A.S.N. and others v. The Netherlands
Andrea Debak
University of Split
This Case Commentary is written by Andrea Debak, a Law Graduate of University of Split
CASE DETAILS:
COURT: European Court of Human Rights
Date: 25 February 2020
Decided on: 07 September 2020
PARTIES:
Appelant: A.S.N. and others
Respondent: The Netherlands
INTRODUCTION
This case between A.S.N. and others and the state of Netherlands represents a legal battle that is especially meaningful because of the current situation in the world revolving around frequent population migration, specifically the migratory trajectories of Afghanistan’s Sikh communities to Europe.
Currently, Afghan Sikhs face a lot of difficulties in many parts of Afghanistan such as harassment, violence, and religious discrimination and because of that, there is a growing presence of Sikhs in numerous European countries.
The migration of Afghan Sikhs is explored through the analytical lenses of European regulations prescribed for granting asylum and also this landmark decision gives clarity on the conditions that need to be fulfilled before granting asylum and at the same time it sheds light on still-existing religious discrimination.
FACTS OF THE CASE
In this case, two separate lawsuits were filed, which the court joined together because of similar circumstances and legal backgrounds. The first request was submitted by a married couple on behalf of the children, Afghans, claiming that deportation from the Netherlands to Afghanistan would violate their right to life under Article 2 of the Convention. One day, the wife told to her husband that she’d go with her sister to the Sikh temple, and while she was there the Taliban kidnapped her and her sister. After that, the wife's brother started to receive many anonymous threatening letters demanding a ransom and suddenly he also disappeared. Finally, they decided to move to the Netherlands and applied for asylum, but each time they were rejected with an explanation that their accounts lacked credibility.
The second lawsuit was filed by a married Afghan couple also on behalf of the children with residence in Emmen. They also applied for asylum in the Netherlands claiming that they suffered from harassment, discrimination, and abuse. They were also rejected by Dutch authorities with similar explanations because they didn’t prove the existing risk of abuse.
ISSUES RAISED
1. Does the applicant meet the conditions necessary to be granted asylum?
2. Would the applicant's removal to Afghanistan constitute a breach of Articles 2 and 3 of the Convention?
CONTENTIONS OF THE PETITIONER
The applicants claimed that they had been subjected to torture, discrimination, and violence while in Afghanistan and that deportation would put them at risk of further abuse and discrimination because of their Sikh status. That would constitute a breach of Article 2 and Article 3 of the Convention.
CONTENTIONS OF THE RESPONDENT
However, the Dutch immigration authorities, which are responsible for approving asylum applications, stated that most Afghan Sikhs who claimed to have recently left the country did not sufficiently prove that and they rejected their asylum applications, claiming they lacked credibility.
Also, the Government of the Netherlands did not consider there is extreme violence in Afghanistan and therefore the removal of applicants would not constitute a violation of Articles 2 and 3 of the Convention.
RELATED PROVISIONS
The legal provisions, in this case, are:
- Provisions of the Law on Foreigners from 2000, the Regulation on Foreigners from 2000, and the Guidelines for the Implementation of the Law on Foreigners from 2000, as well as the Law on General Administrative Law are applicable.
- The qualification directive of the European Union which regulates the status of refugees
- Article 2 of the Convention stipulates the right to life. Everyone's right to life is protected by law and no one may be deprived of life.
- Article 3 of the Convention which prohibits torture and any other inhuman treatment.
JUDGEMENT OF THE CASE
On February 25, 2020, the European Court of Human Rights announced the verdict in this case and while making the final decision, the court analyzed :
1. the general situation in Afghanistan
2. the position of Sikhs as a minority community in Afghanistan
3. whether the applicants have additional/special characteristics
Having regard to the above, the European Court of Human Rights made a final decision in which it did not find that Articles 2 and 3 of the Convention were violated because the applicants failed to prove the existence of “limited indications” as well as the risk of ill-treatment in the case of deportation.
The court emphasized that preexisting abuse in the past is a strong indicator of the existence of a risk in the case of deportation and a potential violation of Article 3 of the Convention.
However, the court also stated that the applicants did not prove such circumstances and made them credible.
Furthermore, the court gave credence to the conclusions of domestic authorities and stated that there are no new circumstances that should make it deviate from its position, given that the case has already been thoroughly investigated.
In brief, the court pointed out that Sikhs in Afghanistan do not present a group that is constantly abused, tortured, or discriminated against and that their deportation, in this case, would not constitute a violation of Articles 2 and 3 of the Convention and also that national authorities are in the best position to evaluate the credibility of certain asylum applicants.
CONCLUSION
The situation of the Sikhs in Afghanistan currently is not optimal. Namely, Sikhs are threatened in many areas such as education, and employment, but especially in the area of practicing their religion.
According to this case, freedom of expression of religion is still limited due to violence and discrimination against religious minorities. The members of such minority religious groups are exposed to the risk of abuse, intolerance, and unwillingness of national authorities to intervene or at least facilitate the procedure for granting asylum.
Sikhs face specific legal challenges in their search for a safe place. Because of fact, they are the target of increasingly severe religious abuse, their need for asylum became frequent. As we can see in this case, Sikh asylum seekers are often rejected because those involved in the process do not understand the history and culture of Sikhs.
REFERENCES
European Court of Human Rights, ‘ A.S.N. and others V. The Netherlands’, Strasbourg, 2020., https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-201330%22]},
Council of Europe, ‘European Convention of Human Rights’ Rome 1950.