The necessary elements in order to apply Article 15(c) QD are:
Figure 2. Article 15(c) QD: elements of the assessment.
In order to apply Article 15(c) QD, the above elements should be established cumulatively.
The following is a summary of the relevant conclusions concerning the situation in Afghanistan:
Armed conflict: Over the summer months of 2021, the Taliban’s offensive advanced rapidly and resulted in them taking over almost all of the country. ANSF personnel often withdrew from positions without engaging in confrontations. In their statements following the takeover of Kabul in August 2021, the Taliban declared the war to be over. However, in some areas resistance armed groups were organised and armed confrontations took place. ISKP also continues to be active in the country.
Civilian: Article 15(c) QD applies to a person who is not a member of any of the parties to the conflict and is not taking part in the hostilities, potentially including former combatants who have genuinely and permanently renounced armed activity. The applications by persons under the following profiles should be examined carefully. Based on an individual assessment, such applicants may be found not to qualify as civilians under Article 15(c) QD. For example:
It should be noted that actively taking part in hostilities is not limited to openly carrying arms but could also include substantial logistical and/or administrative support to combatants.
It is important to underline that the assessment of protection needs is forward-looking. Therefore, the main issue at hand is whether the applicant will be a civilian or not upon return. The fact that the person took part in hostilities in the past would not necessarily mean that Article 15(c) QD would not be applicable to him or her.
Indiscriminate violence: The increased level of violence seen over the summer months has been followed by a significant drop in confrontations and in the associated indiscriminate violence after the takeover by the Taliban. However, these developments are very recent and changes in trends may be observed in the future. Limitations with regard to reliable reporting from the country should also be taken into account. Therefore, at the time of writing, it is not considered feasible to assess the situation in Afghanistan in terms of protection needs under Article 15(c) QD.
As the security situation in Afghanistan evolves, in order to make a forward-looking assessment with regard to the level of risk due to indiscriminate violence in a situation of armed conflict, the following elements could be taken into account on the basis of relevant and up-to-date COI:
Serious and individual threat: In the context of the ‘sliding scale’, each case should be assessed individually, taking into account the nature and intensity of the violence in the area, along with the combination of personal circumstances present in the applicant’s case. Certain personal circumstances could contribute to an enhanced risk of indiscriminate violence, including its direct and indirect consequences. While it is not feasible to provide exhaustive guidance what the relevant personal circumstances could be and how those should be assessed, the following are highlighted as possible examples of circumstances which may impact the ability of a person to assess and/or avoid risks related to indiscriminate violence in a situation of an armed conflict:
Threat to life or person: The risk of harm as per Article 15(c) QD is formulated as a ‘threat to a civilian’s life or person’ rather than as a (threat of) a specific act of violence. Some of the commonly reported types of harm to civilians’ life or person in Afghanistan include killings, injuries, abductions, disabilities caused by landmines, etc.
Nexus: The nexus ‘by reason of’ refers to the causal link between the indiscriminate violence and the harm (serious threat to a civilian´s life or person) and includes: