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PROCEDURE

1.  The case originated in two applications (nos. 70073/10 and 44539/11) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court by two Afghan nationals, Mr H. and Mr B. (“the applicants”).

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4. The applicants alleged that, if expelled from the United Kingdom to Afghanistan, they would face a real risk of ill-treatment contrary to Article 3 of the Convention. [...]

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       I.  THE CIRCUMSTANCES OF THE CASE

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A.  The first applicant

2.  The first applicant, originally from Wardak province in central Afghanistan, arrived in the United Kingdom [...] and claimed asylum on 3 November 2008.

3.  The basis of his asylum claim was his fear of both the Taliban and Hizb-i-Islami (“HII”) due to his perceived connections with the Afghan Government and the United Nations (“the UN”). [...]

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B.  The second applicant

4.  The second applicant [...] and arrived in the United Kingdom on 2 June 2011.

5.  He claimed asylum on 3 June 2011 on the basis of his fear of the Taliban due to his work as an interpreter for the United States armed forces and the International Security Assistance Force (“ISAF”) from February 2009 until April 2011. [...]. [...] he had worked with US forces in Kunar province in north-eastern Afghanistan.

II. RELEVANT DOMESTIC LAW AND PRACTICE

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      III.  RELEVANT EUROPEAN UNION LAW

6.  In addition to regulating refugee status within the European Union legal order, the Council Directive 2004/83/EC of 29 April 2004 (... “the Qualification Directive”) makes provision for granting subsidiary protection status. Article 2(e) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin and who is unable, or, owing to such risk, unwilling to avail himself of the protection of that country.

7.  “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”.

        IV. RELEVANT DESICIONS FROM OTHER JURISDICTIONS

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        V. RELEVANT INFORMATION ABOUT AFGHANISTAN

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THE LAW

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II.  ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION

8.  The applicants complained that their removal to Afghanistan would expose them to a real risk of being subjected to treatment in breach of Article 3 of the Convention and/or a violation of Article 2 of the Convention. [...]

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B.  Merits

1.  The parties’ submissions

a. The applicants

i. The first applicant

9.  The first applicant contended that his expulsion to Afghanistan would expose him to a real risk of ill-treatment due to his past work for the UN. [...]

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69. Additionally, the first applicant argued that, in any event, it would be unduly harsh for him to internally relocate to Kabul or elsewhere in Afghanistan because of his poor mental health. [...]

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ii. The second applicant

10.  The second applicant contended that his expulsion to Afghanistan would put his life at risk due to his particular profile as a person who had worked as an interpreter for the US forces.

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75. In response to the Government’s arguments that he could relocate safely to Kabul (...), he maintained that the security situation in Kabul was tenuous and that the police would be unable to protect him from any risk of targeting from the Taliban. Furthermore, he argued that he would end up destitute in Kabul without relatives, social connections, property or land there. [...]

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2.  The Court’s assessment

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b. Application of the general principles to the facts of the individual cases

92.  In considering whether the applicants have established that they would be at real risk of ill-treatment in Afghanistan, the Court observes, as a preliminary matter, that they have not claimed that the levels of violence in Afghanistan are such that any removal there would necessarily breach Article 3 of the Convention. The Court further observes that the issue of the levels of violence in Afghanistan has been thoroughly examined by the Asylum and Immigration Tribunal and the Upper Tribunal in a series of country guidance cases (see paragraphs 29-32 above) examining general issues of risk on return to that country. Those tribunals’ conclusions that the levels of violence are not such as to create a general risk of ill?treatment to all persons returned to Afghanistan were reached on the basis of all the relevant evidence as to conditions in the country. Moreover, by promulgating four country guidance determinations on this issue between October 2009 and May 2012, the AIT and Upper Tribunal have shown their readiness to keep this conclusion under review and to refine their guidance on safety on return in light of new information as it becomes available.

9311.  There is no evidence before the Court to suggest that it should reach a different conclusion. Consequently, the Court does not consider that there is currently in Afghanistan a general situation of violence such that there would be a real risk of ill-treatment simply by virtue of an individual being returned there.

94.  Both applicants have instead concentrated on the risk of ill?treatment which, they allege, they would suffer at the hands of the Taliban owing to their support of the international community. They argued that, as a result of their previous work for the UN and the US forces respectively, they would automatically be at risk throughout Afghanistan as a whole, including Kabul.

125.  Before examining the individual elements of the applicants’ claims, the Court observes that the Government propose to remove the applicants to Kabul. In the light of this, and the fact that neither applicant has submitted anything to suggest that he would not be able to gain admittance and settle there, the Court does not consider it necessary to examine the risk to them in any other part of the country outside Kabul and will examine the risk to the applicants returning to Afghanistan on this basis. The Court will therefore first examine whether or not there are substantial grounds to believe that the applicants would face a real risk in Kabul simply as a result of their previous involvement with the international forces in Afghanistan. It will then consider the individual aspects of their claims including their ability to remain in Kabul.

