IN THE IMMIGRATION APPEAL TRIBUNAL 

AS and others (Sikh – risk on return – KK followed) Afghanistan [2004] UKIAT 00333
Heard:  	09.12.2004
Signed:  	09.12.2004
Sent out:	31.12.2004	  

NATIONALITY, IMMIGRATION AND ASYLUM ACTS 1971-2002

Before:
John Freeman (a vice-president)
Mr JA Blair-Gould and
Mr P Rogers JP

Between:  
,
appellant 

and:
   Secretary of State for the Home Department,
respondent; 

and between: 
Secretary of State for the Home Department 
appellant
and:
claimants

Mr A Sheikh for the Secretary of State 
Miss A Jones (counsel instructed by Bhogal Lal) for Sarna and Grover
Miss R Baruah (counsel instructed by Bhogal Lal) for Mrs Kukreja
Miss L Bayley (counsel instructed by Shehan Pindiya & Co) for Arora

DECISION ON APPEAL

These are appeals from decisions of adjudicators, either dismissing or allowing asylum and human rights appeals by Sikh citizens of Afghanistan. The relevant point of law is whether the adjudicator’s decision was in accordance with the view since reached by the Tribunal on the situation facing such persons on return, regardless of their personal history or circumstances, in KK [2004] UKIAT 00258, described by the Tribunal in the course of that decision as “the irreducible minimum case”. It is neither desirable nor in accordance with the law for there to be different competing views amongst the appellate authorities on such cases, whether or not there was any apparent error of law on the face of the adjudicator’s decision as and when given: see Shirazi [2003] EWCA Civ 1562.

2.	The Tribunal based its decision in KK 04/258 on evidence from a Sikh still living in Kabul called [        ]. Because of the lack of proper notice of that evidence, the decision was not designated as a “country guidance” case, so does not require fresh evidence not available at the time for it to be distinguished; but it was directed to be reported, to provide such guidance as was possible for other cases. The ratio of KK 04/258 appears at § 34:

However, [        ] evidence, which for present purposes we have decided we ought to accept as passing the Karanakaran threshhold, does appear to show three things. First, there is a reasonable likelihood of at least moderately serious violence against Sikhs because they are Sikhs; second, that is encouraged, and not guarded against by the perpetrators’ perception of the authorities’ attitude to it; third, there is nothing to show any specific commitment by either the international forces, or the Afghan authorities, to the protection of minorities generally, or the Sikhs in particular. In our view those add up to a real risk of persecution at the present time: that is certainly not to say that all Sikhs are being persecuted; but, on the evidence available to us (which was not in its present form before the Tribunal in IB 150), any of them who are identifiable as such run a real risk of it.

3.	We invited Mr Sheikh, appearing as in KK 04/258 for the Home Office, to refer us to any evidence there might be to contradict those conclusions. This was what he relied on:
a)	State Department International Religious Freedom report on Afghanistan   (15 September 2004)
There are two passages: at p 5/8, an account is given of police warning and investigation of a grenade attack on the only functioning gurdwara, in early October 2003: evidently they were not able to prevent it. At p 6/8, there are references to guards being put on the unused gurdwaras, and a shuttle service for worshippers at the one which remained. The Human Rights Commission had secured the allocation of a new Sikh cremation ground; but the community had not yet taken control of it.
b)	
Deutsche Welle report ‘Germany strengthens Commitment to Afghan Police’
(21 May 2004)
This records extensive logistic and training help on the part of the German government: the only passage with any specific relevance to the problems faced by minorities refers to the new police academy seeking out candidates from ethnic minority groups.
c)	Defend America (US Dept of Defense News About the War on Terrorism)
(8 October 2004)
This recounts, with a certain amount of lip-smacking detail, the relatively glamorous costume favoured by new female recruits to the Afghan police. We were rather amused, but not much assisted by it.
d)	‘The Hindu’ International: article ‘Afghan Sikhs seek overland entry to India’ (25 October 2004)
This quotes [        ] (accepted by those appearing for the claimants as the same person referred to in KK 04/258) as referring to “… only a hundred families that had come back after the ouster of the Taliban regime. They still faced hardships in getting back their homes, shops and other assets”.
4.	The only material referred to on behalf of any of the claimants which calls for notice is the passage at § 38 of  IB & TK [2004] UKIAT 00150 (referred to in the passage cited above as IB 150), dealt with in KK 04/258 at § 22 as follows:

