Asylum request for members of a religious community. Rejection due to an unproven risk of inhumane or degrading treatment

JUDGMENT

A.S.N. and others v. The Netherlands 25.2.2020 (no.  68377/17 and 530/18)

see here 

SUMMARY

The applicants in both applications are families with minor children, originally from Afghanistan and belonging to the religious community of Sikhs. Citing fears of persecution because of their religious beliefs, they fled to the Netherlands where they sought asylum. Their applications were irrevocably rejected because they failed to demonstrate a legitimate fear of prosecution.

The United Nations High Commissioner for Refugees and the Defense for Children – Netherlands intervened in the present case.

The Court investigated whether the applicants were at risk when returning to their country of origin, and found from various reports that the situation of the Sikhs in Afghanistan was not such that they could be considered to be members of a group systematically exposed to mistreatment.

The ECtHR held that the applicants’ allegations of past mistreatment were not credible and that human rights violations against Sikhs in their “immediate cycle” had not been established. It concluded that the deportation of the applicants to Afghanistan would not constitute a breach of Article 3 of the Convention.

Grant of a provisional measure (Rule 39 of the Rules of Court) suspending the expulsion of the second applicant until the judgment becomes final.

PROVISIONS

Article 3

Article 2

PRINCIPAL FACTS

The applicants in application no. 68377/17 are Mr A.S.N. and Mrs T.K.M., while the applicants in
application no. 530/18 are Mr S.S.G., Mrs M.K.G., and Mrs D.K.G. The applicants are Afghan
nationals who were born in 1977, 1982, 1974, 1982, and 1947 respectively and live in the
Netherlands in Capelle aan den IJssel (A.S.N. and T.K.M.) and Emmen (S.S.G., M.K.G. and D.K.G.).
All the applicants are Sikhs who used to live in Afghanistan. The case concerned their complaint that
they would face ill-treatment if removed back to that country.

A.S.N. and T.K.M. are a husband and wife who have also lodged their application on behalf of their
two children, who are minors.

The family applied for asylum in the Netherlands in October 2015, telling the Dutch authorities that
they had left Afghanistan after T.K.M.’s sister had been kidnapped while on the way to the Gurdwara
(Sikh temple) and that her brother had received a ransom demand signed by the Taliban and had
then himself disappeared. The applicants had started receiving letters demanding to know where
the brother was and threatening kidnap and murder if they did not reveal his location.

The applicants came into contact with a man who arranged for them to travel abroad: before leaving
T.K.M. and the children had stayed in their house all the time, which they had eventually sold to pay for their journey. They also alleged that they had been the target of general abuse and threats in Afghanistan because of their religion.

The Dutch authorities rejected both an initial and a renewed asylum application by the applicants,
decisions that were upheld in court. The decisions found in particular that the applicants’ account of
events lacked credibility, that they had failed to show that they had left Afghanistan only recently
and that they had not made a plausible case for believing that they feared persecution.

The applicants in application no. 530/18 are a father, mother, two children and the children’s
maternal grandmother. They applied for asylum in June 2014, telling the authorities that about eight
months before leaving Kabul three people had forced their way into their home and that the
grandmother’s husband had died as a result of being beaten. They had also suffered constant
harassment because they were Sikhs. They had decided to leave Afghanistan and had made
arrangements with an intermediary.

The Dutch authorities rejected their initial and a renewed asylum application, expressing doubts in
particular about whether they had only recently left Afghanistan, which meant in turn that no
credence could be given to their account of events. The courts ultimately upheld the authorities’
decisions.

The applicants in both applications complained that their removal to Afghanistan would expose
them to a real risk of treatment that would violate Article 3 (prohibition of torture and of inhuman
or degrading treatment) or Article 2 (right to life) or both taken together.

THE DECISION OF THE COURT…

The issue before the Court is whether the applicants, on returning to their country of origin, would face a real risk of being tortured or subjected to inhuman or degrading treatment or punishment as prohibited by Article 3 of the Convention.

  • the situation of Sikhs in Afghanistan
  1. 1.  The applicants do contend that the general situation of Sikhs in Afghanistan is such that their removal to that country would expose them to a real risk of being subjected to treatment contrary to Article 3 of the Convention. The Court understands this to mean that the applicants consider that Sikhs in Afghanistan are a group systematically exposed to a practice of ill‑treatment

The Court is satisfied that it would not render the protection offered by Article 3 of the Convention illusory to require Sikhs challenging their removal to Afghanistan to demonstrate the existence of further special distinguishing features which would place them at real risk of ill-treatment contrary to that Article .

The third-party interveners in application no. 68377/17

    • UNHCR

In the view of UNHCR, recent residence in the country of origin was not required for the establishment of a well-founded fear of persecution. While the existence of past persecution was a relevant element in the consideration of an application for asylum, given the forward-looking nature of the refugee definition, past persecution was not of itself determinative of a well-founded fear of persecution. Furthermore, whether or not a person belonged to a minority group, there was no requirement of individual targeting upon return to the country of origin for the establishment of a well-founded fear of persecution.

  • Defence for Children – the Netherlands

Defence for Children – the Netherlands considered that the assessment of a violation of Article 3 of the Convention in cases concerning the removal of children to Afghanistan should be conducted in the light of the UN Convention on the Rights of the Child (“CRC”), and in particular of Article 3 of that Convention, according to which the best interests of the child should be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. Considerations relating to general migration control should not override best-interests considerations. Moreover, specific attention should be given to the multiple vulnerabilities of children belonging to a very small religious minority such as the Sikhs, who were reported to be at risk of discrimination, ill-treatment, arbitrary detention or death in Afghanistan.

Existence of further special distinguishing features of the applicants

The Court notes that the applicants submitted, in support of their requests for asylum in the Netherlands as well as of their applications to the Court, that they had experienced a number of particular events, amounting to ill-treatment, which had led them to decide to leave Afghanistan and to travel to the Netherlands. The Court has held that the fact of past ill‑treatment provides a strong indication of a future, real risk of treatment contrary to Article 3, in cases in which an applicant has made a generally coherent and credible account of events that is consistent with information from reliable and objective sources about the general situation in the country at issue.  Subsequently, on appeal and further appeal, no fault was found with the Deputy Minister’s assessment of the credibility of the alleged past ill-treatment. It is true that the appeal lodged by the applicants in application no. 530/18 was upheld by the Regional Court However, this was not because that court disagreed with the Deputy Minister’s assessment that the applicants had not satisfactorily established that they had left Afghanistan recently, but because in some other cases, where the Deputy Minister had similarly found that the asylum-seekers concerned must have left Afghanistan a considerable time previously, asylum had nevertheless been granted.

In the present case, the Court observes that, prior to the Deputy Minister taking his decisions, the applicants were interviewed by officers of the IND several times and were allowed to correct and add to the reports drawn up of those interviews, as well as to submit their views on the notification of the Deputy Minister’s intention to refuse their asylum applications.

However, for the reasons set out below, the Court cannot find in the present case that the applicants have succeeded in establishing substantial grounds for believing that, if returned to Afghanistan, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention.

The Court observes that in support of their second applications for asylum – which led to the “final decisions” within the meaning of Article 35 § 1 of the Convention – the applicants firstly referred to the deteriorating security situation of Sikhs in Afghanistan . As set out above the Court has already found that the situation of Sikhs in Afghanistan is not such that they can be said to be members of a group that is systematically exposed to a practice of ill‑treatment.

The Court further observes that the assessment of the applicants’ claims at the domestic level – in both sets of proceedings – was in essence confined to the question whether the criteria set out in the country-specific asylum policy in relation to “vulnerable minority groups” had been fulfilled .When applying this policy in the case at hand, the competent authorities concluded that the applicants had not complied with the relevant requirements since their accounts as regards past ill-treatment were found not to be credible and no human rights violations committed against other Sikhs in their “immediate circle” had been established; they had thus not succeeded in establishing the required “limited indications”

Be that as it may, the Court considers that these individual circumstances, advanced by the applicant as grounds militating against their removal to Afghanistan, cannot, even if they were proved to pertain, disclose an issue under Article 3 of the Convention.

The Court notes that both sets of spouses in the present applications consist of apparently healthy adults who have previously resided in Kabul, where the men – who are still of working age – were able to provide for their families. Furthermore, even if numbers have dwindled, the applicants will not be the only Sikhs in Kabul and it has also not been established that either the authorities or the entire Muslim population of that city will be nothing but hostile to them  Furthermore, and as already noted above it appears from the country material at the disposal of the Court that at least one school for Sikh children is open in Kabul.

The Court therefore finds that the severity threshold has not been met in the present case. Moreover, it has also not been established that the case is so very exceptional that the humanitarian grounds against removal are compelling.

Having regard to all of the above, the Court concludes that the removal of the applicants to Afghanistan would not be in breach of Article 3 of the Convention.RULE 39 OF THE RULES OF COURTThe Court reiterates that, the indication made to the Government under Rule 39 of the Rules of Court in application no. 530/18ν must remain in force until the present judgment becomes final or until the Court takes a further decision in this connection .


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