DISSENTING OPINION OF JUDGE KALAYDJIEVA

I regret to state that I am unable to join the opinion of the majority in the present two cases. The applicants in these cases alleged that, if expelled from the United Kingdom to Afghanistan, they would face a real risk of ill-treatment not only in view of the indiscriminate violence in the destination country, but also because they risked being targeted on account of their earlier collaboration with the international community’s forces operating in Afghanistan at the relevant time – UNAMA (for the first applicant) and the US armed forces and the ISAF (for the second applicant). In their submissions the destination country’s authorities would not be able to afford them protection against this risk.

I am prepared to agree that the Asylum and Immigration Tribunal and the Upper Tribunal examined these issues in accordance with the data on the situation in Afghanistan and domestic guidelines available at the relevant time – 2010 for the first applicant and 2011 for the second. However, it is common knowledge that by the time their cases were examined by the Court, the situation in that country had evolved, and further reliable information had become available for the purposes of examining the risk in question.

It is true that the current humanitarian situation or the risk of general violence in the destination country, and especially in Kabul, are not considered to expose every individual to ill-treatment contrary to Article 3. But while in N. v. the United Kingdom ([GC], no. 26565/05, § 42, 27 May 2008) the Court held 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”, the absence of updated UNHCR official reports does not mean that there is no such risk. High representatives of that organisation have publicly assessed the effect of the mass return of Afghans as its “worst mistake”.

Turning to the alleged specific risk of ill-treatment by insurgents on account of involvement with the international missions in Afghanistan, the current information, including domestic guidelines published in June 2012 and country reports of the United States of America, refers to a campaign of intimidation and indicates that civilian employees of the UN and US missions and NGOs in the country are increasingly targeted by the Taliban, including in Kabul. Between 2006 and 2011 at least twenty-two Afghan interpreters working for US forces, the international community or the UN were killed in different parts of Afghanistan (see paragraphs 50 ‑ 60).

While I find myself unable to follow the logic of the domestic courts that the applicants “would not fall within an enhanced risk category ... given that many Afghan nationals would have worked for the US and international forces” (paragraph 22), I remain equally unconvinced that the disturbing developments and the ability of the Afghan Government authorities to protect the applicants against the alleged risk were sufficiently examined by the Court in the light of the information currently available.

In this regard the applicable standards and principles were outlined in the case of Saadi v. Italy ([GC], no. 37201/06, ECHR 2008) as follows (emphasis added):

“130. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others , cited above, § 108 in fine ).

131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department (see, for example, Chahal , cited above, §§ 99-100; Müslim v. Turkey , no. o 53566/99, § 67, 26 April 2005; Said v. the Netherlands , no. 2345/02, § 54, 5 July 2005; and Al ‑ Moayad v. Germany (dec.), no. o 35865/03, §§ 65-66, 20 February 2007). At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others , cited above, § 111, and Fatgan Katani and Others v. Germany (dec.), no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov , cited above, § 73, and Müslim , cited above, § 68).

132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous paragraph, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see, mutatis mutandis , Salah Sheekh , cited above, §§ 138-149).

133. With regard to the material date , the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion . However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal , cited above, §§ 85 and 86, and Venkadajalasarma v. the Netherlands , no. 58510/00, § 63, 17 February 2004). This situation typically arises when, as in the present case, deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court (see Mamatkulov and Askarov , cited above, § 69). Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive .”

I remain unconvinced that the foreseeable consequences of sending the applicants back to Afghanistan were sufficiently taken into account with regard to the current situation in that country and the way it is likely to develop.