Upper Tribunal (Immigration and Asylum Chamber)

Appellants' immigration history

Issues for country guidance

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

Country evidence

Introduction to expert and their reports

Background to Sikhs and Hindus in Afghanistan

Population size

' The first presence of Hindus and Sikhs in the Central Asian country is said to be roughly 200 years ago.

Of the estimated 50,000 Hindus and Sikhs living in Afghanistan 10 years ago, most have left. Only about 1000 Sikhs remain in the country today, half of them concentrated in Jalalabad, the provincial and commercial capital of the eastern Nangarhar Province.

Sikhs left Afghanistan en masse, along with thousands of Hindus, after Hindu extremists destroyed the Babri Mosque in Ayodhya, in India, in December 1992, in fear of threats from radical Muslims following large scale looting of Hindu and Sikhs temples all over Afghanistan.

Their properties were looted, they were tortured and treated inhumanely, particularly in Kabul, with women reportedly raped. Under the Taliban, 'Indians' were marginalised and were not allowed to have any major stake in local economies as they had previously done.

The Hindus and Sikhs, with their typical business acumen, had established factories in Kabul and operated a healthy exporting business, trading in Afghan goods such as dried fruit, textiles and precious stones. With the coming to power of the Taliban, however, they had to resort to operating small shops selling fruit and textiles.

Their social status prior to the 1990s had also enabled them to be part of the military and civil services, and some even took up high positions in banking. With the fall of the Taliban, the 'Indian' community in the battered country is hoping to prosper once again and to rehabilitate the local economies.

For generations, Hindus, Sikhs and Jews lived in harmony with Muslim Afghans. Their rights were respected, and they regarded themselves to be Afghans as much as Hazaras, Pashtuns, Tajiks or Uzbeks born and raised in the country did.'

' 4. No precise estimate for the number of Sikhs and Hindus in Afghanistan exists, due to the failure of the government to carry out a census of the population. UNHCR sources estimated that in Kabul in 2005 185 Sikh families were left, with 160 in Jalalabad and 100 in Kunduz, these being the main communities. Sikh community sources estimated the number of families living in Kabul in 2010 to be down to 130, mostly living in the Karte Parwan area. Even some of those left say that they remained only because they were too poor to flee. According to the Department of State, the Sikh community in Afghanistan estimated its size in 2009 at 531 families or 3000 individuals, compared to from up to 200,000 before the war. Another estimate, provided by the Deputy of the Hindu and Sikh Council of Afghanistan, was 5000 Sikhs and 2000 Hindus. More recently the head of the community, Awtar Singh, estimated the size at 372-395 families nationwide, which would indicate a further decline. In any case it is obvious that the Sikh/Hindu population has been declining very much, by over 90%, a fact that should itself be an indication that the conditions of living in Afghanistan for the members of this community are now far worse than those of the rest of the population, which instead has been returning to Afghanistan: 5 million Afghan refugees have returned from mainly Pakistan and Iran between 2002-9. Considering the small size of the community, the sample of episodes of violence, abuse and harassment compiled in this report, which is certainly not exhaustive, indicates a high level of pressure on the Sikh/Hindu community. The episodes which occurred after 2005 amount to a substantial level of violence and harassment when projected into a population of 3000.'

'The only reliable observation that can be made about the current [2011] characteristics of Afghanistan's Sikh and Hindu minority is that it is now only a small fraction of its former size, and that as numbers shrink, its remaining members are finding themselves ever more vulnerable to aggressive exploitation, against which they have no meaningful defence. Hence the exodus can only be expected to continue'.

The historical position of Sikhs and Hindus in Afghanistan

'But the Russian forces wilted in the face of ferocious assaults by the mujahedeen. When they eventually withdrew with their tails between their legs in 1989, chaos reigned, and the Hindus and Sikhs of Afghanistan found themselves in severe difficulty. In the first instance they found themselves facing economic chaos as the various Mujahadeen splinters engaged in an internecine civil war, and yet greater difficulties still when the militantly Islamic Taliban swept to power in 1994. The tolerance of diversity which had hitherto been such a characteristic of Afghan Islam rapidly began to evaporate in the face of the hard line jihadi and fundamentalist attitudes promoted by the Taliban.

Hence even though the arrival of the Taliban was welcomed by large sections of the Afghan population because they replaced a smash and grab period of warlordism with a strictly imposed order - albeit of an exceptionally rough and ready kind - their arrival was in no way welcome by members of Afghanistan's Sikh and Hindu minority. Given their training in madrasseh wholly committed to Wahhabi and Deobandi interpretations of the Islamic tradition, the Taliban not only enthusiastically imposed bloody punishments on all those whom they considered to have overstepped their narrow and literalistic interpretations of Quranic injunctions, but also took the view that infidels and idolaters have no place in the Islamic paradise which they had constructed. As a result members of the Hindu and Sikh minority were required to wear yellow stars on their clothing, Muslims at large were strongly encouraged to avoid using their shops, and ever more vigorous efforts were made to 'persuade' them to see the error of their ways and to become Muslims. Such persuasion soon involved much more than verbal threats. Sikhs and Hindus soon found themselves being required to make financial contributions to the jihad, and if they failed to pay up, to find themselves faced with even larger ransom demands if they wanted to see their kidnapped sons and daughters returned home alive rather than as corpses.

