UK - Upper Tribunal (Asylum and Immigration Chamber), AK (Article 15(c)) Afghanistan CG, [2012] UKUT 163 (IAC)

The Court made clear that judicial decision makers should first deal with the issue of refugee eligibility, before moving to consider subsidiary protection eligibility and lastly Article 3 ECHR (para. 154).

In respect of following ECtHR cases, the Court held that even if there is a recent ECtHR judgement based on comprehensive Country of Origin Information (COI), a domestic court is not bound to reach the same findings as the European Court (para. 195).

The Court found that the situation in Afghanistan was worsening and the number of civilian deaths was rising. It noted that various EU States, and Switzerland, consider parts (or all) of Afghanistan to reach the Article 15(c) threshold. However the Court ultimately concluded that the level of indiscriminate violence in the country taken as a whole (or in any province) is not at such a high level as to mean that, within the meaning of Article 15(c) of the Qualification Directive, a civilian, solely by being present in the country, faces a real risk which threatens his life or person (para. 197). The Court noted however that the fact that levels of violence continue to rise means that the situation needs to be kept under careful review (para. 248).

In principle, there is scope for Article 15(c)’s “sliding-scale” to protect recognised risk categories such as those set out by UNHCR in its 2010 Eligibility Guidelines (i)-(xi), and also “intermediate categories” of individuals (para. 209).

In respect of internal protection, when assessing whether Kabul city would be a viable option, it is necessary to take into account the level of violence in that city and also the difficulties experienced by that city’s poor; these considerations will not “in general” make return to Kabul unsafe or unreasonable, however an individual assessment is required in each case (para. 243). 

This position is different for women (both in relation to Kabul and other potential places of internal protection): in general, it is unreasonable to expect lone women and female heads of household to relocate internally in Afghanistan.