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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> K (Risk, Sikh, Women) Afghanistan CG [2003] UKIAT 00057 (29 August 2003) URL: http://www.bailii.org/uk/cases/UKIAT/2003/00057.html Cite as: [2003] UKIAT 57, [2003] UKIAT 00057 |
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K (Risk – Sikh - Women) Afghanistan
CG [2003] UKIAT 00057
Date of hearing: 25th July 2003
Date Determination notified: 29th August 2003
K | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
For the Secretary of State: Mr. A. Hutton, Senior Home Office Presenting Officer.
For the Respondent: Mr. J. Patel, of Counsel, instructed by Malik & Malik Solicitors.
2. The Claimant is a Sikh national of
2. The Claimant is a national of
3. The Claimant and her three dependants arrived in the United Kingdom together, on 5th September 2002. At the start of their journey from
4.1 The basis of the Claimant's claim before the Adjudicator was that she and her family had suffered persecution in Kabul, where they had lived, on account of their Sikh religion. They had been persecuted by members of the Northern Alliance after the fall of the Taliban. In November 2001, her father-in-law was beaten by members of the Northern Alliance. He was told to convert to Islam. The same men went to their house in December 2001 to see if he and other male members of the family had converted. When they learnt that they had not done so, they bludgeoned the father-in-law and brother-in-law to death. The Claimant feared returning to
4.2 The Adjudicator allowed the appeal on asylum and human rights grounds. He found the Claimant to be entirely credible. He stated that his "consuming concern" was that, as a woman without male support in Kabul, without a husband and a father-in-law, she would suffer persecution and treatment contrary to Article 3. He considered that her only real option would be prostitution. He noted the Human Rights Watch World Report and the Womankind Report in the Claimant's bundle. He noted that, in paragraph 4 of the UNHCR's note, the UNHCR had stated that "also deserving of particular attention are asylum applications of members of certain groups with protection vulnerabilities". He considered that the Claimant comes within the Refugee Convention "as a woman without male support". He considered that the prospect of her parents being in
.2 The Appellant's asylum claim was certified. The Adjudicator upheld the certificate. Accordingly, the appeal before us relates only to the Appellant's human rights appeal.
5. The grounds of application for leave to appeal to the Tribunal assert that.
i) the Adjudicator had erred in finding that there was an applicable Refugee Convention reason. Furthermore, if he considered that she was a member of a particular social group, he erred in not giving sufficient reasons.
ii) the Adjudicator had erred by speculating as to what would happen on return to Kabul. He had not taken into account the fact that her parents were still in Kabul when she left, that the Sikh community is tight-knit in Kabul and that she would be able to seek assistance from her own community, if not her family.
iii) that the Adjudicator had erred in not considering the objective evidence fully. It is asserted that this shows that there are 40,000 widows in Kabul alone, that 36 % of the population in Afghanistan
as a whole are widows and that the NGO (non-governmental organisation) community are beginning to recognise the needs of widows.
7.1 At the commencement of the hearing before us, Mr. Patel informed us that he had not received any instructions as to the whereabouts of the Claimant's husband. Before the hearing got underway, Mr. Patel raised a separate issue.
7.2 Mr. Patel contended that there was no appeal before us, because the application for leave to appeal was lodged out-of-time. He had only become aware of this after his arrival at the hearing, when Mr. Hutton informed him that the Home Office received the Adjudicator's Determination on 11th March 2003. This means that the time limit expired, according to Rule 18(2) and Rule 48(2)(a) of the 2000 Procedure Rules, on 25th March 2003. The application for leave to appeal was only faxed to the Tribunal on 26th March 2003. Mr. Patel submitted that the provisions of Rule 49 were not applicable because the Claimant had not suffered any prejudice by the late application for leave to appeal. He could not refer to any authority for the proposition that the grant of leave by the Vice President could be set aside by the Tribunal. He asked for the proceedings before us to be stayed, so that he could make an application to the High Court for the grant of leave to be quashed. He confirmed that the Claimant had not been prejudiced by the late application and that the Claimant, his instructing solicitors and he himself had proceeded to prepare themselves for the hearing on the assumption that there would be a full substantive hearing before Tribunal at the hearing. He only realised that there was an out-of-time issue after he had spoken to Mr. Hutton on his arrival at the hearing centre.
