Removal of Sikh families to Afghanistan: Religious Minority and Ill-Treatment Risk Assessment.
ECtHR – Asylum seekers – Vulnerability – Freedom of religion –– Removal to the country of origin – Article 3 – Ill-treatment risk assessment.
In the A.S.N. and Others v. The Netherlands case, the ECtHR held that there would be no violation of Article 3 in case of removal of families belonging to the Sikh religious minority to Afghanistan. Despite the fact that the size of the Sikh community in the country is shrinking to few thousands because of their systematic exposure to discrimination with regard to employment and political representation and, more generally, to intimidation and intolerance within the Afghan society, the Strasbourg judges held that the applicants failed to reach the severity threshold in order to fall within the scope of Article 3. Therefore, the ECtHR saw no ground to depart from the conclusion reached by the Dutch authorities who retained that, even though the applicants belong to a “vulnerable minority group”, they had failed to make plausible their fear of ill-treatments upon return to Afghanistan.
A. Facts and Ruling
On 25 February 2020, the European Court of Human Right (hereinafter ECtHR or the Court) rejected the joint application of two Afghani families who applied for asylum in the Netherlands on the basis of the risk of ill-treatments of Sikh people in Afghanistan. The case put forward two crucial issues: first of all, the importance of clarifying the distinction between persecuted groups and vulnerable groups as well as the threshold of proof required to fall within one or the other category; secondly, how to assesses and address the risk of persecution with regard to persons that belong to a group recognized as vulnerable in the national asylum policy, such as Afghan Sikhs in the Netherlands, but who fail to reach the severity threshold in order to fall within the scope of Article 3 of the European Convention of Human Rights (hereinafter ECHR or the Convention), which has been consistently interpreted by the ECtHR as implicitly implying the principle of non-refoulement. The ECtHR saw no ground to depart from the conclusion reached by the national authorities, who are entrusted with a wide margin of appreciation with regard to the assessment of the specific characteristics required to establish the risk of persecution for members of vulnerable groups.
1. The facts and the decisions of the Dutch authorities
The applicants alleged that their removal to Afghanistan would violate their right to life under Article 2 of the ECHR and expose them to a real risk of ill-treatments in breach of Article 3 ECHR.
Application no. 68377/17 (husband and wife on behalf of their two children, both minors) concerns a request for asylum rejected by the Dutch authorities on account of the lack of credibility of the applicants’ fear of persecution. They claimed that the wife’s sister had been kidnapped on her way from the Gurdwara (the Sikh temple) and that the whole family had been victim of aggression and threats because of their religion. The Dutch authorities rejected their asylum applications on the ground, namely, that they failed to establish that they had left the country recently and that they still feared persecution in Afghanistan. Moreover, with regard to the risk of ill-treatment in breach of Article 3, the Dutch authorities held that their hometown, Kabul, was not “the most extreme case of general violence” and that, even though the applicants belong to a “vulnerable minority group”, under Netherlands asylum policy, “they had failed to make plausible their fear of treatment contrary to Article 3 of the Convention by not submitting ‘specific individual characteristics’ (…) nor had it transpired that human rights violations had occurred in their ‘immediate circle’” (para. 21).
Application no. 530/18 (father, mother, two children, both minors, and the children’s grandmother) was also rejected on account of a lack of credibility. The applicants claimed to have fled the country after three people forced their way into their home. The intruders had beaten the grandmother’s husband, who died later, and attempted to kidnap the mother. They also claimed to have been constantly subjected to abuse and harassment because of their adherence to the Sikh religion. As was the case with application no. 68377/17, the Dutch authorities contended that the applicants had left Afghanistan for a protracted period of time before requesting asylum. Even though they unequivocally displayed the linguistic characteristics of Afghans, knowing both Punjabi, but also Dari as well as Pashtu in the case of the father, they did not appear to have an up-to-date and wide knowledge of the country. Moreover, the Dutch authorities held that the events that pushed the family to leave the country were full of contradictions and inconsistencies. Therefore, even though it was believed that the applicants were Afghan Sikhs, a vulnerable minority group under Netherlands asylum policy, they had failed to make plausible their fear of ill-treatment because their “asylum requests included neither ‘specific individual characteristics’ nor circumstances experienced by others as Sikhs in their ‘immediate circle’” (para. 46).