However it would be quite wrong to assume that all Afghan Muslims were in sympathy with those tactics, which ran wholly contrary to their long-standing commitment to plurality-tolerant Sufi interpretations of Islam. In many respects the Taliban ideology was one which had been imported by a neo-fundamentalist group which had its roots in Pakistan. In the face of these assaults Sikh and Hindu families frequently found themselves provided with a modicum of support and shelter by their Muslim neighbours, and most especially those with whom they had sustained relationships or reciprocity over many generations.'

Country guidance decisions

The current situation - developments since 2005

Dr Ballard's reports

·          Although the community was living in Afghanistan before the arrival of Islam, they are now widely viewed as outsiders, and as immigrants from India.

·          Before the arrival of the Taliban, the community enjoyed a good life in Afghanistan.

·          War has destroyed many aspects of everybody's lives in Afghanistan, but the Sikhs and Hindus have been particularly vulnerable as a result of their being viewed as an alien minority.

·          Despite an influx of Sikh and Hindu refugees from the countryside, the size of the community in Kabul has continued to shrink as its members have sought refuge elsewhere.

·          Current problems include: lack of personal security, especially in the form of threats from unknown gunmen; lack of access to educational facilities; a widespread belief that all Sikhs and Hindus are rich (even if most of their businesses have now closed down), rendering members of the community vulnerable to kidnap in search of ransom payments.

'5.2 Kabul and Jalalabad: different worlds

While Kabul is by far the largest city in Afghanistan, Jalalabad is by no means out in the sticks: rather it lies halfway along Afghanistan's most significant trade route, the road between Kabul and Peshawar. Moreover precisely because of its location, the province in the midst of which it lies has been a key battleground for the various wars in which mujahedeen guerrillas have been active ever since the Soviet invasion more than thirty years ago, and who still tied down a large contingent of ISAF forces to this day.

However it would be idle in the extreme to assume that Kabul has been untouched by these developments. Quite the contrary: throughout this period taking control of Kabul has been the ultimate objective of all these insurgents, and if they have only intermittently achieved that objective it is largely the result of violent bickering among themselves on the one hand, and the presence of military forces of external origin - originally Russian, and now largely American - on the other hand, in support of their own favoured regime in Kabul. Hence whilst patches of Kabul - those within which members of what most Afghans regard as the occupying power have taken up residence - are relatively stable, the same cannot be said for the remainder of the country, or indeed the city. Given the weakness of the Afghan state - a historical no less than a contemporary phenomenon - members of every Afghan community routinely look towards their fellow members of their qaum (crudely their tribe) for succour and support, not least as a source of protection in the face of predatory initiatives by members of other rival qaum.

In the midst of all this, members of Afghanistan's Sikh and Hindu population have behaved in just the same way; and to the extent that they virtually monopolised a narrow but essential niche in the socio-economically order which did not bring them into serious [competition] with any other qaum, they largely looked after themselves. However not only have four decades of insurgency swept away at all past compromises to one side, but the fact that mujahedeen (of all manner of stripes) have played a leading role in the whole process has left members of the Sikh and Hindu quam ever more exposed. In Afghanistan at least, they were never warriors; and now, in the eyes of the mujahedeen, as well as those affected by their ideology, members of this community are now regarded as kaffirs, unbelievers who have no legitimate place in the Afghan social code.

From this perspective the processes which have rendered the position of Sikh communities in the more peripheral towns and cities in Afghanistan's periphery are no different from those at work in Kabul: Afghanistan is one country. Nevertheless that does not mean that there is absolutely nothing distinctive about the situation in Kabul. Precisely because Kabul has long been Afghanistan's commercial as well as its political capital, it has long played host to the largest Hindu and Sikh community in the country. And for just the same reason as the position of Sikhs in outlying towns and cities, as well as outlying parts of Kabul itself, became increasingly untenable, the community began to close ranks around, and seek shelter in, the Gurdwara in Kate Parwan [a district of Kabul located to the northwest of the city centre], which has long been the ultimate hub of the Sikh community in Afghanistan as a whole.

However just because such a defensive concentration of numbers facilitated the articulation of the greater degree of mutual support, there was still a sure sense that the community was as vulnerable as ever, not least because its members still had to find a means of living and working in the midst of a wider social order whose members were becoming increasingly hostile to their very presence in their midst. Moreover even though they were gathering together in this way in the heart of the old city, the Karzai regime has had, and still has, many much more challenging issues that confront the difficulties encountered by members of this peripheral and still shrinking qaum.

From this perspective on the situation in which members of this community find themselves in Kabul emerges as little different from that of those who once lived in Jalalabad. To be sure it is one which has lasted longer than those which were once to be found in almost all of Afghanistan's more peripheral cities and towns, but in the longer run it seems destined to be faced with the same fate: Afghanistan may be their land of ancestral origin, but recent developments have rendered further residence in their country of birth untenable.'

Dr Giustozzi's reports and evidence

' Virtually all Sikh families in Afghanistan had businesses in the country and would have had little motivation to leave in the absence of a serious threat. Because the insurgency largely operates in rural areas, while Sikhs all live in towns and cities, they have not been threatened by the Taliban specifically after 2001; however as detailed in the report there are other very significant sources of threat. Relocation options for Sikhs are limited to the few remaining Sikh communities. Nobody apart from a Sikh trade or craftsmen would employ any of them and even that would be difficult as Sikhs would prioritise their own relatives for hiring.'

