Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/04738/2012
AA/04739/2012
AA/04740/2012
AA/04741/2012
AA/04742/2012

THE IMMIGRATION ACTS

Heard at Field House
Date sent
On 20th June 2013
On 24th June 2013

Before

UPPER TRIBUNAL JUDGE REEDS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

MR MANOJ SINGH AHUJA
MISS ANGEL KOUR AHUJA
Mr Jatin Singh Ahuja
mrs kesar devi
miss parveena kaur ahuja

Respondents

Representation:

For the Appellant: Mr C Avery, Senior Home Office Presenting Officer
For the Respondents: Mr E Nicholson, Counsel instructed by Times Immigration Consultants Ltd

DETERMINATION AND REASONS

1. The Secretary of State appeals against a determination of the First-tier Tribunal (Judge Birkby) sitting in Bradford IAC who in a decision promulgated on 28th June 2012 allowed the appeals of the Respondents.
2. They are Afghan citizens and are followers of the Sikh religion and, consistently with the First-tier Tribunal, are hereinafter referred to as “the Appellants.”
3. The first Appellant was born on 1st January 1997, the second on 25th September 2010, the third Appellant on 20th March 2006, the fourth Appellant was born on 1st January 1979 and the fifth Appellant was born on 17th February 2004. The first and fourth Appellants are husband and wife and they are the natural parents of the second, third and fifth Appellants.
4. The facts relevant to the Appellants’ appeal are set out in the determination of the First-tier Tribunal. It is said that when the first Appellant was approximately 3 years old he and his family moved from the province of Khost, where he was born to the Karte Parwan area of Kabul. He attended school there and also attended the Guru Nanak Darman School. The family’s persecution due to its Sikh religion began after the overthrow of the Communist regime by the Mujahedden in the early 1990s. In 1994, the Appellant’s father and elder brother were beaten when the Mujahedden raided the Appellant’s father’s shop and money and goods were stolen. After the Taliban came to power, Mr Harbands Singh was kidnapped. A ransom was demanded for his return but he was murdered by the kidnappers. The murder of Harbands Singh led to the family’s decision that they should leave Afghanistan. In 2000, the first Appellant went to Moscow, surviving by selling goods and by 2002 he returned to Afghanistan briefly and married his wife. In 2005 she and their daughter joined the first Appellant in Moscow. Their son and youngest daughter were born in Moscow in 2006 and 2010. It is asserted that the Appellants were subjected to racism and violence in Russia and was asked to pay protection money and when unable to do so was beaten. Throughout the stay in Moscow the family obtained “visas” via an agent. In 2009 the agent took the passport ostensibly to renew it but disappeared and never returned it.
5. In 2011 the Appellant’s nephew Ronak Singh was kidnapped in Kabul. A ransom was demanded, but the kidnappers killed Ronak before his father Naam Singh could amass the money they had asked for. Later the same year the Respondent and his family left Moscow and travelled to the UK where they applied for international protection.
6. The appeal came before the First-tier Tribunal (Judge Birkby) sitting at Bradford who heard evidence from the Appellant and his wife. In a determination promulgated on 28th June 2012, he allowed their appeals.
7. It is clear from the determination that contrary to the assertions made in the refusal letter, the judge was satisfied that the Appellants were all Afghan nationals and were also followers of the Sikh faith.
8. The judge set out his findings in respect of those matters at paragraphs 33 to 36 of the determination. At paragraphs 37 to 44 he considered the risk on return to Afghanistan faced by Sikhs. In his assessment of the risk to these Appellants, he gave consideration to the country guidance decision of SL and Others (Returning Sikhs and Hindus) Afghanistan CG [2005] UKIAT 00137 but reached the conclusion that this was a decision of some antiquity but also that he was able to depart from that country guidance case because the evidence that was before the First-tier Tribunal demonstrated that some of the factual evidence relied upon by the Tribunal in SL had been found to be demonstrably wrong. That evidence related to the numbers of Sikhs in Afghanistan at the time of the country guidance case and the more recent and up-to-date evidence which demonstrated that the numbers given in that determination which was said to number as many as 20,000 people was wrong. The judge had before him what he described as “substantial documentation” consisting of updated country materials, a report from Dr Roger Ballard, consultant anthropologist and also the decision of Collins J in Luthra v SSHD (CO/5248/2010) dated 7th December 2011. Having considered the material before him, the judge was satisfied that the Sikh population in Afghanistan was considerably smaller than it was assumed to be at the time of the country guidance case in SL v Others noting that from the evidence before him the current Sikh population was closer to 3,000 in number rather than the 20,000 it was considered to be at the time of SL and Others. The judge placed weight upon the assessment of Dr Ballard alongside the other evidence before him and reached the conclusion that discrimination against Sikhs, physical and verbal abuse of Sikhs, the fear of Sikhs had of various forms of retaliation if they were to pursue for example land disputes or restitution, continued virtually unabated. He adopted the conclusions of Dr Ballard which included that the remaining members of the Sikh community found themselves vulnerable after aggressive exploitation against which they had no meaningful defence and that on the basis of the evidence before him, the Sikh community was facing forms of discrimination, abuse and ill-treatment which he found to amount to persecution. In respect of the Appellants, he found that they would return to a general level of persecution against people of their faith as Sikhs and that they would not be able to escape that in Afghanistan nor would they be able to find protection from the authorities as the evidence before him demonstrated that it would not be available to them. Consequently he allowed the appeals.