7.3 Decision on the out-of-time issue raised: Given that leave had already been granted, the Tribunal has jurisdiction to hear the substantive appeal. The Vice-President who granted leave had jurisdiction to extend the time for the lodging of the application for permission to appeal. There was no reason to suppose that he had not directed his mind to the fact that the application was one day late. However, in the event that he had not directed his mind to this issue, the time limit for lodging the application was extended at the hearing, for the following reasons.
7.4 The relevant Rule in this regard is Rule 16(2) of the 2003 Procedure Rules, given that the time limit was extended at the hearing at a time when the 2003 Procedure Rules were already in effect. The fact that the application was lodged only one day out of time does not, of itself, amount to a special circumstance within the meaning of Rule 16(2). However, it is a relevant factor. Furthermore, the Claimant and her advisers had proceeded on the assumption that leave had been validly granted at all times since they were notified of the grant of leave until just before the hearing got underway. If the situation had been reversed and it was the Secretary of State who was seeking to rely on the timeliness issue in similar circumstances, it is difficult to conceive that the time limit would not be extended, since otherwise the applicant would be deprived of a hearing which he or she had been led to believe that he/she was going to have. The same considerations apply when it is the Secretary of State who stood to lose out on a hearing which he (and indeed, the Claimant) was led to believe would take place. Mr. Patel confirmed that the Claimant had not suffered any prejudice by the late application. Whilst it is accepted that the provisions of the rules for curing defects do not apply, the fact that the Claimant had not suffered any prejudice was also a relevant factor in deciding whether the time limit should be extended.
8. We then proceeded to hear submissions from both parties on the substantive appeal.
9. Mr. Hutton relied on the grounds of application. The Adjudicator had to given any reasons for finding that there was an applicable Refugee Convention reason. Women returning to
10.1 In reply, Mr. Patel carefully took us through the objective evidence. He asked us to bear in mind the fact that the Claimant would be returning to
10.2 Mr. Patel asked us to note that the sources referred to in paragraphs 6.38 and 6.39 of the CIPU Report were hopelessly out of date and relate to the period when the Taliban were in control. Paragraph 6.42 refers to a report of June 2002 which indicates that as few as 1,000 Sikhs remained in the country. Half of this number were concentrated in Jalalabad, about 15 Sikh families were in Kandahar and a further 15 to 20 families in Helmand province. On simple mathematics, this means that possibly only about 200 individual Sikhs (as opposed to families) were in Kabul – which means that the Sikh community in Kabul is very small. In the grounds of application, it is asserted that there are 40,000 widows in Kabul. In Mr. Patel's submission, a large number of these women must be from the mainstream population - that is, the Pashto and Tajik population. These 40,000 widows are supported by the communities to which they belong. There are no figures which show the proportion of Sikhs in Kabul who are single women or widows. The Claimant would be returned to Kabul and not to Jalalabad, because the Interim Administration in Kabul has limited reach outside Kabul.
10.3 The Claimant had said in paragraph 5 of her statement at page R18 of the Claimant's bundle that she had never been to school. This would affect her prospects of employment in Kabul. The report which the Secretary of State seeks to rely on in asserting that the Sikh community is close-knit is out of date. Pages A62 and A63 of the Claimant's bundle shows that the Sikh community in Kabul is not financially strong and therefore would not be able to provide assistance to a Sikh family returning to Kabul.
10.4 Mr. Patel submitted that the only way the Claimant would be able to live safely in Kabul would be to wear a burka, or a headscarf, in order to blend with the Muslim population. Page A69 of the Claimant's bundle mentions two incidents of women getting into difficulties. Reference was made to pages A70 and A87. The quality of protection in Kabul is "suspect". The police are themselves committing human rights abuses. Mr. Patel referred us to the Women's section of the CIPU Report of April 2003. He also referred us to the UNHCR's recommendations in a paper dated July 2002 issued in April 2003 set out paragraph 6.94, which is that the categories of women set out at paragraph 14.3 below should be considered to be at risk and exposed to possible persecution, if returned to
10.5 In Mr. Patel's submission, the Claimant falls in both categories. All of this goes towards the Refugee Convention reason issue. The Claimant would have to move away from her ethnicity to blend with the Muslim population and secure protection. She would otherwise be transgressing social mores. In Mr. Patel's submission, the Claimant does belong to a particular social group – namely, a Sikh woman without male support in a predominantly Muslim population.