'9. The defencelessness of Sikhs and Hindus remains true even today as they do not enjoy protection from any of Afghanistan's various factions. They are also too small numerically to matter politically. Therefore, they can be targeted with impunity. Cases of kidnapping of Sikhs have still been occasionally reported after 2001. After 2001 the militias have mostly been incorporated in the police, while criminal gangs are also known to have setup an extortion ring which targets businesses. According to Sikh community leader Atwar Singh, in Kabul alone 250 houses belonging to Sikhs have been illegally occupied when the militia moved into the city at the end of 2001 and it has not been possible to reclaim them, due to the lack of co-operation of the police and the judiciary. At present there are only an estimated 50 Sikh/Hindu properties left in Kabul. Expropriation has almost stopped after 2001 because all the most valuable properties had already been taken away from Sikhs. The main controversy from 2001 onwards has been surrounding the seized properties and efforts by Sikhs and Hindus to recover them. The leader of the Kabul Sikh community wrote to President Karzai several times to ask for the return of seized properties. Although Karzai instructed the Ministry of the Interior to deal with the issue, as of 2007 little has moved on this front. Almost all these militia all were linked to groups like Jamiat-i-Islami, which is strong in the Ministry of Interior. Many shops have also been seized.'

10. There are plenty of criminal gangs in Afghanistan and the most active and famous among them operate in and around Kabul and have often been targeting Sikhs. The network of former militia commanders in control of Parwan is known as the 'Parwan Mafia' which rotates around characters such as the former Minister of Interior, Zarar Moqbel Ahmad, Abdul Basir Salangi (Chief of Police of Kabul in 2003), Ayub Salangi (former Chief of Police of Kabul and currently Deputy Minister of Interior), Amanullah Guzar (former Chief of Police of Kabul), Haji Almas (Member of Parliament) and Maulana Sayyidkhel (former Chief of Police of Parwan and Kunduz, now dead). Through a cousin of Zarar, Khuja Nabi, the network maintains contact with two of the most important criminal gangs in Kabul, those led by Rais Khodaidad and Habib Estalifi, a fact which allows the network to carry out targeted assassination and other operations against rivals and enemies. In Nangarhar province one of the main sources of criminal violence have been the militias of Hazarat Ali. Attacks took place wherever Sikh or Hindu communities existed in Afghanistan, including Kabul, where a commander of Jamiat-i-Islami, Rahim, was even sentenced to death for his crimes against Sikhs and others, but managed to evade execution due to his connections. Rahim is the only known case of somebody having been prosecuted for an attack on Sikhs.

11. All the Sikh/Hindu temples (they are usually shared by the two religions) in Kabul were ransacked and destroyed, although some of them were rehabilitated later (see para. 30). Afghans often mixed Sikh and Hindus together as they are all seen as 'Indians' (Hindu). According to the deputy of the Hindu and Sikh Council, there have been after 2000 tens of cases of returning Sikhs who tried to reclaim their property, but failed to get any collaboration from the authorities and received instead death threats. Eventually most of them were forced to flee the country again, also because of the lack of resources of livelihood. Up to October 2004, only about a hundred Sikh families had returned to Afghanistan, according to sources gathered by the Indian press. There has been after 2004 a continuing but unquantifiable flow of returning Sikhs, mostly members of families who left Afghanistan in the late 1990s and are returning because they failed to settle successfully in their countries of immigration (India, Europe and Russia). These returnees are coming back to try and recover the properties which were expropriated in the 1990s, but without success and are often forced to leave again because they do not have a source of likelihood.

'19. As mentioned above, as far as it has been possible to establish no crime committed against Sikhs by Muslim Afghans has been punished; Sikhs can report attacks to the police, but it is very rare for the police to follow them up. For example, the Sikh community complains about police indifference to a wave of crime attacks on Sikhs in Karte Parwan. The case of Rahim mentioned above is the only known exception, but the sentence against him was never implemented. As indicated above, however, no Sikh who tried to recover his property from the authorities has been successful. Despite the end of official persecution, therefore, within the state apparatus hostility to Sikhs and Hindus remains widespread. However, there are direct orders from the President of Afghanistan to protect Sikh funerals and the police have been implementing these orders. As a result of this the Sikh community praises the police for having escorted Sikh funerals in the face of protesting crowds.

20. Carrying long hair and turban in the Sikh fashion of course greatly facilitates identifying Sikhs and therefore exposes them to the hostility of elements of the population, such as Muslim zealots as discussed above. Because it is difficult to recognise Sikhs when they do not carry these distinctive features, it is not possible to estimate how many Sikhs do not dress according to their religious code.'

i.               Pressure being brought to bear against members of the Sikh community to sell their property at a favourable price in Kabul since 2005. This included in 2006 a former Minister of Defence, Fahim, targeting a Sikh neighbour and even approaching the head of the Sikh community for assistance in his expropriation effort but this was nine years ago.

ii.            Threats against those active in seeking the return of seized properties which is not particularised in terms of date or detail.

iii.          In 2006, eight years ago, a young Sikh from Jalalabad who returned to the city to recover his family's property but disappeared before being able to contact his relatives there.

iv.          A Hindu rights activist, Anarkali Honaryar, who is also a delegate to the Constitutional Loya Jirga in 2003 and who is now a Senator, complaining that the properties of Hindus have not been returned and that Hindus still received death threats from gunmen. Eleven years ago.

