The applicant submitted an application for international protection in 2016 in Belgium, which was rejected by the Commissioner General for Refugees and Stateless Persons (hereinafter “CGRS” or “the Commissioner General”) in 2018, as the applicant did not establish proof of his residence in the village he claimed he came from. The applicant did not appeal this decision.

In 2019, the applicant filed a subsequent application, which the Commissioner General found inadmissible. The applicant had changed his declarations regarding his place of birth, which he then claimed was Peshawar, Pakistan, and his place of residence in Afghanistan, but he was again unable to bring sufficient proof to support his new statements. The applicant did not appeal this decision but, in 2020, he submitted a second subsequent application for international protection. He then claimed that he lived his whole life in Pakistan, until his family had to move to Afghanistan following floods. He added that he had had trouble with the Taliban due to his wish to join the army, which led him to move back to Pakistan where he was harassed, arrested and ill-treated by the police. The applicant explained that he then could not move back to Afghanistan out of fear of being killed by the Taliban. The CGRS also found this application to be inadmissible. The applicant appealed against this decision before the Council for Alien Law Litigation (hereinafter “CALL”), which rejected the action in 2021. In 2022, the applicant submitted a third subsequent application for international protection on the same grounds as the previous one, which the Commissioner General found inadmissible again.

In the contested decision, the CGRS noted that the last application was to be considered inadmissible because no new element, which significantly increased the likelihood of the applicant being eligible for refugee status, was added. Therefore, the assessment remained the same, namely that the applicant did not sufficiently substantiate his statement of origin and other claims in the second and third subsequent applications.

Based on the “EUAA Country Guidance Afghanistan of April 2022” and the “COI Focus Afghanistan. Security situation on 5 May 2022”, the CGRS added that the security situation in Afghanistan did not reach the threshold of indiscriminate violence required to grant the applicant subsidiary protection under Article 15(c) of the recast Qualification Directive. It noted specifically that the number of incidents targeting civilians had sorely decreased since the Taliban took over, which led different actors to withdraw from the conflict, and added that the applicant failed to bring sufficient proof of specific individual circumstances that would justify him facing a real risk of serious harm upon return to his country of origin.

The Commissioner added that the poor socio-economic and humanitarian situation in Afghanistan did not trigger the granting of subsidiary protection under Article 15(b) of the recast Qualification Directive because they did not amount to breaches of Article 3 of the ECHR as mentioned in CJEU and ECtHR case law.

Finally, the Commissioner argued, based on EUAA COI, that the fact that the applicant had resided in the West for a few years did not suffice to substantiate his need for international protection upon returning to Afghanistan. In this regard, the CGRS pointed out once more the applicant’s failure to bring proof of individual circumstances which could justify his fear of persecution.

In his appeal, the applicant put forward that the Taliban had issued a message in March 2022 showing that a majority of returnees feared violence. He also argued that the country of information used by the CGRS in its decision did not include the most recent updates in regard of the security situation in Afghanistan.
 

The CALL focused on the westernisation issue. It argued that Western Afghans do not constitute a specific social group because their westernisation is not an innate characteristic as required under the Belgian Aliens Act and CJEU case law. However, the CALL proceeded to explain that westernisation can fall within the grounds of persecution due to ‘religion’ and ‘political conviction’ if westernisation is an expression of a religious or political opinion. Based on EUAA country guidance and ECtHR case law, the CALL added that ‘returners’ may be considered non-Afghan or non-Muslim and therefore face persecution in the form of arbitrary arrests, illegal detentions, and prosecution. Finally, the CALL noted that the COI used by the CGRS at the time of issuance of the contested decision was indeed not up-to-date and considered that the Commissioner General had failed to undertake sufficient investigations regarding the applicant’s westernisation.

Thus, the CALL annulled the contested decision and sent the case back to the CGRS.