2. The ECtHR decision: vulnerable groups v. compelling humanitarian grounds against removal
The ECtHR held, by four votes to three, that the removal of the applicants to Afghanistan would not amount to violation of Article 3 of the Convention. The Court based its decision on three main points.
First of all, the Court confirmed its earlier case law on removal of Afghans(most notably H. and B. v. the United Kingdom, Application nos. 70073/10 and 44539/11). It held that, even though Afghanistan is a country that is still affected by a non-international armed conflict, the general security situations is not such that a general risk of ill-treatment, in breach of Article 3 of the Convention, exists for all persons returned there. In addition, the Strasbourg judges acknowledge that Sikhs in Afghanistan represent a group which is often discriminated against in many ways and situations, in particular, with regard to employment and political representation and, more generally, to societal ill-treatments, harassment, intimidation and intolerance, which some sources attribute to Muslim extremism. However, having regard to the efforts carried out by the Afghan authorities in favor of the Sikh minority – police protection during funeral ceremonies, land for a cremation site, possibility to build places of worship – the Court held that Sikhs in Afghanistan are not systematically exposed to ill-treatments. As a result, it depends entirely on the circumstances of the individual case at stake – defined by the Court as “further special distinguishing features of the applicants” – to establish if an Afghan Sikh may or may not have international protection needs.
Second, in establishing whether the applicants fulfill the special distinguishing features test, the Court, on the one hand, underlined that past ill-treatments is a strong indication of future risks of treatment contrary to Article 3 and, on the other hand, noted that the Deputy Minister of Security and Justice found the applicants’ stories to lack credibility. In order to solve this issue, the Court relied on the general principle that the national authorities are best placed to assess both the facts and the credibility of the applicants because they have the “opportunity to see, hear and assess the demeanour of the individuals concerned” (para. 116). Therefore, given that the applicants’ case had been thoroughly examined by domestic authorities at different levels and that they have highlighted the lack of credibility of the applicants’ stories’, the ECtHR saw no ground to depart from their conclusion.
Third, with regard to the foreseeable consequences of returning the applicants to Afghanistan, the Court first specified that the absence of past ill-treatments does not automatically mean that there would not be such a risk in the future. It concluded that the applicants had not established substantial grounds for believing that, in case of removal, they would be exposed to a real risk of being subjected to treatment in breach of Article 3. The Strasbourg judges reiterated that, in general, Sikhs in Afghanistan could not be considered a group systematically exposed to an ill-treatment practice. With regard to the applicants’ individual situation, the Court held that the severity threshold –needed to be met in order to fall within the scope of Article 3 – had not been satisfied. The absence of contact with persons in Afghanistan and the lack of accommodation, employment and adequate healthcare if returned (circumstances which were not taken into account by the Dutch authorities in their assessment) were insufficient to meet the Article 3 threshold. Furthermore, the humanitarian grounds against removal were not compelling enough.
1. Freedom of religion in Afghanistan and fear of persecution upon return
Afghanistan is an Islamic Republic and the central role of religion is clearly stated in the first articles of the Constitution that sets out that Islam is the official religion of the State (Article 2) and that “no law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan” (Article 3). The Constitution furthermore provides that the courts should follow the Hanafi jurisprudence – one of the four major schools of Sunni Islamic jurisprudence – if, in the cases under consideration, there is neither provision of the Constitution nor other laws that could be applied (Article 130). Moreover, with regard to the amendments to the Constitution, Article 149 states that “[T]he principle of adherence to the tenets of the Holy religion of Islam as well as Islamic Republicanism shall not be amended”. However, the Constitution also specifies in the second half of Article 2 that “followers of other faiths shall be free within the bound of law in the exercise and performance of their religious rituals”. The Afghan Penal Code punishes those who prevent a person from conducting their religious rituals or rites, damage a place of worship or attack a follower of any religion. Notwithstanding these provisions, non-Muslim minority groups in Afghanistan – converts, apostates, (converted) Christians, Baha’i, Hindu and Sikhs – cannot truly practice their faith openly. They suffer enormous discrimination both under the law (as mentioned, the Hanafi jurisprudence is used as a means of last resort) but especially because they are victims of harassment, intimidation and violent attacks, as underlined by reports from other States, agencies of the United Nations and European Union (such as UNHCR and EASO) and NGOs, including Amnesty International and Human Rights Watch.
