S.S. v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
1. The applicant, Mr S.S., is an Afghan national who was born in 1983 and lives in the United Kingdom. He was represented before the Court by Ms U. Sood, counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Kuzmicki of the Foreign and Commonwealth Office. 2. The facts of the case may be summarised as follows. 3. The applicant arrived in the United Kingdom on 25 July 2002 and claimed asylum the following day on the basis of his fear of General Dostum (a warlord of Uzbek ethnicity also referred to as “General Dostam” who currently holds the position of the Chief of Staff to the Commander in Chief of the Afghan National Army, President Hamid Karzai), his commanders and their sons. The applicant claimed that his father had worked as a local police commissioner in Saripool province in northern Afghanistan and as an adviser to General Malik (another warlord of Uzbek ethnicity who is considered to be General Dostum’s rival). The applicant claimed that in 1997, with his father’s assistance, General Malik had helped the Taliban attack General Dostum thereby killing many of his commanders and removing General Dostum from his position as the dominant power holder in the central area of northern Afghanistan. 4. The applicant also claimed that, in April 1998, he had been arrested by the Taliban and then released after the payment of a bribe. 5. Most significantly, the applicant claimed that, after he had been reappointed as military commander of most of the northern provinces of Afghanistan in January 2002, General Dostum had arrested and ill-treated the applicant and his father. The applicant had managed to escape but General Dostum had killed his father. The applicant had fled Afghanistan in fear not only of General Dostum but also his troops and the sons of the commanders who had previously been killed in 1997 by General Malik. He claimed that, while General Malik had security in Afghanistan as a member of the new Afghan Government, in contrast he would have no similar protection. 6. On 30 August 2002, the Secretary of State refused the applicant’s asylum application. The applicant appealed against the refusal of his asylum claim claiming that his return to Afghanistan would violate, inter alia, Articles 2 and 3 of the Convention. 7. In a determination of the 10 January 2003, his appeal was allowed by an Adjudicator at the then Immigration Appellate Authority (“IAA”) who found that the applicant’s account of events had been consistent and that the applicant was a credible witness. The Adjudicator accepted that his father had been a high-ranking member of the military and that the applicant and his father had both faced difficulties and suffered ill-treatment in Afghanistan as a result of his father’s political opinion and activities for General Malik. The Adjudicator found that, given the objective country information and the fact that the applicant’s father had been a conspicuous high-ranking officer, the applicant would be at risk in Sheberghan (the capital of Jowzan province in northern Afghanistan and the most important Uzbek city in Afghanistan) from General Dostum and that the Afghan authorities would not be able to offer him adequate protection there. The Adjudicator also stated that, given the general insecurity and lawlessness of local warlords, he was minded to believe that there was, albeit marginally, a likelihood that the applicant would also be at risk in Kabul. Finally, he found that, even if no such risk arose in Kabul, given the applicant’s age and the general circumstances there it would be unduly harsh to expect him to relocate there upon return to Afghanistan. 8. The Secretary of State subsequently sought permission to appeal to the then Immigration Appeal Tribunal (the “IAT”). 9. On 5 December 2003, the IAT allowed the Secretary of State’s appeal and found that the Adjudicator’s findings on internal flight had been unsustainable. In coming to that conclusion, the IAT had before it a report prepared by Dr Antonio Giustozzi, an expert on Afghanistan, which had predicated the applicant’s safety in Kabul on the basis of his ability to maintain a low profile there. Dr Giustozzi had considered that, while it was not possible to establish with certainty that the applicant would be targeted by his father’s enemies, the applicant would have to take that possibility seriously. Dr Giustozzi had concluded that it was unlikely that the applicant would experience a serious threat from General Dostum or his political party but had considered that “some local commanders might [have an interest in him], depending on the past actions of [the applicant’s] father and especially if it was not possible to target the father directly, because he is already dead or because he has sought refuge elsewhere.” 