10.6 Mr. Patel referred us to the Danish Fact-Finding Report at pages E144 to E147 of the Claimant's bundle. This states (at page E147) that even the UNHCR had given up moving female staff from other areas to a better job in Kabul if they do not have relatives, with whom they could live and that it is not possible to be a female breadwinner for a family. This is relevant evidence with regard to the Claimant's prospects of employment in Kabul.
10.7 Mr. Patel submitted that the Arefi case does not assist in this particular appeal, because that case relates to a Muslim person.
10.8 In the event that we decided that the Claimant did not belong to a particular social group, then Mr. Patel submitted that the Claimant's return would be in breach of Articles 3 and 8. Mr. Patel accepted that, if we found that there would be no breach of Article 8, the judgement of the Court of Appeal in Ullah and Do [2002] EWCA Civ 1852 means that the Article 8 claim could not succeed, since this is based solely on the treatment the Claimant would face in Kabul. However, he asked us to record the fact that he had raised Article 8 before us.
11. We reserved our Determination.
12. We have decided to allow the Secretary of State's appeal. We now give our reasons.
13. Firstly, we decided that the Adjudicator's Determination is not sustainable, not least because he fell into speculation in considering that the Claimant would have to resort to prostitution in order to survive. Furthermore, he did not give sufficient reasons for finding that there was an applicable Refugee Convention reason. This is important, given that he allowed the appeal on asylum grounds. He did not consider whether the Claimant would be able to obtain sufficient protection, in the event that she did experience any problems "as a woman without male support".
14.1 In the remainder of this Determination, references to the CIPU Report are references to the report of April 2003.
14.2 Paragraphs 6.38 to 6.39 of the CIPU report show that Sikhs in
14.3 We have noted that paragraph 5.54 of the CIPU report quotes from an Amnesty International Report dated March 2003, in which Amnesty International states that members of the NSD (National Security Directorate) have committed human rights violations including arbitrary detention and torture. Amnesty International also reported a widespread perception that the police are responsible for perpetrating human rights abuses rather than preventing or addressing them. However, it is not clear whether, according to Amnesty International, these problems are said to occur in Kabul or outside Kabul. If they are said to occur in Kabul, then this is at odds with the other reports which are referred to in the preceding paragraph. It is also at odds with paragraph 5.53 of the CIPU report which quotes from the Danish fact-finding report of September/October 2002 and in which UNAMA is quoted as saying that NSD does carry out random arrests but could not be said to systematically violate human rights. For these reasons, we do not place much weight on what is attributed to Amnesty International in paragraph 5.54 of the CIPU Report.
14.4 In general terms, the picture we have of the security situation in Kabul is that it is good. We conclude on the evidence before us that there is, in general terms, sufficient protection in Kabul.
14.5 We were referred to pages A62 and A63 of the Claimant's bundle. However, in the main, this document relates to the problems of Sikhs in a place called Khost in
14.6 Although we agree with Mr. Patel that paragraphs 6.38 and 6.39 of the CIPU report are, in general terms, based on out-of-date sources, we have come to the conclusion, by considering the objective evidence relating to the current situation which is before us, that Sikhs are not a persecuted ethnic group in Kabul. We have concluded, on the evidence before us, that there is no real risk that the Claimant would face treatment amounting to persecution or in breach of her Article 3 rights, simply on account of being a Sikh.
14.7 We agree with Mr. Patel's submission that, if one does the mathematics, then the fourth and fifth sentences of paragraph 6.42 of the CIPU report indicate that the Sikh community in Kabul is now very small, numbering possibly about 200 in total.
14.8 It is generally accepted that the situation of women has improved in
14.9 Our attention was drawn to the report at pages A87 to A89 of the Claimant's bundle. However, it is clear that the problems mentioned in the column entitled "Negative" from the third paragraph onwards on page A87 relate to areas outside Kabul, although we recognise that the second paragraph of the same column refers to security being poor even in parts of Kabul.
