CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 29 janvier 2013

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margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s31E56244 { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .sF3B96856 { width:11.87pt; display:inline-block } .sF7ECFE89 { width:209.1pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }     FOURTH SECTION             CASE OF S.H.H. v. THE UNITED KINGDOM   (Application no. 60367/10)             JUDGMENT       STRASBOURG   29 January 2013   FINAL   08/07/2013   This judgment has become final under 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 1.     The case originated in an application (no. 60367/10) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Afghan national, Mr S.H.H. (“the applicant”), on 18 October 2010. 2.     The applicant, who had been granted legal aid, was represented by Duncan Lewis Solicitors, a law firm practising in London, assisted by Mr   M.   Symes, counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Kuzmicki of the Foreign and Commonwealth Office. 3.     The applicant alleged that, if expelled from the United Kingdom to Afghanistan, he would face a real risk of ill-treatment contrary to Article 3 of the Convention. 4.     On 29 October 2010, the Vice-President of the Fourth Section decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court that the applicant should not be expelled to Afghanistan pending the Court’s decision. 5.     On 3 January 2011, the Vice-President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1) and to grant the applicant anonymity (Rule 47 § 3 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The facts of the case, as submitted by the parties, may be summarised as follows. 7.     The applicant is an Afghan national from Nangarhar province in eastern Afghanistan who was born in 1979 and lives in the United Kingdom. 8.     He arrived in the United Kingdom on 30 August 2010 and claimed asylum on 1 September 2010. The basis of his claim was that he would be arrested and killed by the Afghan authorities because, after the death of his father, he had taken over the role of the military commander of 25 men for Hizb-i-Islami. He also claimed that Hizb-i-Islami would force him to become a suicide bomber. Finally, he claimed that he had been seriously injured during the course of a rocket launch in Afghanistan four years earlier and had been left disabled. He relied on the fact that his lower right leg and penis had both been amputated and he had a false limb; that his left leg and right hand had been seriously injured; and that he suffered from depression. 9.     On 17 September 2010, his asylum application was refused by the Secretary of State. 10.     First, due to the inconsistencies in the applicant’s claim and the vagueness of his account, it was not accepted either that the applicant’s father had ever been involved with Hizb-i-Islami or that the applicant had ever been a Hizb-i-Islami commander. 11.     Second, it was not accepted that he would be of any adverse interest to the Afghan authorities upon return given, inter alia , that he had not demonstrated any Hizb-i-Islami involvement; that he had remained in hospital for two months after the rocket attack without any problems; that he had returned from hospital to his home village where he had lived for six months without any problems from the authorities; and that, in any event, a number of ex Hizb-i-Islami members occupied high positions within the Afghan Government and the objective evidence demonstrated that even former commanders did not have any problems with the Afghan authorities if they made it clear that they were no longer working with Gulbuddin Hekmatyar (Hizb-i-Islami’s leader). 12.     Third, it was not accepted that he would be at risk from Hizb ‑ i ‑ Islami given that he had claimed that they had supported him when he had been injured; that they had provided him with funds to travel to the United Kingdom; and the fact that, in his original screening interview with the United Kingdom immigration authorities, he had only made reference to his fear of the Afghan authorities and had not mentioned any risk from Hizb-i-Islami. 13 .     The Secretary of State did not consider that the absence of a medical report on the applicant’s physical injuries would prejudice his asylum application from being decided fairly because it was not disputed that his injuries existed and any report would not be able to corroborate how his injuries had been sustained. Further, it was not considered that the applicant’s disabilities could support his claim to be at risk upon return because the applicant himself was uncertain as to who had been responsible for the rocket attack which had caused his injuries. 14.     Although it was acknowledged that the medical facilities in Afghanistan were limited and underdeveloped, it was noted that the applicant had previously received hospital care there and it was considered that any further medical care would similarly be available to him upon return. Additionally, it was noted that the applicant’s family remained in Afghanistan and it was considered that there was no reason to suggest that they would not adequately support and assist him upon return. Consequently, it was not accepted that his case was “very exceptional” or that it would cross the high threshold of severity such as to engage Article 3 within the meaning of N. v. the United Kingdom [GC], no. 26565/05, 27   May 2008 . 15.     Finally, with reference to the country guidance case of GS (Article   15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT   00044 (see paragraphs 28-29 below), it was not accepted that the applicant would be personally at enhanced risk of indiscriminate violence in Afghanistan as a person with an amputated limb. To that end, the Secretary of State noted that there were an estimated 800,000 mobility impaired persons in Afghanistan of whom 40,000 were limb amputees. The applicant had shown the resolve and ability to travel to the United Kingdom via various methods of transport and had resided in Afghanistan for four years following his injuries. As such, he had not shown that he would be at enhanced risk or that there was no viable relocation option open to him in Afghanistan. 16 .     The applicant appealed against the refusal of his asylum claim claiming that his return to Afghanistan would violate, inter alia, Article 3 of the Convention. In his appeal statement, he claimed that he had no one in Afghanistan to support him and that he would find life extremely hard in Afghanistan. He claimed that he had lost contact with his two sisters who were both married and living with their own families in Afghanistan. 17 .     On 4 October 2010, the First-tier Tribunal (Immigration and Asylum Chamber) (“the First-tier Tribunal”) dismissed the applicant’s appeal for substantially the same reasons as the Secretary of State as set out above. The Immigration Judge accepted certain aspects of the applicant’s claim stating: “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.” 18.     