Charlotte Bayati and Amanda Walker have successfully argued that their clients would be at risk on return to Afghanistan, in a new country guidance case promulgated by the Upper Tribunal (Immigration and Asylum Chamber), relating to the risk on return for Afghan Sikhs and Hindus.
This determination replaces the existing country guidance relating to risk on return for Afghan Sikhs, provided in K (Risk – Sikh – Women) Afghanistan CG [2003] UKIAT 00057 and SL and Others (Returning Sikhs and Hindus) Afghanistan CG [2005] UKAIT 00137.
The evidence before the Tribunal specifically concerned risk on return for members of the Sikh community, but the Tribunal concluded that the risk factors identified related to the Hindu as well as the Sikh communities in Afghanistan. It was noted that Sikhs and Hindus are viewed as one by many in Afghanistan [para 83].
It was noted by the Upper Tribunal that the number of Sikhs left in Afghanistan is now likely to be less than 3,000, and that “as numbers shrink, remaining members may be more vulnerable to exploitation” [para 84]. It was not accepted that all Sikhs were at risk per se, but it was recognised that individual members of the Sikh community may be at real risk of persecution – all of the relevant circumstances need to be taken into account when undertaking an assessment of risk and each case will be fact-sensitive. It was found that particularly careful attention needed to be given to the following factors, in any assessment of risk on return:
- “women are particularly vulnerable in the absence of appropriate protection from a male member of the family;
- 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;
- 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;
- access to appropriate education for children in light of discrimination against Sikh and Hindu children and the shortage of adequate education facilities for them.”
The Upper Tribunal found that there was no evidence to show that the police, at local level, were willing (even if able) to provide protection to members of the Sikh or Hindu community experiencing persecution or harassment. As such it cannot now be argued that there would be a sufficiency of protection from the state, where a person is found to be at risk of persecution from a non-state actor.
It was further concluded that, in view of the declining number of Sikhs and Hindus remaining in Afghanistan and depleted support mechanisms, they will be unlikely to be able to reasonably relocate internally, unless they have access to an independent source of income.
It was found in the case of the fourth appellant and his family, represented by Ms Bayati and Ms Walker, that internal relocation to Kabul would not be reasonable in view of the fact that they would most likely have to resort to living in the Temple, and had no family or other contacts there and would therefore find it very difficult to survive economically. It was concluded that these circumstances cumulatively would prevent the fourth appellant and his family from living “a relatively normal life without undue hardship”.
Related barristers: Amanda Walker, Charlotte Bayati
Related practice areas: Immigration and Public Law
