SL (Returning Sikhs and Hindus) Afghanistan CG

JurisdictionEngland & Wales
JudgeJ Barnes,Vice President
Judgment Date07 October 2005
Neutral Citation[2005] UKIAT 137
CourtImmigration Appeals Tribunal
Date07 October 2005

[2005] UKIAT 137

IMMIGRATION APPEAL TRIBUNAL

Before:

Mr J Barnes (Vice President)

Miss B Mensah (Vice President)

Mrs W Jordan

Between
SL and Others
Appellants
and
Secretary of State for the Home Department
Respondent
Representation:

For the 1 st and 2 nd appellants: Ms Amanda Jones of Counsel, instructed by Bhogal Lal, Solicitors

For the 3 rd appellant: Mr M Saleem, a Solicitor of Malik & Malik (232 High Road)

For the respondent: Mr J McGirr, a Home Office Presenting Officer

SL and Others (Returning Sikhs and Hindus) Afghanistan CG

Afghanistan – country guidance as to whether as a class Afghan Sikhs and Hindus are entitled to international surrogate protection – Held: (1) there is no evidence to support the claim that the Afghan Sikh and Hindu minorities in Afghanistan are persecuted or treated in breach of their protected human rights under Article 3 of the European Convention by the State or that the degree of societal discrimination against them is such as to give rise to any such persecution or treatment of them as a class (2) following UNHCR guidance their status as Afghan Sikhs and Hindus is a factor to be taken into account in assessing individual claims on a case by case basis

DETERMINATION AND REASONS
1

This determination gives country guidance in relation to the situation of Sikhs and Hindus who are citizens of Afghanistan and is based upon objective evidence from a number of international sources including the Country Information and Policy Unit (CIPU) report of October 2004 (which summarises or extracts information from a number of the other international sources), United States State Department report for 2003 published in February 2004, the United Nations General Assembly Security Council Report of 12 August 2003, the ECRE Report of April 2003 giving guidelines of treatment of Afghan Asylum Seekers and Refugees in Europe, and various Amnesty International and Human Rights Watch Reports. In addition, there were a number of statements from a Sikh leader in Kabul to whom we shall refer simply as RS. We do this because Ms Jones requested that his name should be anonymised, although we observe that he makes it clear that he has in the past given statements to various bodies and none of his statements before us contained such a request. Nevertheless it seems to us to be in accordance with the general willingness on the part of the judiciary as a matter of policy to grant anonymity to parties in asylum and human rights appeals. These statements are dated respectively 3 December 2003, 23 April 2004, 14 June 2004, 9 February 2005 and 25 February 2005. There are finally a report dated 13 December 2004 of an interview with RS by a member of the British Embassy in Kabul supplemented by a further statement dated 1 February 2005 as to the methodology employed in that interview.

2

In the course of argument, there has been extensive reference to three recent reported Tribunal decisions concerned with the situation of Afghan Sikhs in which the evidence of RS, as it then stood, was considered. These decisions are respectively IB and TK (Sikhs – risk on Return – Objective Evidence) Afghanistan [2004] UKIAT 00150, KK (Evidence – Late Filing – Proper Notice) Afghanistan [2004] UKIAT 00258 and an unreported decision of the Tribunal in the case of Sarla and Others (AS 58985-03) heard in December 2004. We mention this latter case only in the context that there was then reference to the report of the interview of RS by a British Embassy official which the Secretary of State was unable to produce so that the Tribunal in that and the three other appeals associated with it saw no reason to differ from the approach which had been established in the preceding two reported cases. We shall later in the course of this determination refer more extensively to the reported cases and, in particular, that of IB and TK heard in March 2004 where there was extensive consideration of the then existing objective evidence.

3

We turn now to summarise the claims of the three individual appellants and the findings of the Adjudicators in respect of them.

