TG and Others (Afghan Sikhs persecuted)

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeUpper Tribunal Judge Hanson
Judgment Date17 Aug 2015
Neutral Citation[2015] UKUT 595 (IAC)

[2015] UKUT 595 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE Hanson

UPPER TRIBUNAL JUDGE Plimmer

Between
TG (1)
GD (2)
GJ (3)
PM (4) (Anonymity Order Made)
Appellants
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr Bazini (Counsel) on behalf of the first, second and third Appellants on 31 st March 2014. No attendance on 17 th August 2015.

Miss Bayati (Counsel) on behalf of the fourth Appellant on 31 st March 2014 and Mr Warnapala, Solicitor, on 17 th August 2015.

For the Respondent: Mr Tarlow (Senior Home Office Presenting Officer).

TG and others (Afghan Sikhs persecuted) Afghanistan CG

Risk to followers of the Sikh and Hindu faiths in Afghanistan:
  • (i) Some members of the Sikh and Hindu communities in Afghanistan continue to suffer harassment at the hands of Muslim zealots.

  • (ii) Members of the Sikh and Hindu communities in Afghanistan do not face a real risk of persecution or ill-treatment such as to entitle them to a grant of international protection on the basis of their ethnic or religious identity, per se. Neither can it be said that the cumulative impact of discrimination suffered by the Sikh and Hindu communities in general reaches the threshold of persecution.

  • (iii) A consideration of whether an individual member of the Sikh and Hindu communities is at risk real of persecution upon return to Afghanistan is fact-sensitive. All the relevant circumstances must be considered but careful attention should be paid to the following:

    • a. women are particularly vulnerable in the absence of appropriate protection from a male member of the family;

    • b. likely financial circumstances and ability to access basic accommodation bearing in mind

      • — Muslims are generally unlikely to employ a member of the Sikh and Hindu communities

      • — such individuals may face difficulties (including threats, extortion, seizure of land and acts of violence) in retaining property and / or pursuing their remaining traditional pursuit, that of a shopkeeper / trader

      • — the traditional source of support for such individuals, the Gurdwara is much less able to provide adequate support;

    • c. the level of religious devotion and the practical accessibility to a suitable place of religious worship in light of declining numbers and the evidence that some have been subjected to harm and threats to harm whilst accessing the Gurdwara;

    • d. access to appropriate education for children in light of discrimination against Sikh and Hindu children and the shortage of adequate education facilities for them.

  • (iv) Although it appears there is a willingness at governmental level to provide protection, it is not established on the evidence that at a local level the police are willing, even if able, to provide the necessary level of protection required in Refugee Convention/Qualification Directive terms, to those members of the Sikh and Hindu communities who experience serious harm or harassment amounting to persecution.

  • (v) Whether it is reasonable to expect a member of the Sikh or Hindu communities to relocate is a fact sensitive assessment. The relevant factors to be considered include those set out at (iii) above. Given their particular circumstances and declining number, the practicability of settling elsewhere for members of the Sikh and Hindu communities must be carefully considered. Those without access to an independent income are unlikely to be able to reasonably relocate because of depleted support mechanisms.

  • (vi) This replaces the county guidance provided in the cases of K (Risk – Sikh — Women) Afghanistan CG [2003] UKIAT 00057 and SL and Others (Returning Sikhs and Hindus) Afghanistan CG [2005] UKAIT 00137 .

TABLE OF CONTENTS

Paragraphs

Appellants' immigration history

2–4

Issues for country guidance

5–6

Country evidence

7–8

Introduction to expert and their reports

9–13

Background to Sikhs and Hindus in Afghanistan

• Population size

15–20

• The historical position of Sikhs and Hindus in Afghanistan

21–22

• Country guidance decisions

23–26

The current situation – developments since 2005

• Dr Ballard's reports

27–32

• Dr Giustozzi's reports and evidence

33–42

• UNHCR

43

• Other reports

44–49

• Evidence relied upon by the Secretary of State

50–60

Submissions

61–62

Legal framework

63–70

Discussion

• Country expert evidence and letter from the British Embassy

71–77

• General approach

78–80

• State sponsored persecution

81

• Serious harm – non-state actors

82–84

• Harassment and discrimination

85–89

• Sufficiency of protection

90

• Women

91–93

• Children

94–95

• Land seizures

96–101

• Cremation

102–105

• Temple

106–108

• Employment opportunities

109–111

• Position of the Afghan Government on returnees

112–114

• Internal relocation

115–118

Conclusions

119

Application of country guidance to these Appellants

120–136

Decision

137

Appendices

Pgs 55–60

DECISION AND REASONS
1

The Appellants are all citizens of Afghanistan. These appeals have been identified for potential country guidance on the risk on return for followers of the Sikh and Hindu religions in Afghanistan.