14.10 We have carefully considered the extracts of the Danish September 2002/October 2002 report, at pages E145 to E147 of the Claimant's bundle. Regrettably, we were only supplied with extracts of this report. It would have been helpful to see the whole report and, in particular, the conclusions of the mission on the evidence gathered. Various sources are quoted in the extracts at pages E145 to E147. For example, the Chief of the Afghan Women's Association (AWA) said (at page E145 of the Claimant's bundle) that no serious changes in the lives of women have taken place and that women are still being mistreated for not wearing a burka. On page E145, AWA are quoted as saying that there is no security for women at any level, that if women go to the bazaar without wearing a burka, they risk threats or – if nobody interferes – actual physical punishment. These assertions by AWA run counter to the objective evidence and what is known about the situation of women under Taliban rule. It is also at odds with the observation of the Norwegian Ambassador (on the same page) that he believed that he had noticed significant changes in the overall street picture in the last 6 months as regards the situation of women. Other sources are quoted as saying that the situation of women in
14.11 On the whole of the evidence before us, we have concluded that the Claimant is not at real risk of treatment amounting to persecution simply because she is a woman.
14.12 The Danish fact-finding report of September 2002/ October 2002 also refers to observations made to the mission about the situation of women without male relatives or without access to a network in their neighbourhood to protect them. On page E146, an international source is quoted as advising that women who have no male relatives for protection have serious problems, that it is necessary in the cities to have a network in the neighbourhood in order to get protection. However, we are not told who this source is. We have already stated, in paragraph 14.10 above, that we considered that the observations of AWA are at odds with the rest of the objective evidence. In the absence of any information as to the identity of the international source cited, the weight we are able to attach to their advice is necessarily limited. We have noted that the UNHCR, Kabul, stated that women are unable to move without male relatives. However, this appears to be within the context of UNHCR's efforts to move female staff from other areas to a better job in Kabul. This paragraph also states that it is not possible for women to be a female breadwinner for a family. We are not sure if this is attributed to the UNHCR. We assume it is.
14.13 Paragraph 6.94 of the CIPU report states that, in a paper dated July 2002 which was issued in April 2003, the UNHCR stated that the following categories of women should be considered to be at risk and exposed to possible persecution, if they return to
i. Single women without effective male and/or community support.
ii. Women perceived to be or actually transgressing prevailing social mores.
14.14 This refers to the return of women to14.15 With regard to category i, we note that the Claimant's husband's whereabouts are not known and therefore she would be returning to Kabul with her three dependants without any male relatives accompanying her back to Kabul. However, when she left
14.16 With regard to category ii., we are satisfied that there is no real risk that the Claimant would be perceived to be or actually transgressing prevailing social mores. In this connection, we noted that, during the Taliban regime, she was on one occasion only (in 1999) beaten on her way to the temple for wearing nail varnish. The lack of any other problems on account of transgressing social mores shows that she did not in general terms transgress social mores in the past and is not reasonably likely to do so in the future. It may well be that she may decide to wear a burka. In the event, however, that she faces problems as a result of not wearing a burka, we are satisfied that she would be able to obtain sufficient protection.
14.17 On the whole of the evidence before us, we have concluded that there is no real risk that, if the Claimant is returned to Kabul with her dependants, she would face treatment which is sufficiently severe as to amount to persecution or in breach of her rights under Article 3 on account of being a Sikh female who would be returning to Kabul without make support, although we accept that she may well face discrimination falling short of persecution. Of course, guarantees cannot be given. But we make it clear that we have assessed the likelihood of risk on the low standard of a reasonable likelihood. In the event that she does experience problems, we are satisfied that she will be able to turn to the security forces in Kabul for sufficient protection. In the circumstances, it is not necessary for us to consider whether she is a member of a particular social group, for the purposes of the Refugee Convention. In any event, even if she is a member of a particular social group, she has not shown that she would receive treatment amounting to persecution by reason of her membership of the particular social group.