v.             In March 2004 the Hindu and Sikh community of Khost complained to the local governor that "powerful Muslims" were forcing them to give up property, which is ten years ago.

vi.          April 2005, a Sikh temple in Khost was attacked and robbed by twenty one armed men, a city where there has always been a heavy security presence due to insurgency in neighbouring areas without any intervention from the police or other law enforcement agencies which is said to be highly significant of the neglect of Sikhs by the authorities, which was nine years ago. Of 243 Hindu families who once lived in Khost only one remains today.

vii.        During recent elections, Hindu and Sikh candidates have been harassed in Kabul and their election posters torn down and replaced with aggressive anti-infidel slogans. It is noted in the report that many Sikhs have indicated they miss the Taliban regime which was more effective in protecting them and preventing harassment and theft.

viii.     Attempts to start business activities being thwarted by threats. There have been at least two bomb attacks against Hindu and Sikh shops selling Indian films and music which is judged unacceptable to Islam by Muslim extremists and in Lashkargah (Helmand) Sikh shops have been demolished on order of the governor and no land has been allocated to build new ones. Although the evidence is not of recent events.

ix.           Ongoing harassment of adult Sikh and Hindus, particularly at the bazaar, who have fruit thrown at them and other gestures of hostility.

x.             Believers attending ceremonies at the Temple are targeted for abuse. Netting is said to cover second story windows of the Dharamsal Temple in Kabul after they were repeatedly smashed with bricks and rocks and passers-by often shout "infidel" and other insults. Worshippers rarely leave the service after its conclusion in the evening as knife wielding robbers are said to lurk near the temple waiting for adherence to these night time services, meaning congregation members prefer to sleep within the temple compound and leave the following day, which is said to be ongoing.

xi.           Sikh religious tradition and cremation is a strong point of contention between Sikhs and Muslims. Plans to build a crematorium were blocked by Muslim zealots according to the deputy mayor of Kabul. The conflict arises between the Sikh and Hindu tradition of cremation of the dead from the fact that in Islam not only is cremation not accepted but Afghan tradition demands that corpses are buried without being tampered with. In September 2007 Muslim zealots attacked a Sikh cremation ceremony in Kabul, beating up several of the participants and forcing the ritual to stop. The Sikhs later demonstrated in front of UNAMA's office requesting help who arranged a police escort to protect the funeral convoy back to the place of the ceremony and hold Muslim attackers at bay. It is reported that Sikhs who have themselves tried to carry out cremations have been beaten up, stoned, or otherwise blocked from doing so, and described as statue worshipping infidels whose ceremonies "smell". Islam considers cremation a sacrilege. Such opposition continues to date and although President Karzai and the Mayor of Kabul have tried to find viable locations for the Sikhs, in each and every case the local Muslim population has opposed the ceremonies and attacked them leading the police to have to intervene to protect the Sikhs or the funerals taking place under a hail of stones.' We note this occurred seven years ago and is not evidence of the current position.

'32. There is no assistance returning refugees back to Kabul and most of them are reported to be living in miserable conditions in the temple, at the expense of the community (temples operate as charities, with limited funds provided by the faithful). The community is too small and poor to provide more than occasional support to homeless Sikhs; those receiving support are expected to become able to cater for themselves after a few months and each functioning temple can only provide shelter to a handful of needy members of the community at any given time. Even those who qualify for UNHCR help will only be given temporary hospitality in a tent at the outskirts of Kabul and then left to fend for themselves. Community leaders are advising refugees in India not to return to Afghanistan. According to an Amnesty International Report, three Sikhs who had been returned to Afghanistan had to seek refuge in the temple after being racially abused in the street. There are 12 functioning temples around Afghanistan (out of 64 before the war), of which four are in Kabul and several towns have none; the Kabul community is the largest and better able to provide some help through the temple than other communities. In Nawabad for examples some 120 families were reported in 2006 to be living within the ruins of the old temple, in very precarious conditions.

We again note the date of these events which are eleven years old.

'35. There are no Sikh employed by the Afghan government at present. Because they are usually only educated to primary school level if at all, they are rarely in a position to apply for jobs in the bureaucracy anyway. There is no official discrimination against them, but hiring in the state apparatus in Afghanistan is driven by patronage and clientelism and lacking connections to power for politicians is probably the main obstacle for Sikhs. Typically Sikhs and Hindus in Afghanistan are self-employed, running their own family businesses. [The fourth appellant] would have to seek employment from another Hindu or Sikh business, but there are relatively few of them left and the owners will always prioritise their own relatives when hiring. It is unlikely that a Muslim business will hire a Sikh in any case. When that happens, they are usually employed servants and paid very low rates. A current estimate is that 20% of the economically active Hindu and Sikh population owns and operates its own shop (mostly grocery shops) and the remaining 80% holds menial jobs. Sikh women do not normally work in public places but rather at home, except in emergencies such as no other family member being able to attend the family shop. Very few Sikh women work outside their homes and usually these are the few who got educated. There is no discrimination against Sikhs in the health service, but should a Sikh need medical assistance, the services provided by the government are limited and not actually free; he would for example have to pay these medicines in most cases. For this reason many Sikhs are today unemployed. The government does not provide any unemployment benefit or assistance of other kind to the unemployed and under employed. For this reason relocation to a different town is very difficult; the Sikhs would need to acquire property there in order to start trading. Renting property is a risky option, as they would have most likely to rent from Muslims, who in turn could come under pressure by religious zealots, who could object to having Sikhs living among them.'