Appellants' immigration history
2

The first appellant entered the United Kingdom on the 26 th January 2003. He was granted exceptional leave to remain until 31 December 2005 when he attained 18 years of age. On 30 th November 2005 he applied for further leave to remain, which was refused on 10 th May 2007. His appeal against that decision was dismissed by Immigration Judge Milligan-Baldwin in a determination dated 8 th October 2007. On 20 th May 2008 he applied for voluntary departure and on approval left the United Kingdom on 11 th June 2008. The first appellant claims to have left Afghanistan again in July 2011 and to have re-entered the United Kingdom with his wife and daughter (the second and third appellants respectively) on 4 th December 2011, without leave. He claimed asylum on arrival, which was refused on 4 th April 2012. His appeal against the refusal was dismissed on 13 th June 2012, although on 7 th January 2013 the Upper Tribunal set aside the decision of the First-tier Tribunal and directed that the matter should be heard afresh.

3

The fourth appellant entered the United Kingdom in the back of a lorry in December 2006 and claimed asylum at Croydon on the 18 th December 2006. This was refused on 16 th January 2007 by the Secretary of State. His appeal was heard by Immigration Judge Foudy who, in a determination dated 13 th March 2007, found him to be a credible witness who had a well-founded fear of persecution in Jalalabad by non-state actors on account of his Sikh religion. The appeal was, however, dismissed as the Judge concluded that relocation to Kabul was possible as there is a Sikh community in that city into which he could integrate.

4

Further representations were received from the fourth appellant and rejected by the Secretary of State on 26 th March 2010 who concluded that he can relocate to Kabul and that the health problems that he and his wife suffer were not so severe so as to engage Articles 2 or 3 ECHR. The claim under Article 8 ECHR was also rejected in relation to the fourth appellant, his wife, and their daughter on the basis of her academic studies.

Issues for country guidance
5

These appeals were listed as a potential country guidance case in order to determine a number of agreed issues which we construe to be (a) whether the current situation in Kabul is such that there would be at risk of persecution for followers of the Sikh and Hindu religion if removed per se and, if not, (2) whether relocation for those appellants who have been found to have suffered persecution in their home areas will be unduly harsh and, if not, (c) whether their Article 8 ECHR rights would be violated if removed. As the Article 8 issue was conceded before us there has been no need to consider this element of the appeals further.

To enable us to address these issues it has been necessary to consider the situation generally for Afghan Sikhs and Hindus in Kabul.

6

This determination, to which we have both contributed, takes account of all the oral and documentary material before us, including the written and oral arguments of both parties.

Country evidence
7

We had the benefit of a significant amount of both oral and written country evidence. The appellants' respective representatives helpfully worked together to provide a single comprehensive bundle of country evidence for the hearing on 14 th March 2014. Legal Justice Solicitors, instructed by TG in March 2015, filed a further bundle on 28 th May 2015, which has been copied to all parties who were then invited to provide any further information they wished the Tribunal to consider in relation to the country situation. Warnapala & Company filed an additional bundle on the 26 th June 2015. There was no attendance on behalf of TG at the hearing on 17 th August 2015 as Legal Justice Solicitors confirmed they had no additional submissions to make that required their attendance, which was in accordance with a direction of the Tribunal. Mr Warnapala did attend but added little to the written evidence although confirmed he had no issue or point of dispute with the content of the bundle filed by Legal Justice Solicitors. Mr Tarlow maintained the Secretary of State's' position and provided no additional evidence for the Tribunal to consider.

8

The evidence before us is considered within the body of the determination and details of the sources are set out more fully in Appendices A, B and C. This provides a full list of all material before the Upper...

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