The Immigration Judge found, in the alternative, that even if the applicant had at some stage been a member of the Hizb-i-Islami, he had not shown that he would not be able to return to Afghanistan and make his peace with the Afghan authorities as someone who had left Hizb-i-Islami a number of years earlier. The Immigration Judge considered that there was no reason why the applicant could not return to Afghanistan to resume living either in Nangarhar or in Kabul without any fear from the authorities. 19 .     In relation to the applicant’s disability, the Immigration Judge commented that it might “well be that there would be limited prospects for him in Afghanistan in view of his injuries”, and stated that:   “[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.” 21.     On 7 October 2010, a Senior Immigration Judge of the First-tier Tribunal refused permission to appeal because the grounds of appeal only pleaded to be allowed to remain in the United Kingdom but did not identify any arguable error of law and there was no other good reason to grant permission to appeal. 22.     On 13 October 2010, the Upper Tribunal of the Immigration and Asylum Chamber (“the Upper Tribunal”) refused permission to appeal because no arguable error of law could be found in the Immigration Judge’s determination. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Primary legislation 23.     Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the NIA Act 2002”), provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department. 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. 25.     Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. 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 27 .     Country guidance determinations of both the former AIT and the Upper Tribunal 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 AIT or Upper Tribunal 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. 1.     GS (Article 15 (c)   : Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 28 .     In the country guidance determination of GS , of 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 (see paragraphs 33-34). 29 .     In considering the concept of a group of people at enhanced risk of indiscriminate violence, the AIT further commented that: “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 30.     In HK and others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC), the Upper Tribunal, in a determination dated 21   October 2010, concluded, inter alia , that the evidence as to the level of indiscriminate violence affecting civilians generally in Afghanistan which had become available since GS (see paragraphs 28-29 above) was not sufficient to show that the guidance given by the AIT in GS was no longer to be regarded as valid. 31.     In AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC) , promulgated on 1 February 2012, the Upper Tribunal found that there could be no doubt that the material before it revealed a deterioration in the security situation in Afghanistan since   HK and others .   However, the Upper Tribunal found that there was no evidence to suggest that there was any material difference to the risk to which the adult civilian population was subject in Afghanistan. 32 .     In AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC), promulgated on 18 May 2012, the Upper Tribunal reconsidered the evidence as to the level of indiscriminate violence affecting ordinary civilians which had become available since GS (see paragraphs 28-29 above). The Upper Tribunal concluded as follows: (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 33 .     Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted: “the Qualification Directive”) has the objective, inter alia , of ensuring EU Member States apply common criteria for the identification of persons genuinely in need of international protection (recital six of the preamble). 34 .     In addition to regulating refugee status within the European Union legal order, it 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. “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.” 35.     In case C-465/07, Elgafaji v. Staatssecretaris van Justitie , 17   February 2009, the Grand Chamber of the then Court of Justice of the European Communities was asked to give a preliminary ruling on the meaning of Article 15(c) of the Qualification Directive and the criteria for its application. The court considered it appropriate to compare the three types of “serious harm” defined in Article 15 of the Directive and continued: “...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 36 .     The United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006. Twenty-six Contracting States have ratified both the Convention and the Optional Protocol. A further seven Contracting States have ratified only the Convention. The United Kingdom ratified the Convention on 8 June 2009 and the Optional Protocol on 7 August 2009. 37.     Article 1 provides that: “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.” 38.     Article 11 provides that: “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.” 39.     Article 15, where relevant, provides that: “... 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.” 40 .     Article 16, where relevant, provides that: “... 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”) 41 .     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. 42.     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. 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.” 43 .     The Guidelines further recorded a worsening security environment in certain areas of the country and characterised the situation as one of generalised violence in the Helmand, Kandahar, Kunar and parts of Ghazni and Khost provinces. The Guidelines stated the following: “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...” 44 .     In relation to internal relocation, the Guidelines stated that: “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 45 .     The United Nations Assistance Mission in Afghanistan (“UNAMA”) Mid Year Report 2011 on the Protection of Civilians in Armed Conflict (“the UNAMA Report”) covers the period from 1 January 2011 and 30 June 2011 and is compiled, inter alia, to monitor the situation of civilians in Afghanistan. In the Executive Summary, the UNAMA Report states: “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”) 46.     In its Concluding Observations on Afghanistan dated 7 June 2010, the UNCESCR stated: “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”) 47 .     In its Report on the Situation of Economic and Social Rights in Afghanistan – IV, Qaws 1388 (November/December 2009), the AIHRC stated: “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) 48 .     The Afghanistan National Disability Action Plan examined the challenges faced by persons with disabilities in Afghanistan and set national objectives and strategies for the Afghan Government and other stakeholders to help improve the lives of persons with disabilities throughout Afghanistan. It observed, inter alia, the following: “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 49 .     In its 2011 Country Report on Human Rights Practices – Afghanistan, published in May 2012, the State Department observed: “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 compa