The claim of the first Appellant – Mr L
4

The first appellant, to whom we shall refer as Mr L, is a citizen of Afghanistan born on 25 April 1980 and is of Sikh ethnicity and religion. He originates from Jalalabad and arrived in the United Kingdom on 8 June 2002 when he applied immediately for asylum. That application was refused for the reasons set out in a letter dated 29 July 2002 and on 31 July 2002 the Secretary of State issued directions for his removal to Afghanistan following refusal of leave to enter after refusal of his asylum application. He appealed unsuccessfully against that decision to an Adjudicator and his appeal was heard and dismissed on 27 February 2003 by Ms G Elliman, an Adjudicator. She found his account of his past history in Afghanistan credible but the appeal was dismissed because there had then been a change in the circumstances in Afghanistan following the overthrow of the Taliban and the effect of that change was, she held, that the appellant no longer had any basis for claiming a well-founded fear of persecution or of breach of his protected human rights if returned. There was no appeal against that decision but new representatives subsequently applied on 16 June 2003 for discretionary leave and, although initially refused, there was then an application for judicial review. The upshot of this was that the certificate that the fresh claim was manifestly unfounded was withdrawn by the respondent and a fresh refusal notice of 19 November 2003 substituted, giving a right of appeal which has led to the present appeal on human rights grounds only. It was heard on 3 March 2004 by another Adjudicator, Mrs S Kebede. She, too, dismissed his appeal on the basis that the objective evidence before her did not show that the situation of Sikhs had changed from that which applied at the previous hearing before Ms Elliman and that in consequence there were no substantial grounds to believe that he would be subjected to torture or to inhuman or degrading treatment or punishment contrary to Article 3 of the European Convention. His appeal under Article 8 concerned with whether or not he had a established a family life in the United Kingdom, following a late marriage to an Afghan Sikh who had subsequently been granted refugee status, was also dismissed on the alternative grounds that the Adjudicator did not consider that he had established a family life in the United Kingdom but that, if she was wrong in that respect, removal would be proportionate having regard to the ratio in Mahmood v SSHD [2001] Imm AR 229 because he would be able to make an appropriate application for leave to enter as a spouse if now returned.

5

Mr L then sought permission to appeal against that decision which was initially refused by the Tribunal but subsequently allowed by Silber J on statutory review in the following terms:

“The Immigration Appeal Tribunal did not consider the applicant's ground of appeal that the Adjudicator did not consider the risk of persecution in the applicant's home area of Jalalabad as the Adjudicator appeared to focus on the position in Kabul (see paragraph 19 of the determination).”

6

At an earlier hearing Miss Jones had applied for permission to vary the grounds of appeal before the Tribunal to those contained in the application for statutory review in substitution for the original grounds which would otherwise have stood following the statutory review decision. Those grounds included challenges to the Article 8 decision and a complaint that there had been a failure to consider other articles of the European Convention raised, especially Article 9. In both her written skeleton argument filed in advance of the hearing and in her oral submissions, however, Miss Jones relied exclusively on the challenges under Article 3, making no reference to any other articles of the European Convention so that we consider her effectively to have abandoned those challenges. This seems to us to be entirely appropriate since, on any approach, we take the view that we would be required to find that removal was proportionate even if in breach of Article 8 rights by reason of the application of the ratio in Mahmood, and there is no evidence that there is such a flagrant denial of the right of Sikhs or Hindus to practice their own religions in Afghanistan as would support a successful claim under Article 9 of the European Convention. We have therefore confined our review to Article 3 issues and the grounds of appeal taken from the grounds of application for statutory review which are relevant to such issues. The challenges raised in the grounds of appeal may be summarised as follows: (a) that the background evidence in existence at the date of the hearing before the second Adjudicator was such that her findings as to lack of risk were unsustainable as a matter of law; (b) that the Adjudicator erred in failing to address herself to the situation in the home area or to consider internal flight; and (c) that the second Adjudicator wrongly and unnecessarily limited her consideration of the background material to that which had come into existence after the first Adjudicator's determination.

7

We now summarise the factual basis of Mr L's claim.

8

The first Adjudicator summarises the basis of his claim at paragraph 2.1 of her determination in the following terms:

“The basis for the appellant's claim is set out in the SEF, a separate statement and in the interview. He says that, as a Sikh, he has a fear of persecution in Afghanistan because of his religious beliefs. He is from Jalalabad and he ran a shop there selling textiles and other goods. The appellant, in his statement, details problems that Sikhs have had for many years at the hands of the Muslims in Afghanistan, including lack of access to education, lack of...

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29 cases
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