9. The Secretary of State sought permission to appeal that decision and it was refused by the First-tier Tribunal on 12th July 2012. Permission was granted upon renewal by the Upper Tribunal on 17th September 2012.
10. The case was originally listed before the Upper Tribunal on 19th December 2012 before a panel, Upper Tribunal Judge Jordan and Deputy Upper Tribunal Judge Grant. It is clear from the note provided by Mr Nicholson that the panel were not able to hear the case to its conclusion on that day and adjourned the appeal. Following the adjournment, on 18th April 2013 Upper Tribunal Judge Jordan gave directions in the appeal following the promulgation by the Tribunal of the decision in DSG & Others (Afghan Sikhs: departure from CG) Afghanistan [2013] UKUT 00148 (IAC). In the light of that decision a direction was issued to the Secretary of State in the following terms:-
“The Secretary of State is to inform the Tribunal and the Appellants in writing by 9th May 2013 whether, in the light of the decision in DSG & Others (Afghan Sikhs: departure from CG), the Secretary of State maintains her contention that the judge erred in law by departing from the country guidance set out in SL and Others (Returning Sikhs and Hindus) Afghanistan CG [2005] UKAIT 00137.”
Other consequential directions were given .
11. Thus the appeal came before the Upper Tribunal. Mr Avery appeared on behalf of the Secretary of State and Mr Nicholson on behalf of the Appellants. At the outset of the appeal, Mr Avery conceded that there had been no compliance with the direction made by Upper Tribunal Judge Jordan and consequently the Secretary of State had failed to provide in writing whether, in the light of the decision in DSG the Secretary of State maintained the contention that the judge had erred in law. In his submission, he did not seek to withdraw the grounds but recognised that since the grounds had been settled, the decision of DSG (as cited) put the Secretary of State in difficulty demonstrating that the judge had made an error of law. Thus he made no further submissions.
12. Mr Nicholson on behalf of the Appellants relied upon a response that he had filed with the Tribunal on an earlier occasion dated 19th December 2012. He submitted that the judge was fully entitled to depart from the decision in SL for the reasons that he had given in the determination. He submitted that the reliance by the Secretary of State upon the country guidance determination in SL and Others was misplaced and that that had been upheld in the decision of DSG. There had been no appeal by the Secretary of State against the decision of the Tribunal in DSG and thus it was good law. The question in this appeal was whether the judge was entitled to depart from the country guidance case of SL. In this appeal it was clear that the judge was entitled to do so given the contents of the determination of the Tribunal in DSG and it could not be said that the judge had given insufficient reasons for departing from the country guidance as asserted by the Secretary of State. The judge had set out his reasons at paragraphs 38 to 44 of the determination and the evidence that he had made reference to, for example, the report of Dr Ballard and the decision of Collins J. in Luthra, was strikingly similar evidence to that before the Tribunal in DSG. The judge gave careful consideration to that documentary evidence and in accordance with the Practice Direction and Guidance Note he was justified to depart from the country guidance in SL and gave adequate reasons for doing so, based on his assessment of the country materials and the report of Dr Ballard, which had not been challenged. The Secretary of State has produced no evidence to challenge Dr Ballard’s report nor have they sought to do so in the grounds. For those reasons, it had not been demonstrated that the judge had made an error of law in his determination and the decision should therefore stand.
13. The principal ground relied upon by the Secretary of State in this appeal is that the First-tier Tribunal was in error by departing from the country guidance case of SL and Others (as cited) and secondly, that if he sought to depart from the country guidance, the judge did not give adequate reasons for doing so. There is no challenge by the Secretary of State to the facts of this appeal as set out earlier. There has also been no challenge to the country materials and the expert report referred to by the First-tier Tribunal in the determination.
14. Since the grant of permission, the Tribunal has considered the question of the departure from country guidance cases in DSG & Others (Afghan Sikhs: depart from country guidance) Afghanistan [2013] UKUT 00148 (IAC), on similar grounds to the present appeal. In that case the First-tier Tribunal Judge had considered current and up-to-date country materials relevant to the risks faced by Sikhs on return to Afghanistan. The documents before the FtT in that appeal included an expert report written by Dr Giustozzi, the decision of Collins J in R (on the application of Luthra v SSHD) [2011] EWHC 3629 (Admin) and had a report from Dr Roger Ballard entitled “The History and Current Position of Afghanistan’s Hindu and Sikh Population”.
15. The judge in the appeal made reference to the country guidance decision of SL and that he was bound to consider it, but that he could depart from the country guidance if the position had changed. He noted that in SL the Tribunal had relied on figures given to them concluding that the Sikh and Hindu communities were in a total in the region of some 20,000 persons of whom a substantial proportion were within Kabul and that against those numbers the specific cases cited to it did not support a risk of persecution in general to the entire community but rather pointed to the conclusion that they were simply victims of random opportunistic acts. After considering all the material that was before him, including the report of Dr Giustozzi, the report of Dr Ballard and the decision by Collins J alongside the other country materials, led the judge to conclude that he was entitled in the circumstances to depart from the country guidance of SL and consequently allowed the appeal.
