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TG and others (Afghan Sikhs persecuted) (CG)
Factual and Procedural Background
This opinion concerns appeals by four appellants, all citizens of Afghanistan, followers of the Sikh and Hindu religions, against decisions refusing them asylum and related protections in the United Kingdom. The appeals were identified for potential country guidance on the risk faced by these religious minorities upon return to Afghanistan.
The appellants have varying immigration histories involving prior asylum claims, refusals, and appeals. The first appellant initially entered the UK in 2003 as a minor, was refused further leave, and returned voluntarily to Afghanistan in 2008. He re-entered the UK in 2011 with his wife and daughter and claimed asylum, which was refused and appealed. The fourth appellant entered the UK clandestinely in 2006, claimed asylum, and was refused but found credible by the First-tier Tribunal, which nonetheless dismissed his appeal due to the possibility of internal relocation.
The Tribunal heard oral evidence from country experts and considered extensive documentary evidence, including expert reports, country information bundles from both parties, and a letter from the British Embassy in Kabul. The appeals raised issues concerning the risk of persecution or serious harm to Sikhs and Hindus in Afghanistan, the availability and reasonableness of internal relocation, and Article 8 ECHR claims related to family and private life.
Legal Issues Presented
- Whether followers of the Sikh and Hindu religions in Afghanistan face a real risk of persecution or serious harm upon return to Afghanistan per se;
- Whether internal relocation within Afghanistan is a reasonable and viable option for appellants who have suffered persecution in their home areas;
- Whether removal would violate the appellants' rights under Article 8 of the European Convention on Human Rights (ECHR).
Arguments of the Parties
Appellants' Arguments
- All members of the Sikh and Hindu communities in Afghanistan face a real risk of persecution based on their religion and ethnicity.
- The cumulative impact of harassment, discrimination, and violence amounts to serious harm contrary to Article 3 of the ECHR, with insufficient protection available from the state.
- Internal relocation is not reasonable or practical due to the small and declining size of the communities, lack of support, and economic difficulties.
- Women and children within these communities face additional vulnerabilities, including risk of forced conversion, abduction, and educational discrimination.
Respondent's Arguments
- Members of the Sikh and Hindu communities do not face a real risk of persecution or ill-treatment per se; risk assessments must be fact-sensitive and individualised.
- Some harassment and discrimination exist but do not reach the threshold of persecution for the community as a whole.
- Internal relocation within Afghanistan, particularly to Kabul, is a reasonable alternative for many appellants.
- The Article 8 claims were conceded by the Respondent and thus not substantively contested.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| DSG & Others (Afghan Sikhs: departure from CG) Afghanistan [2013] UKUT 148 (IAC) | Consideration of updated evidence leading to departure from earlier country guidance on risk to Sikh and Hindu communities. | Used to assess whether previous guidance remained valid given changes in population and incidents of attacks. |
| K (Risk - Sikh - Women) Afghanistan CG [2003] UKIAT 00057 | Risk assessment for single Sikh women returning to Kabul without male support. | Applied to consider vulnerability of women within the Sikh community. |
| SL and Others (Returning Sikhs and Hindus) Afghanistan CG [2005] UKAIT 00137 | Assessment of persecution and ill-treatment of Sikh and Hindu minorities as a class. | Considered as foundational country guidance, but subject to re-evaluation in light of new evidence. |
| AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC) | Test for sufficiency of state protection and the possibility of additional protection for individuals. | Applied to evaluate whether Afghan authorities provide adequate protection to Sikh and Hindu individuals facing harm. |
| Omoruyi v SSHD (2001) INLR 33 | Definition of persecution on grounds of religion and the necessary elements. | Referenced to clarify the threshold for religious persecution claims. |
| MN and others (Ahmadis - country conditions - risk) Pakistan CG [2012] UKUT 389 (IAC) | Interpretation of EU Directive provisions on religious freedom and persecution. | Used to analyse the nature of interference with religious freedom constituting persecution. |
| SSHD v AH (Sudan) and Others [2007] UKHL 49 | Test for reasonableness of internal relocation. | Applied to assess whether appellants could reasonably relocate within Afghanistan. |
| Januzi v SSHD [2006] UKHL 5 | Factors to consider in internal relocation including medical care, accommodation, and support. | Guided the Tribunal’s holistic assessment of internal relocation viability. |
| MD (Ivory Coast) v Secretary of State for the Home Department [2011] EWCA Civ 989 | Approach to anonymous evidence from diplomatic sources. | Applied to determine the weight to be given to the British Embassy letter. |
| CM (Zimbabwe) v SSHD [2013] EWCA Civ 1303 | Reliance on anonymous evidence in country guidance cases. | Supported the Tribunal’s acceptance of anonymous diplomatic evidence with caution. |
Court's Reasoning and Analysis
The Tribunal carefully considered extensive expert and country evidence, including reports from two qualified experts, Dr Ballard and Dr Giustozzi, and a letter from the British Embassy in Kabul. The experts provided historical, sociological, and political context concerning the Sikh and Hindu communities’ presence and experiences in Afghanistan.
The Tribunal acknowledged the significant decline in the Sikh and Hindu populations in Afghanistan, estimated at around 3,000 individuals, and accepted the cumulative evidence of past persecution, harassment, discrimination, and land seizures. However, it found that the evidence of recent targeted persecution or state-sponsored persecution was limited and did not establish a real risk to all members of these communities per se.
The Tribunal distinguished between general societal discrimination and harassment, which persists, and persecution, which requires a higher threshold of severity and impact. It noted that while harassment and discrimination occur, including verbal abuse, property seizures, and difficulties related to religious practices such as cremation, these do not amount to persecution for the community as a whole.
The Tribunal accepted that some individuals, particularly single women without male family protection, and children facing educational discrimination, may be at greater risk and entitled to protection. It also found that the Afghan government shows some willingness at a high level to protect these minorities, though local police protection is often ineffective or corrupt.
Regarding internal relocation, the Tribunal applied established legal principles requiring a fact-sensitive assessment of whether relocation to areas such as Kabul is reasonable, considering factors like family support, financial means, access to worship, and education. It found that internal relocation may be reasonable for some but not for others, particularly those without family or economic support.
In assessing the appellants individually, the Tribunal found the first three appellants had family support in Kabul and were not at real risk of persecution or serious harm upon return, though their Article 8 claims succeeded. The fourth appellant, lacking family support and economic means, was found unable to reasonably relocate internally and entitled to refugee protection due to real risk of persecution.
Holding and Implications
Holding: The appeals of the first, second, and third appellants are dismissed under the Refugee Convention and Humanitarian Protection but allowed under Article 8 ECHR. The appeal of the fourth appellant is allowed under the Refugee Convention and Article 8 ECHR.
Implications: This decision clarifies that while the Sikh and Hindu communities in Afghanistan face ongoing harassment and discrimination, not all members face a real risk of persecution warranting international protection. Internal relocation within Afghanistan may be reasonable for some individuals depending on their circumstances. The ruling underscores the necessity of individualised assessments rather than blanket assumptions about risk to entire minority groups. The decision does not create new precedent beyond reaffirming and updating existing country guidance in light of recent evidence.
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