10. After examining Dr Giustozzi’s report, the IAT found that “as the son of a person whose father was involved with General Malik, the risk today is very low unless General Dostum was unable to exact revenge on his father.” Due to the fact that the applicant’s father had already been killed by General Dostum, the IAT considered that revenge had been exacted, and the applicant would not therefore be at risk. 11. Furthermore, noting that General Malik himself was resident in Kabul, the IAT considered that the applicant could also safely internally relocate to Kabul where single young men would be relatively safe. The IAT found that the possibility of an attack upon the applicant by General Dostum or his followers in Kabul was “remote” and that anyone in Kabul on General Dostum’s behalf would not be interested in pursuing his former enemies because they were defending his office and leading members of his political party in the city. 12. Finally, the IAT did not accept that there was any evidence that General Dostum or his commanders would be interested in pursuing the family members of his former enemies. 13. On 16 January 2004, the applicant was refused permission to appeal to the Court of Appeal. 14. On 28 February 2006, the applicant was detained at Dungavel Immigration Removal Centre pending his removal from the United Kingdom. Removal directions to Afghanistan were cancelled for unknown reasons. On 30 May 2006, the applicant was admitted to hospital before being released to his home address. 15. On 8 July 2009, the applicant submitted further representations to the Secretary of State based upon a report dated 5 June 2009 by Dr Peter Marsden MBE, an expert on Afghanistan. That report summarised the background to and the security situation prevailing in Afghanistan at that time. In respect of the risk from General Dostum, the report stated, inter alia, that: “...the primary risk to S.S arises from the fact that his father may have facilitated the successful entry of General Malik into Mazar-e-Sharif through the provision of strategic, logistics and technical support, drawing on his experience gained while working within the Defence Ministry of the former People’s Democratic Party of Afghanistan Government of 1979-1992. General Dostam may, therefore, have good reason to continue to feel aggrieved over the actions of S.S.’s father and may, subject to considerations of his own power and influence within the current Afghan government, have an interest in targeting S.S., notwithstanding that S.S.’s father may already have been killed by his militia. It is important to note, in this regard, that General Dostam has a reputation for serious human rights abuses and for particular ruthlessness. He would, therefore, have no hesitation in killing S.S. if other considerations did not dictate otherwise. It should be noted in this regard that, although President Karzai has maintained a certain distance from General Dostam because of his human rights record, Dostam has sought respectability and this has been rewarded through various defence-related posts of a largely honorary nature. It is therefore difficult to assess whether General Dostam would risk undermining this by actively seeking S.S. It should nonetheless be noted that his decision to imprison hundreds of Taliban prisoners, in the autumn of 2001, in conditions which were likely to lead to their deaths and to do so under the watch of US forces showed little regard for his international reputation. It would also not be difficult for General Dostam to arrange for S.S. to be killed without this being traced back to him. On the other hand, some of his commanders may be influenced solely by their desire to avenge [General] Malik’s treachery and, while [General] Malik may be too well protected to represent an easy target, may see an opportunity through S.S.’s inability to protect himself, to act out their revenge. It should be stressed that it would be difficult for S.S. to escape detection if he was being actively targeted.” 16. The report commented that the applicant would be entirely vulnerable in Kabul if General Dostum or his supporters were to actively target him. In addition, the report commented upon the IAT’s findings of 5 December 2003 and did not agree that Dr Giustozzi’s report had necessarily indicated that the risk to S.S. was a low one. The report stated: “...it should be noted that there has been, for many decades, a pronounced labelling process in Afghanistan so that people have been identified with members of their families who have taken particular political positions or brought harm to others by virtue of the power they wielded. The individual is thus identified by association with his relatives and it is common practice for revenge attacks to be undertaken against male relatives if the original perpetrator of the action is no longer alive or to be found. It is also important to note that the desire to take revenge can pass through the generations, particularly if the original action which led to such a desire was especially serious. Given that the technical, logistics and strategic support provided by S.S.’s father may have been of significant benefit in enabling General Malik to capture and subsequently facilitate the entry of the Taliban into Mazar-e-Sharif, those who may seek to avenge his role may regard it as sufficiently serious to take revenge against S.S., as his son. I do not regard paragraph 7 of Dr Giustozzi’s report as necessarily indicating that the risk to S.S. of being actively targeted by some local commanders is a low one. As he notes, the wishes of such commanders to actively target S.S. is dependent on the past actions of his father. As these actions were of a potentially very serious nature, the risk to S.S. may be a high one.” 17. The report also set out that, in Dr Marsden’s view, S.S. may be at risk from the Taliban on account of the thousands of Taliban fighters who had died in Mazar-e-Sharif after General Malik had withdrawn his allegiance from the Taliban. However, Dr Marsden clarified that the possibility of a revenge attack upon the applicant from the Taliban had to be set against the fact that the Taliban had not killed him when he claimed that they had arrested him and imprisoned him during their period of control of Mazar-e-Sharif between 1998 and 2001. 