16. The Secretary of State sought permission to appeal that decision on similar grounds to the grounds argued before this Tribunal. The Tribunal by reference to the Practice Direction and the Guidance Note reached the conclusion that the judge had directed himself entirely appropriately and that it was open to the judge “in the light of the glaring differences in the figures (3,700 as opposed to 20,000) to consider the Tribunal figures in SL were significantly wrong.” In those circumstances the Tribunal was satisfied that the judge was entitled to depart from the country guidance case and that he had given adequate reasons for doing so.
17. It is plain from the determination of the First-tier Tribunal in this appeal that the judge gave careful consideration to the country guidance decision of SL at paragraph 38 and did so in the light of the submissions made by Counsel and on the same footing as those made before the Tribunal in DSG, namely that the country guidance decision of SL should not be followed given the discrepancy in respect of the numbers concerning Sikhs in Afghanistan. The judge also considered the country guidance decision in the light of the large volume of more recent material that was before him which included the report from Dr Ballard, the decision of Collins J in Luthra and other country materials (I refer to paragraph 39). Having considered the contents of what he described as “substantial documentation”, he reached the conclusion that the Sikh population in Afghanistan was now considerably smaller than it was assumed to be at the time of the country guidance in SL. He said this at paragraph 42:-
“42. I am satisfied on the basis of substantial documentation, some of which I have referred to, that the Sikh population in Afghanistan is now considerably smaller than it was assumed to be at the time of the country guidance case of SL v Others. Indications vary in the documentation, the most recent indication being in the order of 3,000 Sikhs still living in Afghanistan. Dr Ballard in his conclusions has given a full analysis of the difficulties in making a precise assessment, but the evidence indicates that the current Sikh population is closer to 3,000 rather than the 20,000 which it was considered to be at the time of SL v Others, namely in the order of 20,000. What is clear from the background documentation and in particular from the evidence of Dr Ballard which I have cited is that discrimination against Sikhs, physical and verbal abuse of Sikhs, the fear of Sikhs of various forms of retaliation if they were to pursue for example land disputes, restitutions, continues virtually unabated. Dr Ballard concludes that the remaining members of the Sikh community find themselves furthermore vulnerable to aggressive exploitation against which they have no meaningful defence.
43. I have concluded therefore that the evidence is now so substantial that the basis for the conclusions in the case of SL v Others no longer holds. On the basis of the evidence before me, the Sikh community in Afghanistan is facing such forms of discrimination, abuse and ill-treatment which I find can only amount to persecution. The reduction in numbers over the years confirms the Sikhs themselves can no longer tolerate the situation and have used whatever means are available to leave their homes to escape such persecution.”
18. Those paragraphs have to be read in the light of the judge’s earlier recitation of the parts of the documentation and material before him that he had set out at paragraphs 38 to 40. Thus the judge concluded that were the Appellant and members of his family now to return to Afghanistan that they would face a general level of persecution against people of their faith as Sikhs which they would not be able to escape and that from which they would have no protection provided for them by the authorities as the evidence did not demonstrate that.
19. In the light of the decision of DSG (as cited) the judge was entitled to depart from the country guidance case in SL for the reasons that he gave. It was entirely open to the judge to do so because of the distinctive and different nature of the background material and evidence that was provided before him. It is also plain from the determination that the judge gave careful consideration to what is described as the “substantial documentation” before him concerning the present risks faced by Sikhs returning to Afghanistan and place weight, as he was entitled to do on that evidence including the report of Dr Ballard which he set out at paragraphs 40 and 42 where he described discrimination, physical and verbal abuse of Sikhs which was continuing “virtually unabated” and that those remaining members were vulnerable to aggressive exploitation against which they had no meaningful defence nor any level of protection.
20. Thus the judge concluded at paragraph 44 that on the basis of the evidence before him, which have not been the subject of challenge before this Tribunal by the Secretary of State, that the Appellants would be at risk of persecution on return to Afghanistan.
21. Those findings were entirely sustainable ones and were open to him on his assessment of the material that had been placed before him, including the expert evidence which the Secretary of State has not challenged by the submission of any other report. I am satisfied that the judge gave adequate reasons for reaching this decision which can be seen at paragraphs 38 to 44 of the determination. Whilst the Secretary of State in the grounds has said that they were “inadequate” that has not been explained any further by reference to the determination and consequently, I am not satisfied that it has been demonstrated that the judge erred in law and his decision allowing the appeals shall stand.
Decision
The decision of the First-tier Tribunal did not involve the making of an error on a point of law; the decision shall stand. The appeals are allowed.

Signed Date: 20/6/2013

Upper Tribunal Judge Reeds