96.  The Court observes that the parties to the case did not dispute the conclusion of the December 2010 UNHCR Guidelines that, inter alia, individuals associated with, or perceived as supportive of the Afghan Government and the international community fall within a potential risk category and require a particularly careful examination of the risks to them upon return to Afghanistan (see paragraph 42 above). All the evidence before the Court supports this assessment. Indeed, the evidence paints a disturbing picture of the attacks carried out by the Taliban and other armed anti-government forces in Afghanistan on civilians with links to the international community. The UNAMA 2010 Report refers to the “alarming trend” of the assassination of civilians by anti-government forces (paragraph 48) and the UNAMA 2011 Report which indicates that the targeted killing of civilians persisted in 2011 (see paragraph 49 above). The December 2010 UNHCR Guidelines depict a “systematic and sustained campaign” by armed anti-Government groups to target civilians associated with, or perceived as supporting, the Afghan Government or the international community (see paragraph 43 above). The USSD Report also describes the targeting by insurgents of foreigners, NGO workers and government officials (see paragraph 51 above). Similarly, the OGN reports that insurgents were continuing to conduct a campaign of intimidation and assassination (see paragraph 52 above).

97.  However, in the context of the examination of the risks to the applicants in Kabul, it is significant that the December 2010 UNHCR Guidelines indicate that, to date, the majority of targeted attacks and assassinations by armed anti-government groups have occurred in those groups’ strongholds (paragraph 43 above). Furthermore, the Landinfo Report, whilst noting that the Taliban has increased their capacities on a small scale in Kabul (paragraph 57), also observes that killings of low profile collaborators are not being reported in areas where they are not in control such as Kabul (paragraph 58). Despite suggestions that the number of targeted assassinations is increasing in areas previously considered to be more secure such as Kabul (see the December 2010 UNHCR Guidelines at paragraph 43 and 45 above), the Court considers that there is insufficient evidence before it at the present time to suggest that the Taliban have the motivation or the ability to pursue low level collaborators in Kabul or other areas outside their control.

98.  There is also little evidence that the Taliban are targeting those who have, as requested by them, already stopped working for the international community and who have moved to other areas. In that regard, the Court refers to the Landinfo report, which states that those who have fled and have given up their jobs do not appear to have been actively targeted in the cities and that those who no longer collaborate with the international forces are a low priority for the Taliban, who devote their limited assets in the cities to high profile targets, from serving government officials upwards (see paragraph 57 above).

99.  The Court considers that the UNHCR December 2010 Guidelines corroborate those views. In particular, in contrast to the earlier July 2009 Guidelines which pointed to a more general threat to humanitarian workers and those working for the UN (see paragraph above), the UNHCR December 2010 Guidelines are more nuanced. They set out that persons associated with, or perceived as supportive of, the Government and the international community and forces “may, depending on the individual circumstances of the case, be at risk on account of their (imputed) political opinion, particularly in areas where armed anti-Government groups are operating or have control” (see paragraph 43 above), indicating that not every person with links to the international community and forces would automatically be at risk in Afghanistan (see also the reports set out at paragraphs 52 and 53-58 above).

100.  Therefore, having regard to all of the above, the Court considers that individuals who are perceived as supportive of the international community may be able to demonstrate a real and personal risk to them from the Taliban in Kabul depending on the individual circumstances of their case, the nature of their connections to the international community and their profile. However, the Court is not persuaded that the applicants have established that everyone with connections to the UN or the US forces, even in Kabul, can be considered to be at real risk of treatment contrary to Article 3 regardless of their profile or whether or not they continue to work for the international community.

101. As a result, the Court must go on to examine whether or not each applicant’s connections and profile is such that his return to Afghanistan would contravene Article 3 of the Convention.

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i. The first applicant

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105. First, four years have passed since the first applicant stopped working for the UN, as requested by the Taliban, and left Afghanistan. [...] [...] he had worked mainly in Kabul. There is no reason to suggest either that he had a high profile in Kabul such taht he would remain known there after the passage of time or that he would be recognised elsewhere in Afghanistan as a result of his work.

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109. Following an overall examination of the first applicant’s case, the Court concludes that the first applicant has failed to adduce evidence capable of demonstrating that there are substantial grounds for believing that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 if removed to Afghanistan.

ii. The second applicant

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114. In relation to the second applicant’s claim that he would be unable to relocate to Kabul because he would be destitute there, the Court recalls that humanitarian conditions in a country of return could give rise to a breach of Article 3 of the Convention in a very exceptional case where the humanitarian grounds against removal are “compelling” (N. v. United Kingdom [GC], no. 26565/05, § 42, 27 May 2008). [...] The Court finds that the second applicant, a healthy single male of 24 years of age who speaks excellent English and left Afghanistan in April 2011 when already adult (...), has failed to submit any evidence that his removal to Kabul, an urban area under Government control, where he still has family members including two sisters, would engage Article 3 of the Convention.

115. Finally, the Court rejects the second applicant’s claims that he would not be safe in Kabul because of his profile and the security situation there. [...] In that regard, the Court notes that, until early 2011, the second applicant worked as an interpreter in Kunar province where he had no particular profile. He has not submitted any evidence or reason to suggest that he would be identified in Kabul, an area outside of the control of the Taliban [...]

116. [...] the Court concludes that the second applicant has failed to demonstrate that his return to Afghanistan would be in violation of Article 3 of the Convention.

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FOR THESE REASONS, THE COURT

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3.  Holds by six votes to one there would be no violation of Article 3 of the Convention in the event of the removal of either of the applicants to Afghanistan; […]