A.S.N and others v The Netherlands: Removal of Sikh families to Afghanistan would not amount to violation of Article 3 ECHR

On 25 February 2020, the European Court of Human Rights published its judgment in the case of A.S.N and others v The Netherlands (Application Nos. 68377/17 and 530/18) concerning the risk of ill-treatment of Sikhs in Afghanistan.

The case concerns joint applications of two families from Kabul, Afghanistan. The families allege, inter alia, that they regularly experienced fear and harassment and that their children were bullied and beaten due to their Sikh religion. The domestic authorities rejected their applications on the basis that they lacked credibility and had failed to present plausible evidence of a real and individualized risk of ill-treatment. The applicants complain that their removal to Afghanistan would expose them to a real risk of treatment contrary to Article 3 ECHR. They further argue that they would experience difficulty, as a result of their religion, to find suitable housing, employment and schooling. 

The Court first noted that the general security situation in Afghanistan, at least in so far Kabul is concerned, had not deteriorated to such an extent that the return of the families to their country of origin, would expose them to a real risk of ill-treatment. On the general treatment of Sikhs in Kabul, the Court observed that aspects of the available evidence were a cause for concern. However, it was not satisfied that Sikhs were exposed to systematic discrimination or ill-treatment on the basis of their religion. Indeed, the Court noted that the applicants were able to practice their religion, a majority of Muslim communities showed support for Sikhs, and there was at least one Sikh school in Kabul. It added that the applicants needed to demonstrate the existence of further special distinguishing features which would present a real risk of treatment incompatible with Article 3 ECHR. The Court added that neither the severity threshold has been met in the present case nor has it been established that the case is so very exceptional that the humanitarian grounds against removal are compelling. It further considers that the final ground advanced by the applicants – namely the allegedly poor state of health of the third applicant in application no. 530/18 – has remained unsubstantiated. As a result, the Court concluded that the threshold of Article 3 had not been met.

Judges Lemmens, Vehabović and Schukking expressed partly dissenting opinion in relation to the manner in which the Dutch policy on returns to Afghanistan was applied in the present case and the majority’s assessment in this regard.

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