15.1 We now consider the Article 3 claim to the extent that is based solely on the conditions which the Claimant will face in Kabul on her return. We recognise that the general humanitarian condition in Kabul is still very poor, as compared, for example to standards in Western countries. However as the Tribunal stated in Arefi, this is not the test. Paragraphs 6.160 to 6.164 of the CIPU report state that the situation in Kabul has improved greatly. In June 2002, journalists reported on the general return to normal life within the city. A report in June 2002 has confirmed the availability of food and water in Kabul. However, we acknowledge that conditions are still very difficult. There are references to the water table running very low, to the absence of an urban sanitation system and the absence of sewage treatment. There is reference to a local water crisis in September 2002 (paragraph 6.161). Accommodation is available in Kabul although housing is increasingly limited as more families arrive. Aid officials in Kabul have raised concerns about the huge influx of returning refugees which have placed strains on the city's housing and infrastructure. Although we note that reconstruction is under way in Kabul and that over 30 aid agencies are currently working within
15.2 The Adjudicator considered that the Claimant's only option would be to turn to prostitution. This may or may not have been based on page A96 of the Claimant's bundle, which refers to girl children of widows being more likely to be found working in informal sector undertakings, and being more vulnerable to prostitution. Reference is made in the grounds of application for permission to appeal to the situation of widows. The parties before us also made submissions on the position of widows. The Claimant is not a widow, although it is true that one of her dependants is a widow. Although we have no reason to doubt that employment opportunities are, in general terms, limited (see for example, the first bullet point under the heading "negative" on page A94 of the Claimant's bundle), there is evidence that there are jobs for women (see the section under the heading "positive" on page A94 of the Claimant's bundle). Paragraph 6.101 of the CIPU report also refers to hundreds of women working as civil servants and professionals in hospitals, courts, government and non-governmental institutions, the United Nations and the private sector. We recognise that the Claimant is not educated. This will make it even more difficult for her to obtain employment. We do not underestimate the difficulties she will face but we do not accept that her only option would be to turn to prostitution. She would be able to turn to the aid agencies in Kabul, although we recognise that their resources are stretched. She would also be able to turn to her own Sikh community for help. Nevertheless, we recognise that life will be very difficult for her. We bear in mind that she has three dependants. It may well be that she and her dependants may face poverty. We bear in mind also that the Claimant had witnessed her father-in-law and brother-in-law being murdered.
15.3 However, on the whole of the evidence before us, we are of the clear opinion that the conditions the Claimant would face would not be of such severity as to reach the threshold for a breach of Article 3. The Article 3 threshold is a high one. Any case such as this must be judged in the light of the decision of the European Court of Human Rights (ECtHr) in Bensaid v. The United Kingdom [2002[ INLR 325. In that case, the ECtHr said (paragraph 40 of the judgement).
40. The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standard of Article 3. It does not disclose the exceptional circumstances of the D. case (cited above) where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St. Kitts.
15.4 Of course, in the appeal before us, the Claimant does not rely on any medical condition. However, the principle in Bensaid is also applicable in this case.16. We are also satisfied that the severity threshold for treatment to amount to persecution or in breach of Article 3 is not reached even if any discriminatory problems which the Claimant might experience (paragraph 14.17 above) are taken cumulatively with the general conditions which she and her dependants would face in Kabul.
17. The effect of the judgement of the Court of Appeal in Ullah and Do [2002] EWCA Civ 1852 is that, given that the Claimant's claim under Article 3 has not been established, any claim under Article 8 must also fail, because this is based solely on the situation which the Claimant would face in Kabul. However, Mr. Patel asked to record the fact that he had raised Article 8 at the hearing before us. We also record the fact that the Article 8 claim was not mentioned at any stage until the hearing before us. It was not mentioned in the S. 74 Notice, nor in the grounds of appeal attached to the Notice of appeal to the Adjudicator. The Adjudicator's Record of Proceedings makes no mention of Article 8 having been raised before him. The Skeleton Argument before the Adjudicator makes no mention of Article 8.
18. For all of these reasons, the appeal of the Secretary of State is allowed.
Decision
The appeal of the Secretary of State is ALLOWED.
Ms. D. K. GILL
Vice President Date: 8th August 2003