UNHCR

"The Sikh and Hindu communities, although allowed to practice their religion publicly, reportedly continue to face discrimination, including when seeking government jobs. They are also reported to suffer intimidation and harassment during major religious celebrations. Both communities report not being able to cremate their dead in accordance with their customs, due to interference by those who live near the cremation sites.  Sikhs and Hindus have reportedly been victims of illegal occupation and seizure of their land, and have also reportedly been unable to regain access to property lost during the mujahideen era. The right to education for Hindu and Sikh children is reported to be severely compromised because of abuse, harassment and bullying by other students. Although reliable data about the size of the Sikh and Hindu communities in Afghanistan are not available, large numbers of Sikhs and Hindus are believed to have left Afghanistan as a result of the severe difficulties they faced. The small numbers of Sikhs and Hindus who remain in Afghanistan have reportedly been left even more vulnerable to abuse."

Other reports

Evidence relied upon by the Secretary of State

OGN

'3.15 Hindus and Sikhs

3.15.1 Hindus and Sikhs may seek asylum on the grounds that they face societal discrimination and harassment and that they cannot rely on the protection of the Afghan authorities.

3.15.2 Religious Overview: see 3.13.2

3.15.3 Demography : The US State Department in its International Religious Freedom 2012 Report for Afghanistan published 20 May 2013 states that ―Reliable data on religious demography is difficult to obtain because an official nationwide census has not been conducted in decades. Leaders of minority religious communities estimate there are 350 Sikh families and 30 Hindu families. The USSD Religious Freedom report for 2011, published July 2012, stated ― According to self-estimates by these communities, there are approximately 2,000 Sikhs and 100 Hindu believers. The Institute for War and Peace Reporting (IWPR) reported in July 2011 that ― Given its proximity to India, Afghanistan historically had substantial Hindu and Sikh minorities, estimated at 20,000 before the factional civil war in 1992-96, followed by Taleban rule under which they were subject to discrimination rules. With most community members long gone, the total number of Hindus and Sikhs in Afghanistan is now estimated at around 3,000. In the US International Religious Freedom Report for July to December 2010, published 13/09/2011 and in the 2010 report, published 17 November 2010 the number of Sikhs is quoted at 3,000 and Hindus at 100. The US 2009 International Religious Freedom report quotes figures of 4,900 Sikhs and 1,100 Hindus.

3.15.4 The Centre for Applied South Asian Studies (Casas) 2011 report ―History and Current Position of Afghanistan's Hindu and Sikh population quotes a UNHCR paper of June 2005 as estimating 600 Sikh and Hindu families (about 3,700 persons) living in Afghanistan with small but steady numbers returning, particularly from India. The majority lived in Kabul (185 families), Jalalabad (160 families) and Kunduz (100 families) with others in Ghazni, Kandahar and Khost. Previously there had been as many as 200,000 Sikhs and Hindus living in Afghanistan. In considering the data the author of the report states ― the only reliable observation that can be made about the current [2011] characteristics of Afghanistan's Sikh and Hindi minority is that it is now only a small fraction of its former size, and that as numbers shrink, it's remaining members are finding themselves ever more vulnerable to aggressive exploitation, against which they have no meaningful defence. Hence their exodus can only be expected to continue.

3.15.5 Treatment: Freedom of religion and the corollary right to manifest one's religion in private or public are guaranteed by the Afghan Constitution. The Constitution contains, however, a repugnancy provision stating that no law can be contrary to Islam and defers to Shari'a law for matters not explicitly stipulated therein. According to some reports, members of the Hindu and Sikh communities continue to face societal discrimination, harassment and, in some cases, violence at the hands of members of other religious groups. Freedom House in its 2013 Afghanistan report noted ― Religious freedom has improved since the fall of the Taliban government in late 2001, but is still hampered by violence and harassment aimed at religious minorities and reformist Muslims, Hindus, Sikhs, and Shiite Muslims - particularly those from the Hazara ethnic group - have also faced official obstacles and discrimination by the Sunni Muslim majority ― Sikhs and Hindus continued to face discrimination, reporting unequal access to government jobs and harassment in their schools, as well as verbal and physical abuse in public places. In August a Sikh community leader publicly requested assistance to relocate Sikhs outside the country.

3.15.6 Sikh and Hindu communities also experience problems with land confiscation by local authorities and commanders, as well as obtaining land for cremation. Although Hindus and Sikhs had recourse to dispute resolution mechanisms such as the Special Land and Property Court, in practice the communities felt unprotected.

3.15.7 At least two Sikhs served in government positions, including one as a senior economic advisor to President Karzai and one as a presidentially appointed member of the upper house of parliament. Sikh leaders complained that they lacked political representation, noting that most Afghans fail to distinguish between Hindus and Sikhs despite significant religious differences. They also continued to complain about a lack of guaranteed seats in parliament. There are schools for Sikh children in Ghazni, Helmand, and Kabul. There are no Sikh schools in Jalalabad, despite estimates that nearly one-quarter of the Sikh population lives there. The government provides limited funding for Sikh schools, including for teachers for the basic curriculum. A few Sikh children attend private international schools. Hindus do not have separate schools, but sometimes send their children to Sikh schools .

