The Sikh community in Afghanistan used to be a sizeable religious minority within that country, but the effect of persecution over the past 30 years has meant that 99% have now emigrated. The United Nations and other international observers estimate that there may be only 1,000 Sikhs left in Afghanistan, primarily in Kabul.

Nevertheless, the European Court of Human Rights has ruled that there is no general risk of torture or inhuman or degrading treatment for Afghan Sikhs, and that there would be no breach of Article 3 of the human rights convention by removing a Sikh family to Afghanistan. The case is A.S.N. and Others v The Netherlands (application nos. 68377/17 and 530/18).

No general risk

The Strasbourg court noted that Sikhs experience various forms of societal discrimination in Afghanistan, despite the equality protections in the Afghan constitution. But the court also placed great weight on the view of the Sikh member of the Afghan National Assembly that the Muslim population of Afghanistan is generally supportive of Sikhs. It concluded that there is no generalised risk of Article 3 breach:

the Court is, on balance, not persuaded that the situation of Sikhs in Afghanistan is such that they can be said to be members of a group that is systematically exposed to a practice of ill‑treatment.

Evidence going to that conclusion included documents from the UN Refugee Agency and European Asylum Support Office:

…whilst both UNHCR’s 2016 Guidelines and the version of that document as updated in 2018 say that Afghan Sikhs may have international protection needs, the question whether that is indeed so for a particular person is explicitly stated to be dependent on the individual circumstances of the case… Similarly, in its “Country Guidance: Afghanistan”, EASO takes the view that Sikhs may have a well-founded fear of persecution in relation to certain risk-enhancing circumstances, but that organisation has not listed Sikhs in the category of individuals who would, in general, have a well-founded fear of persecution.

This is consistent with the view of the Upper Tribunal in
TG and others (Afghan Sikhs persecuted) (CG) [2015] UKUT 595 (IAC) and the Home Office’s country policy and information note on Hindus and Sikhs, Afghanistan, May 2019.

Families not at risk

The finding of no generalised risk left open the possibility that the applicants could successfully demonstrate that they specifically would be at risk on return. But the court also found that there was no risk for these families, primarily because they have a male breadwinner and the Afghan government still provides some support for a Sikh school in Kabul:

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 (see paragraphs 83-84 above). Furthermore, and as already noted above (see paragraph 110), 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 severity threshold”, the court concluded, “has not been met in the present case”.

Inadequate scrutiny by the Dutch authorities

The most controversial element of the decision is the court’s approach to the decisions taken in the case by the Dutch authorities. The Strasbourg court identified a serious flaw in the Dutch policy on asylum claims by Afghan Sikhs, but nonetheless refused to order that the family’s case be reconsidered at domestic level.

In a dissenting opinion, Judges Lemmens, Vehabovic and Schukking (three of the seven judges hearing the case) said that they would have found a procedural violation of Article 3 and left it to the Dutch authorities to reconsider the asylum applications on a lawful basis. They argued that this would reflect the subsidiary role of the European Court of Human Rights and its institutional competence relative to national governments.

In light of the 4-3 split, and the fact that the judges were divided on a matter of fundamental importance regarding the constitutional position of the Strasbourg court, it seems likely that the Grand Chamber will want to hear this case itself. The applicants have a strong case that once the court has identified a failure at domestic level, the appropriate course of action is to rule that there has been a breach of Article 3 and allow the case to be re-considered domestically.

UK as a better model?

Perhaps most surprising — or gratifying, depending on your point of view — is that the dissenting opinion also commends the UK Home Office policy on Afghan Sikhs. It calls the Home Office approach a “source of inspiration” to other governments seeking to devise an asylum policy on this issue.