Torture or inhuman or degrading treatment or punishment
GUIDANCE NOTE
Last update: January 2023
Some profiles of applicants from Afghanistan may be at risk of torture or inhuman or degrading treatment or punishment. In such cases, there would often be a nexus to a reason for persecution falling under the definition of a refugee, and those individuals would qualify for refugee status. However, with reference to cases where there is no nexus to a Convention ground, the need for subsidiary protection under Article 15(b) QD should be examined.
Healthcare
In itself, the general unavailability of healthcare is not considered serious harm meeting the requirements of inhuman or degrading treatment under Article 15(b) QD in relation to Article 6 QD, unless there is intentional conduct of an actor, such as the intentional deprivation of the applicant of appropriate healthcare.
The actor requirement may be satisfied in specific cases of denial of healthcare, such as in the case of women denied access to healthcare due to not being accompanied by a mahram, not wearing a hijab, or not being allowed to be seen by a male healthcare professional, or in the case of some persons with physical disabilities or mental health problems, who may experience stigmatisation. In such cases, a nexus to a reason for persecution may also be substantiated and refugee status may be granted. If nexus to a reason for persecution is not substantiated, Article 15(b) QD would apply.
Socio-economic conditions
In themselves, general poor socio-economic conditions are not considered to fall within the scope of inhuman or degrading treatment under Article 15(b) QD, unless there is intentional conduct of an actor.
When these socio-economic conditions are the result of an intentional conduct of an actor (e.g. forced evictions), these conditions may qualify under Article 15(b) QD in relation to Article 6 QD, following an individual assessment.
Such conditions may also increase the risk of persecution or other serious harm, such as child marriage or sale of children, where the actor requirement under Article 6 QD would also be met.
In some of those cases, a nexus to a reason for persecution may also be substantiated and refugee status may be granted instead.
Arbitrary arrests and treatment in detention
In cases where the prosecution or punishment is grossly unfair or disproportionate, or where a person is subjected to prison conditions which are not compatible with respect for human dignity, a situation of serious harm under Article 15(b) QD can occur.
It should be highlighted that in some cases of individuals facing the risk of arrest or detention in Afghanistan, there would be a nexus to a reason for persecution falling under the definition of a refugee, and those individuals would qualify for refugee status. If nexus to a reason for persecution is not substantiated, Article 15(b) QD would apply.
Exclusion considerations may be relevant.
Corporal punishments
Corporal punishment would meet the requirements of serious harm under Article 15(b) QD.
Where there is no nexus to a reason for persecution under the refugee definition, the risk of being subjected to corporal punishments may qualify under Article 15(b) QD.
Exclusion considerations may be relevant.
Criminal violence
A real risk of violent crime, such as abductions, robberies, murder would meet the requirements under Article 15(b) QD.
Where there is no nexus to a reason for persecution under the refugee definition, the risk of violent crime such as the above may qualify under Article 15(b) QD.
Other circumstances
Other cases for which a real risk of serious harm under Article 15(b) QD may exist are, for example, some situations under the profile of 3.16 Children, 3.18.2 Land disputes, etc.