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APPEAL No. RA (Hindu – Safety in Kabul) Afghanistan  UKIAT 00097
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 22.04.2004
Date Determination notified: 04 May 2004
John Freeman and
Peter Moulden (vice-presidents) and
Mr MM Saleem (solicitor, Malik & Malik) for the appellant
Mr A Sheikh for the respondent
DETERMINATION AND REASONS
|Secretary of State for the Home Department
- This is an appeal from a decision of an adjudicator (Mr AW Palmer QC), sitting at Birmingham on 22 October 2003, dismissing an asylum and human rights appeal by a Hindu citizen of Afghanistan. Permission to appeal was given on the basis of grounds of appeal arguing that there was no effective protection for Hindus, even in Kabul; and that it would be contrary to article 8 of the Human Rights Convention to separate the claimant from his father, who has exceptional leave to remain here till 2005.
- We had better say at once that we regard the article 8 grounds as wholly without merit. There is nothing in a grant of exceptional leave to remain to show that the subject cannot return to his country of origin: it is what it says it is, exceptional. If the claimant's father had been dissatisfied with the status afforded him by the leave he was given, then it would have been quite open to him to appeal that decision, under § 69.3 of the 1999 Act; but he chose not to do so. The claimant's father is of course a good deal older than he is, and has a bad leg (there is no more precise medical evidence); but there is nothing to show that either he or the claimant himself would be subject in Kabul to anything more than the difficulties common to all Hindus.
- The question for us is whether these raise any real risk of Convention persecution or ill-treatment on return. We were not referred to any previous decisions of the Tribunal on Afghan Hindus, and it may be that there are none. However we were referred to  UKIAT 00057 K (Afghanistan), an exhaustive treatment of the situation of Afghan Sikhs by Gill VP and a lay member. Mr Saleem was inclined to criticize this adjudicator for not making a difference between this claimant's situation and that facing Sikhs; but it is perfectly clear that the adjudicator realized he was dealing with a Hindu, and there is nothing to show that he simply assumed that they faced the same situation as Sikhs.
- On the other hand, the CIPU report (October 2003) says at § 6.51:
Unlike their counterparts in India, where the faiths are clearly separate it is reported that Sikhs and Hindus, in predominantly Muslim Afghanistan, have become united in adversity. They share the same temples as well as many religious ceremonies.
On the evidence before us, we see no basis for making any distinction between the situation of the Sikhs and that of the Hindus. Mr Saleem suggested that the latter might be less welcome than the former in gurdwaras, the Sikh temples which according to him formed the main place of refuge for members of both communities.
- In fact § 6.53 refers to those returned to Afghanistan taking refuge in "Daramsals" (sc. Dharamsala), which there is nothing to suggest has any specifically Sikh connotations. However, even if this claimant and his wife did have to go to a gurdwara on return, Mr Saleem was unable to challenge our understanding of the traditional duty of those in charge of such places to give shelter and accommodation to all comers, regardless of religion. He was in the end reduced to arguing that it would be contrary to the human rights of the claimant and his spouse to require them to live for any length of time in an establishment which might not afford the necessary privacy for marital relations. Such experience as we have of human nature suggests that, where there is a will, there is a way; but in any case, there is nothing whatever to show that those in charge of gurdwaras are so unsympathetic that they would not, for example, let a blanket be draped across some convenient alcove when required.
- Mr Saleem raised a general point about the safety of Kabul, in view of the deficiencies in the police force noted by Amnesty International in their press release "Afghanistan: Policing to protect human rights" (undated, but with a 2003 reference number, down-loaded from the Internet on 14 June 2003). That raises general problems, not related to the Hindu (or Sikh) communities, which are said to have led to general loss of public confidence in the police. However, there is nothing specifically relating to Kabul in the release, except for an acknowledgement that it is the only place where the central government has effective control.
- On the other hand, Mr Sheikh referred us to material which did specifically relate to the security situation in Kabul, in the October 2003 CIPU report. ISAF [International Security Assistance Force] reported (§ 5.56) in April 2002 that it had significantly improved since they arrived and (§ 5.63) a further vast improvement during the period November 2002 – February 2003); a Danish fact-finding mission in May 2002(§ 5.57) had said security was generally good, apart from three named districts (not shown to be of any particular relevance to this case). The Secretary-General of the United Nations had reported "a very positive impact on security" by ISAF in Kabul in July 2002, expressing still more favourable views (including the effect on public confidence) in July 2003, again so far as the capital was concerned.
- We regard 57 K as an entirely balanced assessment of the general situation, and that facing Sikhs in Kabul. As the Tribunal in that case pointed out (§ 15.1), the general humanitarian situation in Kabul is still very poor by Western standards; but that is not the test of "inhuman or degrading treatment" contrary to article 3 of the Human Rights Convention. Mr Saleem suggested that K, as a woman on her own, might have expected to be better looked after by the community on return than this claimant.
- On the other hand, this claimant, as a man (and one whose history of escape showed him as resourceful in both senses), would be better able to look after himself. There is nothing to show that paying for that exhausted not only the proceeds of the family house, but also their shop and all of its stock (see claimant's statement 2 May 2003, § 8); or that the claimant (or his father) would after an extended stay in this country be completely without money on return to Afghanistan; but, even if they did have to take refuge in a temple to begin with, we see no reason, for the reasons we have already given, why that should amount to "inhuman or degrading treatment".
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