Indeed, Hindu and Sikhs are among the religious groups that are particularly at risk in Afghanistan, as witnessed by a large number of them leaving the country. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan of August 2018 reports that the current number of Sikh and Hindus in the country is estimated to be between 180 and 200 families. Those who still live in the country encounter discrimination, intimidation and intolerance both on the part of the State (for example: in political representation, in government employment and in access to justice, in particular, with regard to illegal occupation and appropriation of Sikh properties) and within their social life, mainly by extremist members of the Muslim community. Many Sikh schools have been closed and children attending government schools are reported to be subjected to harassment and bullying by other students. Some Sikhs are reported to dress as Muslim in order to avoid harassment due to their distinctive religious headdress. Furthermore, Sikhs have encountered attacks during their religious ceremonies in funerals, which require police protection, since cremation is not allowed in Islam and, more generally, they choose to celebrate their religious festivals, such as Diwali, discretely, since grand celebration of their faith can be dangerous. In addition, given the general situation of Afghanistan and the lack of employment opportunities, Sikhs are unable to earn a living and they have to live in the Gurdwara where, in accordance with the Sikh and Hindu traditions, people can find hospitality, food aid and shelter. As a result, the Gurdwara themselves are less able to provide adequate support.
UNHCR Guidelines on international protection concerning religious-based refugee claims define these kind of claims as “among the most complex” ones (para. 1). There is no universally accepted definition of religion and, as a result, refugee claims based on religion may overlap with other ground(s) of the refugee definition and could entail issues that involve religion as belief, identity or way of life. Each claim shall be assessed on the basis of an individual examination that not only includes the personal experience of the claimant, but also those of relatives, friends or other members of the religious group. Even though mere membership of a particular religious group is usually not enough to substantiate a claim to refugee status, in some circumstances membership itself could represent a sufficient ground, in particular when taking into account “the overall political and religious situation in the country of origin, which may indicate a climate or genuine insecurity for the members of the religious community concerned” (UNHCR Guidelines, para. 14). This appears to be the case of Sikhs in Afghanistan because they are not only discriminated on the ground of their religious practices but, more generally, they face discrimination, intimidation and intolerance both on the part of the State and within the larger societal relations to the points that they have been forced to flee the country in the last few decades.
Notwithstanding the abuse suffered by Sikhs in Afghanistan, it should be underlined that the ECtHR would not have been able to declare a breach of Article 9 of the Convention that enshrined the freedom of thought, conscience and religion, without modifying its previous case-law. As has been established by the Strasbourg judges in the Z. and T. v. United Kingdom case (Application no. 27034/05) – concerning two Pakistan Christian asylum seekers that alleged a breach of Article 9 in case of expulsion to their country of origin after the UK’s refusal to grant the asylum – the Convention does not impose on the Contracting States to become the “indirect guarantors of freedom of worship for the rest of world”.
2. Removal to the country of origin and risk of ill-treatment assessment: the limits of the “limited indications” test
Under the Netherlands Aliens Act 2000, a temporary residence permit for the purpose of asylum may be issued to aliens who are refugees, within the meaning of the 1951 Refugee Convention, or who make a plausible case that there are serious grounds to believe that they will face a real risk of being subjected to serious harm if expelled. Asylum-seekers shall base their asylum requests on circumstances which constitute a legal ground for such a permit, by themselves or in combination with other facts. However, the assessment of those facts and, eventually, the grant of the residence permit are subject to the condition that the applicant’s statements are considered to be credible. The burden of proof with regard to the veracity of the story is placed upon asylum-seekers who must provide documents or, if documents cannot be produced, credible statements to support their claim.
According to Dutch law, the Deputy Minister responsible for immigration may establish country-specific asylum policies, based on country-of-origin information, and conclude that a specific country is faced with such an exceptional situation of violence and human rights violations that any individual is at risk of being exposed to treatments contrary to Article 3 of the Convention or Article 15(c) of the EU Qualification Directive. Moreover, the Deputy Minister may designate so-called “at-risk groups” or “vulnerable minority groups”. The former category includes groups whose members are victims of persecution, including those who do not face systematic persecution. A “vulnerable minority group”, on the other hand, differs to at-risk groups for two main reasons: first, vulnerable minority groups face arbitrary violence and human rights violations such as murder, rape and ill-treatments occurring in the country or in a particular area of the country; second, careful attention shall be given to the extent to which people belonging to such groups are able to protect themselves against the risks of violence and human rights violations or to avoid those risks by settling elsewhere.