So far as ISAF [International Security Assistance Force] is concerned, the Tribunal in IB 150 at § 38 make clear that they do not intervene unless asked to do so by the interim administration, and there is no evidence of any such requests. While so far the street violence suffered by Sikhs and Hindus is not too serious, the fact that it occurs at all in the form related by [     ] suggests at least a perception on the part of Muslim hooligans that their victims will not receive any effective protection from the State authorities; and without that perception, such incidents might not happen. It certainly does not show any deliberate systematic persecution on the part of those authorities; but it does show a real risk of lack of effective protection from the system in place. To use a perhaps rather superficial analogy, this is not by any means Germany 1941; but it may be Germany 1936.
5.	We asked whether there were any further material directly bearing on [      ], whose evidence had been crucial to the result in KK 04/258. We were surprized to hear from Miss Jones (for two of the claimants in the cases before us) that this gentleman had recently been interviewed at the British Embassy in Kabul. That was exactly the sort of step we hoped would be taken, once our decision in KK 04/258 went out; but we were even more surprized to hear from Mr Sheikh that he was unable to tell us anything about the result of the interview than that he was unaware of any disclosable material resulting from it. At our invitation, he made further inquiries: we indicated that we would willingly put back the morning’s cases till later in the day, so that any disclosable material received could be considered; but Mr Sheikh, no doubt realistically, was unable to hold out any such hope. 
6.	
The system of “country guidance” cases, including ‘follower’ lists such as that in which these appeared, depends on parties doing what is necessary to get their material before the Tribunal when cases are listed. Under r. 40.2 of the Procedure Rules, we are not to adjourn hearings “… unless satisfied that the appeal … cannot otherwise be justly determined.” That shows the importance placed by Parliament on prompt decision-making. The [       ] interview, so far as we could discover, had taken place about a fortnight before our hearing. It was obviously likely to be   of considerable importance to the cases before us: given modern instantaneous means of communication, we saw no reason why it should not have been made available at the very latest by the time we sat in the afternoon, and refused any further adjournment for it to be produced. We very much hope that this will be done in good time for future cases of this kind.
7.	Mr Sheikh was inclined to criticize our decision in KK 04/258 as excessively “subjective” in its approach to the question of effective protection (see Horvath [2000] Imm AR 552 (HL)). The short answer to that is that any real excess in that direction would have been a clear error of law, which would no doubt have led to an application for permission to appeal to the Court of Appeal; but that did not happen. A somewhat longer answer is to be found in KK 04/258 § 22, set out above, to which we see no need to add anything now. The remaining general point he made was that, the [       ] incidents having happened in May – June this year, there had been nothing heard of any further ones. The time will come when such a point would have some real force; but that is not yet. Given the terms in which KK 04/258 was written, we think those acting for the present claimants are entitled to rely on the [        ] incidents as still relevant to the present situation.
8.	It follows that the success or otherwise of Mr Sheikh’s arguments in the cases before us depends on whether or not we take the further evidence to which we were referred as affecting the validity of the conclusions in KK 04/258. The State Department report certainly shows that the Afghan authorities are prepared to try to protect the gurdwara and its worshippers: though they were not able either to prevent or detect the grenade attack, that would not necessarily indicate a general failure of effective protection. However, the decision in KK 04/258 depended not on the authorities’ ability or willingness to provide protection for one conspicuous target; but on a lack of commitment, actual as well as perceived, to the protection of religious minorities generally. We do not think that what may or may not be adequate protection of one conspicuous target affects the validity of that decision. 
9.	So far as ethnic minority recruitment to the police is concerned, no doubt if successful it will change attitudes for the better in the long run (just as it has in this country); but there is nothing to show that so far it has got beyond a declared intention to attract such cadets to the new academy. On what ‘The Hindu’ quotes  [         ] as saying, we take Miss Baruah’s point that it does not purport to be a complete text of his remarks; and we also note that it (as the headline suggests) mainly refers to the concerns he raised with the Indian Government. We do not think it shows that by 25 October he no longer regarded casual street violence against Sikhs as the serious problem it had been in May and June.
10.	
It follows that we see no present reason to revise the general views expressed in KK 04/258. That may change in the light of any significant developments on the interview with [        ], or in the general background situation; or even, in time, if there is nothing further to indicate any continuing risk for Sikhs generally on return to Kabul. As this is the conclusion we have reached, there is no need in these cases for us to consider any individual features they may have, or the situation elsewhere in Afghanistan.
Claimant’s appeal allowed 
Home Office appeals 

John Freeman

approved for electronic distribution