A, Afghan national of Tajik ethnicity and who last resided in Herat, was rejected asylum by decision of 20 July 2016 and a return order was issued against him. The SEM based its decision on lack of credibility of the applicant's statements and lack of proof.

Under appeal, the Federal Administrative Court first held that there were no procedural shortcomings in the case, after entry into force of the revised asylum legislation on 1 March 2019. The FAC also noted the inconsistencies in statements and declarations as provided by the applicant with regard to facts and circumstances of the claim.

However, the FAC held that there is proof of the applicant having worked as interpreter for the US armed forces, belonging to a risk group but since there is no collective persecution of interpreters working for Western or international troops in Afghanistan an applicant must prove he/she is at risk within the meaning of article 3 of the Asylum Law. The SEM rejected the applicant's request as not credible and ordered the expulsion.  However, if the expulsion is not possible, the SEM may grant provisional admission to the territory.

By decision of 18 July 2016, the SEM considered that the return to Herat is reasonable and enforceable. Under appeal, the FAC reiterated that in its judgement of 13 October 2017 it ruled that the security and socio-economic situation in Afghanistan ahs deteriorated since the last assessment in a leading decision of 2011 and that the situation in many parts of the country is so difficult that is to be considered unreasonable to implement the return. Additionally, the FAC noted the US and Taliban agreement of January 2020 did not lead to any pacification. The FAC concluded that the situation in Afghanistan is, in principle,­ to be regarded as threatening and the implementation of the expulsion must therefore be regarded as unless particularly favourable conditions (a viable network of relations, the possibility of securing the minimum subsistence level, secure housing situation, good health status) are met that the expulsion to Kabul can exceptionally be assumed to be reasonable. The FAC held that in another reference judgement it as found that the city of Mazar-i-Sharif was more stable and calm compared to other places and ruled that a return is possible when favourable circumstances are met.

With regard to the situation in Herat, the FAC mentioned that a situational analysis was published in 2011 and in that judgement it was found that the situation is less dangerous in Herat than in other cities of Afghanistan and that a return is possible when favourable conditions are met. The FAC reassessed the current situation based on update country of origin reports, including two EASO COI reports: Afghanistan Security Situation­, September 2020 and Afghanistan: Key socio-economic indicators, Focus on Kabul City, Mazar-e Sharif and Herat City, August 2020 and held that the security and socio-economic situation has worsened in the last years and enforcement of return must be considered unreasonable. In addition, the FAC noted that according to various reports, the COVID-19 outbreak particularly affected the city of Herat. However, when particularly favourable conditions are met, it is exceptionally considered reasonable to carry out the return.

In the case of the applicant, the FAC observed that the applicant does not have sufficient links within the meaning of the case law and no favourable conditions are met in his case. The FAC rejected the appeal with regard to the negative decision on the application for international protection, but allowed the appeal against the return to Afghanistan because the removal is unreasonable and ordered provisional admission to be granted.