For the purpose of applying for asylum, it is not necessary that members of a vulnerable minority group demonstrate that they personally experienced human rights violations. Instead, it is sufficient that those violations have been committed towards other members of the vulnerable minority group in the applicant immediate circle, even after the asylum seeker has left the country. In other words, merely belonging to vulnerable minority group is not sufficient to obtain asylum without “limited indications” of a fear of serious harm. Nevertheless, no asylum residence permit could be issued if a person that belongs to a vulnerable minority group has left the country long before the human rights violations occurred. Moreover, the “limited indications” test is also achieved in the case of human rights violations that are not sufficiently serious to breach Article 3 – such as physical violence, kidnapping, light prison sentence, intimidations – but may constitute a violation of that provision if they are repeated or inflicted in conjunction with other human rights violations. In sum, ill-treatments of the asylum-seekers can be considered as “limited indications” if they attain a minimum level of severity and are in breach of Article 3 of the Convention in respect of their repeated nature or their interaction with other human rights violations.
In the Netherlands, the country-specific asylum policy on Afghanistan does not mention any group that has been systematically exposed to persecution. However, Afghans who adhere to another religion than Islam, such as Sikhs, are considered a vulnerable minority group regardless of the area they came from, given that they encounter societal discrimination, obstacles to their educational and economic opportunities and a lack of adequate legal protection.
Nevertheless, in the present case, even though the applicants belong to a religious minority group that is considered to be vulnerable under the Dutch asylum policy, they failed to establish “specific individual characteristics” and human rights violations that would have occurred in their immediate circle. They did not meet the “limited indications” test and, as a result, the Dutch authorities concluded that there was no risk of violation of Article 3 upon return to Afghanistan.
However, the applicants underlined that, even if they left the country earlier than claimed and the international protection was not going to be granted in the Netherlands, the national authorities did not adequately assess the foreseeable consequences of discrimination and ill-treatments on grounds of their religion that would ensue if return to Afghanistan were carried out.
The Grand Chamber of the Court had previously decided, with reference to Article 3 of the Convention, on a case of an Iranian who, converted to Christianity, claimed asylum in Sweden and argued that return to his country of origin would expose him to a risk of ill-treatments on account of his political past and his conversion to Christianity (F.G. v. Sweden, Application no. 43611/11). The Strasbourg judges stated that Contracting States must perform a rigorous assessment of the “foreseeable consequences of the applicant removal to the country of destination, in the light of the general situation there and of his or her personal circumstances” (para. 114). The Court emphasized the importance of such risk assessment “considering the absolute nature of the rights guaranteed under Article 2 and 3 of the Convention, and having regard to the position of vulnerability that asylum-seekers often find themselves in” (para. 127). Therefore, in the F.G. v. Sweden case the Court unanimously held that, given that the Swedish authorities had not carried out an ex nunc assessment of the consequences of the applicant’s conversion, his removal to Iran would constitute a violation of Articles 2 and 3 of the Convention.
In the case under discussion, the ECtHR has adopted a procedural approach and has not given particular attention to the notion of vulnerable group, even though this concept is used in the Dutch asylum policy under scrutiny and that vulnerability is acquiring greater relevance in the case-law of the ECtHR. The Strasbourg Court has adopted a group-based approach to vulnerability and, stemming from the leading case M.S.S. v. Belgium and Greece (Application no. 30696/09), has included also asylum seekers among groups that can be considered vulnerable.
The Strasbourg judges submitted that the Dutch authorities have correctly assessed the credibility of the applicant (“[T]he Court – reiterating that it is not its task to substitute its own assessment for that of the domestic courts (…) – sees no grounds to depart from the conclusions drawn by the domestic authorities as to the lack of credibility of the applicants’ accounts (…) which conclusions were reached following a thorough examination and set out in decisions containing rational grounds that the Court has no reason to doubt” (para. 117)). Unlike the Swedish authorities in the F.G. v. Sweden case, the authorities have correctly carried out the assessment of the risk of being tortured or subjected to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention.