3.15.8 The US Commission on International Religious Freedom Annual Report 2012 notes - In January, media reported on the case of Baljit Singh, a 23 year-old Sikh. Detained in 2010 on charges of falsely claiming Afghan citizenship after the United Kingdom deported him, Singh was in detention for over 19 months until being released on February 1. Singh alleged that during his detention, fellow prisoners and prison guards beat him on multiple occasions, insulted him, and forced him to remove his turban. Singh also alleged that he was deceived into converting to Islam while in prison; officials recorded and later broadcast his conversion on Tolo television. Officials from the attorney general's office disputed the claims of mistreatment and told media that non-Muslim prisoners routinely converted to Islam in the belief they would receive more lenient treatment. Singh was granted asylum and returned to the United Kingdom in July. The Guardian newspaper of 3 July 2012 reported ― Singh said he was being harassed for his religion and pressured to convert. He was verbally and physically abused in prison. One inmate threw boiling water over him, Singh said, pulling out a picture of his bandaged face shortly after the assault. He was also ordered to sleep in a corner of an outdoor courtyard, next to the toilet, he said. Men had to step over him on their way to relieve themselves, and as they did so, some kicked the turban that marked him out as a Sikh. Singh said the conversion angered the country's already beleaguered Sikh community, which has dwindled from thousands of families to just a few hundred over 30 years of war and persecution .

See also: Actors of protection (section 2.2 above)

Internal relocation (section 2.3 above)

Caselaw (section 2.4 above)

3.15.9 Conclusion . Data on religious demography is not reliable as the Afghan Government does not collect such information. Given the disparity of data in public sources, all that can be said with certainty is that the Sikh / Hindu community has significantly reduced from its peak in the pre Taliban era. In view of the importance in Afghanistan of the extended family and community structure, caseworkers need to consider whether adequate support for their needs is likely to be available to an individual returnee.

3.15.10 Whilst there is no evidence that Sikhs or Hindus are at real risk of persecution at the hands of the Afghan authorities solely because of their ethnicity, nor are there indicators of a Government able to provide effective protection to the Sikh/Hindu community. Sikhs and Hindus can be subject to societal harassment and discrimination. Where an applicant claims that they have suffered harassment and discrimination in the past, then careful consideration should be given as to whether their situation meets the threshold for granting protection.

3.15.11 If a Sikh or Hindu man or married woman does establish that they would on return face a localised risk amounting to persecution, it might be possible for them to avoid such treatment by internal relocation to an area where well-established and close knit Sikh and Hindu communities remain. Where internal relocation would avoid persecution and would be reasonable, a grant of asylum will not be appropriate. However see note 3.15.9 above.

3.15.12 Single Sikh and Hindu women and female heads of household without a male support network cannot reasonably relocate within Afghanistan. Therefore, if they would face ill-treatment which amounts to persecution they should be granted asylum unless there are clear case-specific reasons not to do so.'

British Embassy letter

·          Sikhs and Hindus living in Afghanistan are originally from this country and are not migrants from India as generally perceived. The number of Sikhs and Hindus in Afghanistan reached a number of 100K before the Russian intervention and civil war. During the lengthy 35 year war, a large number of Sikhs and Hindus migrated to different countries, particularly India. Before the war, Sikhs and Hindus made a prominent contribution to society and held key positions, such as Dr Barmokhandas who was the pioneer of forensic medicine in Afghanistan. Before the war era, they were engaged in businesses such as gold selling, herbal medicine homoeopathy and cloth selling.

·          Currently the number of Sikh and Hindus in Afghanistan could reach approximately 7000 out of whom 5000 are permanently living in Afghanistan and 2000 are Sikhs living in Afghanistan to do business with their families living elsewhere. Sikhs and Hindus are not as wealthy as they used to be before the war and they live based on a daily wage or engage in small-scale businesses such as herbal medicine, homoeopathy and cloth selling. The tradition of gold selling is no longer seen among Sikhs and Hindus which is due to their lower economic social status.

·          There are very few educated Sikhs or Hindus and they cannot send their children to schools as bullying is high against Sikh/Hindu children. However two schools have been built by the Government of Afghanistan specifically for Sikh and Hindu children in Kabul and Nangarhar provinces, where they can get elementary education. They have worshipping places (Gurdwaras/Dharamshalas). There are no restrictions on worshipping or their religious ceremonies. They have a good relationship with Muslims and they attend interfaith ceremonies.

·          Throughout Afghanistan, Sikhs and Hindus live in small communities in Kabul, Kandahar, Helmand, Khost, Nangarhar, Ghazni, Kunduz, Parwan, Heart and Mazar-e-Sharif provinces. Currently there are 64 worshipping places across the country with nine in Kabul and the remainder in the provinces mentioned above, with each community having their own worshipping place. There are no Sikh/Hindu media publications in Afghanistan.