18. On 20 January 2010, the Secretary of State refused the applicant’s representations as not amounting to a fresh asylum claim because some of the points he had raised had already been considered in his earlier claim and the remaining points would not have created a realistic prospect of success before an immigration judge. It was not accepted that the applicant had shown that the Taliban would have the motivation, means or opportunity to target him in Kabul, an area outside of their control, particularly in light of the fact that they had not harmed him when they had detained him in 1998. 19. It was further not accepted that General Dostum would still be interested in actively targeting the applicant due to, inter alia, the manner of his escape from detention in 2002; the passage of seven years since his arrest by General Dostum; the fact that General Dostum would now have other priorities; and the fact that General Dostum had already gained revenge by killing the applicant’s father. Furthermore, it was noted that the IAT had, six years earlier, assessed the risk to the applicant as low and it was considered that the risk to him six years later would be even lower. 20. In addition, relying on the reasoning of the IAT determination, the Secretary of State did not accept that, even if General Dostum was interested in the applicant, he would be able to harm him in Kabul. In particular, as General Malik reportedly lived in Kabul and was able to protect himself there, there was no reason to suggest that the applicant would not be able to do the same. It was therefore considered that the applicant had failed to show that his circumstances were more likely to cause him to be harmed than any other ordinary citizen. 21. Finally, it was not accepted that the applicant would be destitute in Kabul as he was no more vulnerable than any other citizen and had shown great resourcefulness in the United Kingdom where he had picked up transferable skills which would be of benefit to him upon return to Afghanistan. 22. On 1 February 2010, the High Court refused to grant the applicant permission to apply for judicial review, stating that it was not arguable that the Secretary of State’s decision not to treat the applicant’s further submissions as a fresh claim was unlawful or irrational, or that those submissions had not been given anxious scrutiny. 23. On 3 February 2010, the United Kingdom Border Agency’s Case Resolution Directorate, set up to consider unresolved asylum cases, gave further consideration to the applicant’s case and decided that it would not be appropriate for the applicant to be granted leave to remain in the United Kingdom bearing in mind, inter alia, his age (because it was not unreasonable to expect the applicant at 25 years of age to adapt to life back in Afghanistan); the fact that, even though he had been in the United Kingdom for seven years, he had been without valid leave to remain throughout that period; his lack of strong ties or family in the United Kingdom; his past failure to maintain contact with immigration authorities; and the lack of any compassionate or compelling circumstances in his case. 24. On 22 February 2010, the Secretary of State set removal directions to Afghanistan for the applicant scheduled to take place on 2 March 2010. Those removal directions were deferred when, on 1 March 2010, the High Court granted the applicant an injunction to prevent his removal from the United Kingdom, pending the hearing of his renewed application for judicial review at the High Court. 25. On 18 March 2010, the High Court refused permission to apply for judicial review further to the renewed permission hearing, thus discharging the injunction. Beatson J noted that there was no new evidence other than Dr Marsden’s report which was of a qualified nature and demonstrated only the conditional nature of the risk to which the applicant would be subject in Afghanistan. In that regard, he stated: “In particular, it was only a risk if General Dostum or his senior supporters decided to target the [applicant] in Kabul. [The applicant’s counsel] relied on the passage of time since the [IAT]’s decision, but it is significant that there is nothing in Dr Marsden’s report to suggest that what was said in the [IAT]’s decision about the risk being low, unless the General had been unable to exact revenge on the father, was changed. What Dr Marsden states is that he does not accept Dr Giustozzi’s report as necessarily indicating that the risk of actively being targeted by local commanders is a low one, and the risk of being targeted may be a high one. These are examples of the qualified nature of his report. Given those qualifications, and the limited extent to which the recent report departs from the earlier expert report submitted on behalf of the claimant, I do not consider that the Secretary of State’s decision that there was no realistic prospect of success before the Tribunal...was Wednesbury unreasonable or otherwise flawed on public law grounds.” 