Conversely, in their joint partly dissenting opinion, Judges Lemmens, Vehabović and Schukking underlined that the risk assessment carried out by the Dutch authorities did not satisfy the procedural requirement under Article 3 of the Convention. More specifically, they advanced that the country-specific asylum policy of the Netherlands is nuanced and that, in the case at hand, it had been applied in a manner that precluded some of the applicants’ arguments from being adequately scrutinised in the asylum proceedings, such as “[F]act-specific factors that are not related to past ill-treatment but which have been put forward by the individual in support of his or her claim of future ill-treatment” (para. 7). Instead, as highlighted by the three judges, being the assessment of the applicants’ claims, at the domestic levelconfined to the question whether the criteria set out in country-specific asylum policy had been fulfilled (para. 123) appeared to be not in line with “the rigorous scrutiny referred to in the case-law of the Court” that “entails a thorough assessment taking into account of all the information brought to the authorities’ attention and relating to the situation in which the individual is likely to find him- or herself upon return” (para.7).
The partly dissenting opinion of the Judges highlighted that “although a number of individual factors may not, when considered separately, constitute a real risk, the same factors may give rise to a real risk when taken cumulatively and when considered in a context of general violence and heightened insecurity” (para. 4). Indeed, this appears to be the case for Sikh Afghans who, if returned to their country of origin, would find themselves in a war-torn country, with Islam as a State religion and where Sikh adherents, now reduced to a few thousands, face grave economic and social difficulties with regard to suitable housing, employment and schooling. As underlined in many reports on Afghanistan, the situation of Sikhs in the country has deteriorated over the years and even though there is no State persecution of Sikhs, their situation is not improving and the size of the Sikh population has drastically declined.
In addition, and with due respect, the Strasbourg judges have not sufficiently weighed the vulnerability of the applicants as asylum-seekers themselves against their vulnerability as a religious minority that has suffered discrimination and harassment over the past several decades. Even though single episodes may not constitute a real risk of ill-treatment if taken separately, they could lead to a real risk if taken cumulatively. Furthermore, it is argued that the Court has not given enough attention to the fact that minor children and an elderly person – the grandmother who is in need of specific health assistance – were members of the applicants’ families and that they belong to two further vulnerable groups themselves, who are in need of special protection. The minor children and grandmother face particular risks in case of removal, most notably with regards to their enjoyment of other fundamental rights, including the right to education and the right to health.
C. Suggested Reading
To read the case : ECHR, 25 February 2020, A.S.N. and Others v. The Netherlands, Applications nos. 68377/17 and 530/18.
Case law :
ECHR, 9 April 2013, H. and B. v. the United Kingdom, Applications nos. 70073/10 and 44539/11.
ECHR, 28 February 2006, Z. and T. v. United Kingdom, Application no. 27034/05.
ECHR [GC], 23 March 2016, F.G. v. Sweden, Application no. 43611/11.
ECHR [GC], 21 January 2011, M.S.S. v. Belgium and Greece, Application no. 30696/09.
P. Annicchino, «The Persecution of Religious and LGBT Minorities and Asylum Law: Recent Trends in the Adjudication of European Supranational Courts», European Public Law, Volume 21, Issue 3, 2015, pp. 571-590.
M. Abu Salem, N. Fiorita, «Protezione internazionale e persecuzione per motivi religiosi: la giurisprudenza più recente», Stato, Chiese e pluralismo confessionale, n. 37/2016, 21 novembre 2016, pp. 1-20.
L. Peroni and A. Timmer, «Vulnerable groups: The promise of an emerging concept in European Human Rights Convention Law», in I•CON, Vol. 11 No. 4, 2013, pp. 1056-1085.
Y. Al Tamimi, «The Protection of Vulnerable Groups and Individuals by the European Court of Human Rights», in Journal européen des droits de l’homme, 2016/5, pp. 561-583.
To cite this contribution : F. RAIMONDO, «Removal of Sikh families to Afghanistan: Religious Minority and Ill-Treatment Risk Assessment», Cahiers de l’EDEM, April 2020.