·          Sikhs and Hindus have problems regarding their cremation venue (Shamshan) in Kabul and Ghazni provinces. Although the Ghazni issue has been resolved, problems persist in Kabul. A cremation venue has been allotted to Hindus and Sikhs (at Qalacha area) who have been using it for the past 120 years. However, due to the expansion of residential units and urbanisation, residential buildings have been built around the Shamshan, no longer letting Hindus and Sikhs use that particular venue as the smell of the burnt bodies contaminates the environment. As a result, residents around the Shamshan stone their dead bodies and don't let them observe their funerals. They have had to ask the police to protect them during many funerals, the police have obliged and held security for their processions. Kabul Municipality has allocated a large area for Hindus and Sikhs at Police District 21 area of Kabul city where they can build residential units and their Shamshan. District 21 is freshly annexed to the Kabul Municipality though is not developed yet.

·          The new area will take a long time to be developed into a proper residential area as it lacks basic infrastructure such as electricity, water, sanitation, roads etc. Some Sikhs face land grabbing problems. Sikhs and Hindus left their property and fled the country as a result of war. The properties are usually grabbed either by some fellow Sikh community members or other people from the surrounding area. Most of them get the issues resolved through relevant legal systems and have regained their land, however, some do not claim their property fearing the party grabbing their land would harm them. Currently there is a lack of shelter for some Sikhs who have been living in Gurdwaras (worshipping places) across the country. There are families living in a Gurdwaras in Kabul, Jalalabad , Kandahar , Helmand, Ghanzi and Kunduz. These families have made rooms inside the premises of the Gurdwara and are living there due to lack of housing.

·          The Ministry of Haji and religious affairs has resolved the problems with the residents around the Shamshan at Qalacha and residents will let Sikhs undertake ceremonies for the next 2-3 years until the Shamshan at PD 21 is developed. The Ministry of Haji and religious affairs has taken steps and introduced awareness programmes across mosques to promote religious tolerance with Sikhs and other minority groups which have been effective and welcomed by the Sikhs and Hindus.

·          Sikhs do not have any complaints against the system and they are happy with what the government is doing. However, some of the issues they face are common amongst the Sikh community. Sikhs and Hindus are not the target of any particular persecution or discrimination in any part of the country. They have a good relationship with Muslims and attend interfaith ceremonies. They are not subject to discrimination by the public. They can set up their businesses as everybody else in the country can do. Hindus and Sikhs return back in small numbers. Lately three families returned back from India. Hindus and Sikhs can participate equally in political processes and the Afghan president has recently issued a decree (#59) through which Sikhs and Hindus are reserved seats at the Lower House. The decree is currently in the Upper House and is awaiting passage.

·          Currently Sikhs and Hindus have to participate in Parliamentary elections through open competition. There are very few prominent Sikhs or Hindus. Although another Sikh ran for Parliamentary elections in 2010, he lost. There are opportunities to engage in local and national politics.

'36. The figures provided in the letter concerning the size of the Sikh and Hindu community are similar to those discussed in para. 4 of this report. The number of Sikh and Hindu temples is stated as 64, but this figure also included a majority of interactive temples, which have been damaged during succession of wars in the 1980s and 1990s and never repaired. According to the letter, some Sikhs have been able to reclaim their properties after 2001, but the three senior members of the community interviewed for this report have all indicated that they were not aware of any successful case of properties having been recovered. The decree of President Karzai, which was meant to give Sikhs and Hindus a reserved seat in Parliament, has been rejected by the parliament and therefore the information contained in the letter is not up to date. In other regards the content of the letter coincides with the content of this report.'

Submissions

Legal framework

'An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;

(ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom;

(iv) he does not, having been convicted by a final judgment of a particularly serious crime, he does not constitute danger to the community of the United Kingdom; and

(v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would threatened on account of his race, religion, nationality, political opinion or membership of a particular social group'.

'Protection shall be regarded as generally provided when the actors mentioned in

paragraph (1)(a) and (b) (see above) take reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the person mentioned in paragraph (1) has access to such protection'.

'(i) The Secretary of State will not make:

(a) a grant of asylum if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country; or

(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.

(ii) In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making his decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.

(iii)(i) applies notwithstanding technical obstacles to return to the country of origin or country of return.'

General approach

State sponsored persecution

Serious harm - non-state actors

'Yet some people still have fond memories of a time when Muslims and Hindu communities lived peacefully together. "We shared our happiness and grief" said Badshah, a Muslim shopkeeper in the town of Khost. "When we go to India now, we stay in their homes. They are proud Afghans. They are hospitable. They worked alongside us to address problems. I miss them."

Samiterai, a Hindu from Khost currently living in Kabul, said "we were so friendly with our Muslim brothers that we never even thought about who we were or who they were. We were all the same, Afghans.'

We accept the evidence of government initiatives such as the allocation of land to enable a new settlement to be built on the outskirts of Kabul which includes an area to allow cremation to be undertaken away from residential areas and the proposal that a parliamentary seat be reserved for members of these groups even though it was rejected as being unconstitutional. The Afghan Constitution prohibits the allocation of benefits based upon ethnic lines. The letter from the British Embassy also refers to other initiatives and an alleged lack of knowledge of or failure to mention the same in interview, by those interviewed by Dr Giustozzi's researcher, does not mean such initiatives do not exist or are not representative of a more positive attitude existing at the level of the Executive in Afghanistan towards the Sikh and Hindu minority than may have been the case in the past. It was put to Dr Giustozzi in his oral evidence that within the government there is a desire to promote tolerance between the different communities in Afghanistan which he accepted.

Harassment and discrimination

'The criterion to establish persecution is harassment, harassment that is so constant and unrelenting that the victims feel deprived of all hope of recourse, short of flight, from government by oppression'.

