JOINT DISSENTING OPINION OF JUDGE S ZIEMELE, DAVID THÓR BJÖRGVINSSON AND DE GAETANO

1. We regret that we are unable to join the majority under operative head no. 2 of the judgment in this case. While it is true that adverse credibility findings were made by the Secretary of State (§ 10) and by the First-tier Tribunal (§ 17) with regard to the applicant ’ s and his father ’ s alleged links with Hizb-i-Islami, the central and critical issue in this case was the applicant ’ s severe disability (amputated lower right leg and penis, and serious injury to his left leg and right hand) and the consequences that would follow from that disability in the event of his deportation to Afghanistan. This was, in reality, the crux of his application for asylum, as well as of his application before this Court (§ § 56- 60, and 78 - 80). Neither these injuries nor their severity has ever been challenged by the domestic authorities, unlike the other side issue relating to his allegation that in Afghanistan he effectively had no family or relatives to return to.

2. In the majority judgment some weight is given to the fact that the applicant has two sisters in Afghanistan , who are both married (§§ 83-84 and 93). They are repeatedly referred to as family members who he may, as is implied, be able to contact upon return to that country and from whom he may be able to get some level of support or assistance. In this regard we point out in the first place that it is somewhat contradictory to suggest as relevant possible limited “familial ties” with his married sisters in Afghanistan , since such ties would not be accepted as relevant “familial ties” under Article 8 of the Convention had his sisters been living in the United Kingdom . In addition, the implication that he may be able to seek help and support from them is highly speculative as there is nothing in the case file indicating that they would be able or willing to provide him with any relevant help and support that might alleviate in a meaningful way the obvious severe hardship the applicant, as a very seriously disabled person, would face upon return to Afghanistan.

3. Nevertheless, the central question is whether the nature of the applicant ’ s disability coupled with the concrete situation back in Afghanistan engages Article 3. In this respect the instant case does not fall, strictly speaking, within the line of case-law represented by the judgment in N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008. Nor does it fall exclusively within the framework of the Salah Sheekh v. the Netherlands , no. 1948/04, 11 January 2007 and Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07, 28 June 2011 line of case-law. The facts of the instant case fall somewhere in between these lines of the Court ’ s case-law and thus raise a new issue before the Court.

4. In our view, there is no doubt that a disability per se , similar to a serious illness per se , would not automatically raise an issue under, or engage, Article 3. Nevertheless, the Court must look into the character of the disability within the context of the specific facts of a given case. It also needs to assess, given the general situation in the country of origin, how the person with a specific kind of disability might or might not re-settle (see, mutatis mutandis , Salah Sheekh , cited above, § 141).

5. In this regard, we note that the UNHCR ’ s Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers (December 2007) highlighted the fact that there may be persons who will not qualify for asylum but “for whom UNHCR urges States, for humanitarian reasons, to exercise caution when considering their forced return”. Among the “vulnerable”, UNHCR lists persons with medical illness or disability (physical or mental). It specifies that: “ Ill or disabled persons who cannot work or live on their own in Afghanistan should not return unless they have effective family and/or community support. ... [T]here are Afghans for which UNHCR strongly advises that, at least temporarily, solutions be identified in countries of asylum and that exemptions to obligations to return are made on humanitarian grounds” (see pp. 78–79 of the Document). The 2009 Eligibility Guidelines continue to note that: “The traditional family and community structures of the Afghan social and tribal system constitute the main protection and coping mechanism for returning Afghan refugees... Those who may face particular difficulties upon return include ... physically and mentally disabled persons...” (see p. 61). The 2009 UK Border Agency Report on Afghanistan in fact refers back to the UNHCR ’ s 2007 report inviting States to seriously consider the need to return a person with disability to Afghanistan . The 2010 Eligibility Guidelines (§ 41), while they do not specifically discuss difficulties faced by persons with disabilities, note a general worsening of the security situation and the increase of generalised violence in parts of Afghanistan and emphasise the importance of family and community structures for personal safety (§ 44). We also note that these Guidelines do not suggest a different approach to persons with disabilities since they do not seem to address the issue.

6. In a recent study provided for UNHCR and entitled “Vulnerable or invisible? Asylum seekers with disabilities in Europe ” (2010) it is noted that: “The specific barriers that persons with disabilities face to accessing protection and assistance when seeking asylum are yet to be recognized. With the exception of provisions for access to social security (Article 24(1)(b)), the 1951 Refugee Convention and its travaux préparatoires (UN Ad Hoc Committee 1950) provide little guidance on a disability-sensitive interpretation of refugee law and there are currently no official guidelines on this matter” (see Research Paper No. 194). We would submit that in light of the Convention on the Rights of Persons with Disabilities, which the United Kingdom ratified in 2009 (§ 36), the assessment of whether return to Afghanistan of the applicant in the instant case complies with Article 3 of the Convention required a disability ‑ sensitive interpretation of the facts and of the application of the Court ’ s case-law to those facts.

7. To sum up, the applicant ’ s submission was not that all persons with disabilities should not be returned to Afghanistan . His claim was that Article 3 would, if returned, be engaged in his specific case in view of the nature of his disability and the lack of family or social infrastructure for him in Afghanistan (§ 57). We cannot agree that the Immigration Judge examined properly this claim (§§ 19 and 20). The Judge drew crucial inferences from the applicant ’ s prior stay in Afghanistan and his ability to make a journey to the United Kingdom . It is not clear why these negative inferences were drawn since there can also be many other different explanations as to the applicant ’ s initial stay in Afghanistan (following the injuries) and his decision to leave the country. These could be linked to his precarious state of health. In our view, and precisely because the applicant ’ s disability and the facts surrounding it were not examined in sufficient detail, we are left to speculate on the questions that should have been properly dealt with at a national level taking into consideration the need to adopt a disability-sensitive approach in such cases.