Part 11. There is a discussion about enhanced risk categories in Part 12.
The appellant is a citizen of Afghanistan. He originally claimed to have been born on 1 January 1990, but, following a social services assessment, a date of birth of 17 August 1989 was recorded. The Immigration Judge who originally heard his appeal observed that, either way, the appellant was over 18 at the time of the appeal.
The appellant arrived in the United Kingdom unlawfully on 3 August 2005. He applied for asylum shortly thereafter but, on 28 November 2007, his application was refused. The formal immigration decision was to remove him as an illegal entrant, with an indication that directions would be given for his removal to Afghanistan.
The appellant appealed. His appeal was heard by Immigration Judge B Lloyd on 18 January 2008. In the determination which followed, the appeal was dismissed on refugee, human rights and humanitarian protection grounds.
The appellant successfully applied for reconsideration.
At an earlier reconsideration hearing, before Senior Immigration Judge Mather sitting alone, both parties agreed that the Immigration Judge had made a material error of law. That is, that when he considered the question of humanitarian protection he did not deal with Article 15(c) of the Qualification Directive. In other words he did not consider whether the appellant would be at real risk of serious harm as the result of “a serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict”.
Following that hearing, the Tribunal issued directions, which were also published as country guidance. The directions recorded the fact that, in a letter dated 7 January 2009, the respondent conceded that:
“for the purposes of International Humanitarian Law (‘IHL’), there is at present an internal armed conflict in Afghanistan, and that for the purposes of IHL, the whole of the territory of Afghanistan is to be treated as being in such conflict.”
For reasons which we will give later, that direction is now of little relevance and consequently no longer falls to be treated as country guidance.
When the matter came before us, Mr Symes did not seek to suggest that the passage of time since the Immigration Judge's determination was such that we should reopen the question of whether the appellant is entitled to be recognised as a refugee, because of any change of circumstances. The matter proceeded before us only on humanitarian protection grounds, and in particular the provisions of Article 15(c). The appellant did not give evidence at the reconsideration hearings. Oral evidence was given by Professor Farrell (see Part 8 below). Although we refer to Article 15(c) throughout much of this determination, because we deal with the European Court's judgement in Elgafaji, in the United Kingdom Immigration Judges are concerned with the similarly worded provision in paragraph 339C, which incorporates Article 15(c) into our domestic law.
The Immigration Judge found that the appellant was not a credible or reliable witness.
The appellant had claimed that his parents had been murdered in furtherance of a land dispute with the local commander, Gul Karim, and the warlord, Hazrat Ali. He expressed fear that he would also become their victim. That was rejected. It was also the appellant's case that his sister is married and living with her husband in Pakistan; and his brother died whilst in Dubai. The respondent accepts, as expressly conceded by Mr Palmer, that the appellant comes from Jalalabad, in the province of Nangarhar, and that he has no family remaining in Afghanistan. It is our task to consider this appeal on the basis that the appellant is a young man, about whom nothing has been proved save that he is from Jalalabad, is over 18, and has no immediate family in Afghanistan.
Mr Symes gave a very brief account of the recent history of Afghanistan, which we quote in order to put this determination into context. In paragraph 37 of his skeleton he said that:
“The conflict is protracted: Afghanistan has endured ‘almost constant warfare since the Soviet invasion in 1979’. The fracture of the Mujahedin following their successful overthrow of the puppet Soviet regime in 1992 led to civil war. After the formation of the Taliban in 1994, there was civil war between them and the Northern Alliance between 1996 and 2001. The current conflict was triggered by the US led invasion of Afghanistan in late 2001. The current phase of internal armed conflict has been ongoing since 2002.”
Paragraph 339C of the Immigration Rules HC 395 provides:
“339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and
(iv) he is not excluded from a grant of humanitarian protection.
Serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
(iv) 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 appellant is not excluded from a grant of humanitarian protection.
Paragraph 339C is in part derived from the Qualification Directive, including Article 2 and the definition of serious harm in Article 15(c).
The following provisions of the Qualification Directive are relevant, or referred to later:-
“ Recital
(10) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.
(26) Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.
Article 2
Definitions
For the purposes of this Directive:
…
(e) ‘person eligible for subsidiary protection’ means 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, and to whom Article 17(1) and (2) do not apply, and is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country;
Article 8
1. As part of the application for internal protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of...
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