' Article 9

Acts of persecution

1.  Acts of persecution within the meaning of article 1 A of the Geneva Convention must:

(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basis human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)

2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner ;

(c) prosecution or punishment, which is disproportionate or discriminatory;

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);

(f) acts of a gender-specific or child-specific nature;

3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.'

It is also the case that neither the Refugee Convention nor the Qualification Directive is intended to protect against all forms of harm.

Sufficiency of protection

Women

Children

' Depending on the particular circumstances of the case, UNHCR considers that children falling under the following categories may be in need of international refugee protection:

a) Children from areas where either AGEs or elements of the ANSF use underage recruitment;

b) Children from social milieus where bonded or hazardous child labour is practised;

c) Victims of violence against children, including sexual and gender-based violence, as well as children from social milieus where such violence is practised; and

d) School-age children, particularly girls. Depending on the individual circumstances of the case, they may be in need of international protection on the ground of their membership of a particular social group, their religion and/or their (imputed) political opinion.

Asylum claims made by children, including any examination of exclusion considerations for former child soldiers, need to be assessed carefully and in accordance with the UNHCR Guidelines on child asylum claims.'

Land seizures

'Despite the bleak prospects that faced Sikhs and Hindus in Afghanistan, a handful of these minorities have endured three decades of conflict to stay in their home country, having forged relationships with Muslims that eclipsed religious persecution.

One Sikh family lives quietly in a fortress like home with high in mud walls on the outskirts of Kabul. Guarding it is a Muslim family headed by [....] who has served as chief custodian of their property and 24 hectares of farmland for 17 years.

The Muslim family is left in charge when the Sikh family moves to India during the Afghan winter months. A large man with a bushy beard, [...] said that in his employers absence, he had warded off bribes and intimidation by local Mafia groups attempting to take over the land.

"We have a special bond of trust between us. I would never work for anyone else" he said.'

Cremation

Temple

Employment opportunities

Position of the Afghan Government on returnees

' The ministry of Migration and Repatriation Affairs of Afghanistan has decided to reconsider the terms of the existing Memorandum of Understandings' through diplomatic channels and requested partner countries to suspend deportation of Afghan Migrants until decided otherwise, where the Ministry can provide the necessary services to returning Afghans. Until that time the Ministry cannot accept responsibility regarding any Afghan Deportee.'

Internal relocation

'...the correct approach when considering the reasonableness of [internal relocation alternative] is to assess all the circumstances of the individual's case holistically and with specific reference to the individual's personal circumstances (including past persecution or fear thereof, psychological and health condition, family and social situation, and survival capacities). This assessment is to be made in the context of the conditions in the place of relocation (including basic human rights, security conditions, socio-economic conditions, accommodation, access to health care facilities) in order to determine the impact on that individual of settling in the proposed place of relocation and whether the individual could lead a relatively normal life without undue hardship.'

Conclusions

First, second and third appellants

122.     The first appellant left Afghanistan again in July 2011 and returned to the United Kingdom with his wife and daughter on 4 ^th December 2011 without leave. They claimed asylum at port on arrival. The claim was refused and an appeal to the First-tier Tribunal dismissed on 13 ^th June 2012. The core of the claim is that the family are pharmacists and with the financial assistance the first appellant received from the Voluntary Departure Scheme he was able to set up his own pharmacy. That business failed and he then went to work for his father in Kabul. In May 2011 the pharmacy provided a medicine in which an ingredient was missing. A report showed that entire batch supplied to the pharmacy was faulty as a result of which the supplier of the medicine, a Mr Aziz, and the police were informed. Mr Aziz's warehouse was raided and thereafter Mr Aziz was convicted and sentenced to ten years imprisonment.

'35. I have tried to consider the issue of credibility in the round. I have considered all the factors raised in the preceding paragraphs. When considered together they do fundamentally undermine the credibility of the appellant's account. The issues raised are not peripheral but go to the core of the appellant's account. I find that the appellant is not a credible witness and I find his account of events that occurred to be a fabrication. As such I reject each and every aspect of the appellants claim other than the fact that he is from Afghanistan and may be of the Sikh faith. As such I do not accept that he is at risk from Mr Aziz or from any friends or associates of his. I reject the claimed threat in its entirety.'

Fourth appellant

"The appellant is a Sikh and had been working in his father's textile shop in Jalalabad. He and his family had long experience of harassment, beatings and discrimination at the hands of the majority population in Jalalabad but the situation markedly deteriorated around ten years ago when the appellant's father was killed in a sectarian attack. The appellant himself was subsequently abducted by the Taliban and only returned to the family after his brother had paid a substantial ransom. In 2006 the appellant and his family came under pressure from a local Muslim who wished to marry the appellant's daughter. They received death threats and decided to sell the family shop and leave Afghanistan."

Decision

Anonymity

Signed.......................................................

Upper Tribunal Judge Hanson

Dated the 20 ^th August 2015

SCHEDULE OF BACKGROUND AND EXPERT EVIDENCE

Documents before the Upper Tribunal - Appellants' Bundle

APPENDIX B

Documents before the Upper Tribunal - Respondent's Bundle

APPENDIX C

Documents before the Upper Tribunal - County Information Bundle 28 ^th May 2015 - filed (on behalf of appellant TG)