26. On 29 March 2010, the applicant lodged an application before the Court and requested an interim measure under Rule 39 of the Rules of Court to stop his removal to Afghanistan the following day. 27. On 30 March 2010, the Acting President of the Section to which the application was allocated decided to apply Rule 39 of the Rules of Court and to indicate to the Government that the applicant should not be expelled until further notice. 28. It appears that, on 30 March 2010, the day after the applicant lodged his application before the Court, he applied to the Court of Appeal for an injunction to prevent his removal and permission to appeal against the High Court’s refusal to grant permission to apply for judicial review. On 30 March 2010, the Court of Appeal refused his application for an urgent injunction to stop his removal. 29. In support of his application, the applicant’s representatives had obtained a supplementary expert report from Dr Marsden dated 12 April 2010. Dr Marsden set out examples of human rights abuses committed by General Dostum and concluded that, if he sought to avenge the actions of an individual who had acted against his interests, he would have no hesitation in killing him or members of his family. 30. The report further set out the power struggle between General Dostum and General Malik and the significance of General Malik’s actions in removing General Dostum from his position of power in 1997. The report went on to state: “Whilst there is no objective documentation to establish whether S.S.’s father was instrumental in [General] Malik’s successful entry into Mazar-e-Sharif in May 1997, any such involvement, if it was significant to the final outcome would, in my view, be sufficient to justify a very considerable desire on [General] Dostum’s part for revenge. Given this, I would regard it as a reasonable possibility that [General] Dostum would seek to take revenge against S.S., even though revenge has already been exacted against the father. ... ...it should be noted that S.S. has provided evidence of a direct link, by virtue of his position as the son of his father, to a serious grievance which [General] Dostum will inevitably hold against [General] Malik. While it is never possible to provide evidence that the potential perpetrator of targeted violence will opt to give expression to a grievance that he hold, there is a reasonable probability in this case, based on the severity of the original grievance that, subject to S.S.’s father having played a significant role in facilitating the entry of [General] Malik into Mazar-e-Sharif in May 1997, [General] Dostum would have an interest in targeting S.S., who is clearly identified with a specific grievance, albeit indirectly through his father. ...it is not my experience, in monitoring developments in Afghanistan, that the passage of time will necessarily lessen the desire to exact vengeance.” 31. The report also considered that, in Dr Marsden’s view, the applicant would be particularly exposed to targeted violence from the Taliban if, as was likely, he was unable to afford accommodation in Kabul. It further stated that the Taliban may have an additional interest in the applicant given his association with General Malik. 32. On 30 July 2010, the Court of Appeal dismissed the applicant’s application for permission to appeal on the papers, taking the view that the supplementary expert report did not undermine Beatson J’s decision. Hallett LJ stated that: “The issue for me is whether Beatson J, in the light of the information then (and arguably now) available was wrong to refuse permission to review judicially the SSHD [Secretary of State for the Home Department]’s decision to certify. Unfortunately, to my mind, Dr Marsden’s latest report does not truly seem to be providing new material, post dating or undermining Beatson J’s decision. Rather this proposed appeal is an attempt to reargue the material available before Beatson J in a different form.” 33. On 18 January 2011, the Court of Appeal dismissed his renewed application for permission to appeal further to an oral hearing. Tomlinson LJ, with whom both Elias LJ and Ward LJ agreed, stated that he had given both Dr Marsden’s first and supplementary reports anxious scrutiny but did not consider that the supplementary report was any different in substance to his first report. He stated that: “It is true that later in the report...Dr Marsden uses the expression “reasonable probability” rather than “reasonable possibility”, but, looking at the substance of the matter, Dr Marsden is in my view doing no more than to repeat in different language the assessment of the risk that he had proffered in his first report. He relies upon no new developments in Afghanistan from which it is to be inferred that the enthusiasm of General Dostum to exact vengeance upon the applicant for the activities of his father is likely to have increased over time, rather than, as would perhaps be expected, to have waned as other priorities and imperatives have emerged. ... In my judgment Dr Marsden’s second report contains no material which could properly lead this court to reach a conclusion different from that reached by Beatson J.” 34. Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department. 35. Appeals in asylum, immigration and nationality matters were, until 4 April 2005, heard by Adjudicators at the IAA. Section 101 of the Nationality, Immigration and Asylum Act 2002 provided that, with the permission of the IAT, a party to an appeal could apply to the IAT against an Adjudicator’s determination on a point of law. Section 103 of the Nationality, Immigration and Asylum Act 2002 provided that where the IAT had determined an appeal under section 101, a party to the appeal could bring a further appeal on a point of law to the Court of Appeal. 36. 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. 37. Country guidance determinations of both the former IAT and Asylum and Immigration Tribunal (“AIT”) are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the IAT or AIT that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence. 38. In the country guidance determination of PM and Others (Kabul – Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089, the AIT held, inter alia, that, subject to an individual’s personal circumstances, it was unlikely to be unduly harsh (or unreasonable) to expect them to relocate to Kabul if they had established a real risk of serious harm in (and restricted to) areas outside Kabul. 39. In the country guidance determination of RQ (Afghan National Army – Hizb-i-Islami – risk) Afghanistan CG [2008] UKAIT 00013, the AIT held, amongst other matters, that: “Where the risk to a particular appellant is confined to his home area, internal relocation to Kabul is in general available. It would not be unduly harsh to expect an appellant with no individual risk factors outside his home area to live in Kabul and assist in the rebuilding of his country. If an appellant establishes a wider risk, extending beyond the home area, internal relocation is not necessarily available and sufficiency of protection will depend on his individual circumstances and characteristics. In particular (a) internal relocation outside Kabul is unlikely to provide sufficiency of protection as the areas outside Kabul remain under the control of local warlords, and the population is suspicious of strangers; and (b) the safety of internal relocation to Kabul is a question of fact based on the particular history of an individual appellant and of the warlord or faction known to be seeking to harm him.” 40. In the country guidance determination of GS (Article 15 (c): Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044, promulgated on 15 October 2009, the then AIT held that there was not in Afghanistan such a high level of indiscriminate violence that substantial grounds existed 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 Articles 2(e) and 15(c) of Council Directive 2004/83/EC. 41. Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows: “When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” 42. As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held: “Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.” 43. Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits. 44. On 17 December 2010, UNHCR issued the most recent Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan (“the December 2010 UNHCR Guidelines”) and set out the categories of Afghans considered to be particularly at risk in Afghanistan in view of the security, political and human rights situation in the country at that time. 45. Those Guidelines observed: “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. ... 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.” 46. The December 2010 Guidelines further stated: “The well-established practice of blood feuds is rooted in traditional Afghan culture. Blood feuds are conflicts between opposing families, tribes and armed factions, and are often initiated in reaction to perceived violations to the honour of women, property rights, and land or water issues. According to the practice, individuals associated with the family or tribe of the individual seen as the wrongdoer are targeted by the victim’s tribe or family members. Revenge is sought through killing, physically injuring or publicly shaming the perpetrator or individuals related by family or tribe. Blood feuds can be long-running conflicts, lasting for generations, with a cycle of retaliatory violence between parties. Solving a dispute through a formal justice mechanism does not normally put an end to a blood feud. Particularly among Pashtuns, blood feuds can be settled through a formal decision of a jirga – generally an all-male community-based dispute resolution mechanism. A peaceful compromise, such as a bad dadab marriage, may sometimes prevent a dispute from spiralling into a blood feud. In light of the foregoing, UNHCR considers that persons involved in, or targeted because of, a blood feud may, depending on the circumstances of the individual case, be at risk on account of membership of a particular social group. Claims by persons with the aforementioned profiles may, however, give rise to the need to examine possible exclusion from refugee status.”