1) Abdul Hameed and Another v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Anthony Thornton |
| Judgment Date | 05 July 2016 |
| Neutral Citation | [2016] EWHC 1579 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No's: CO/15861/2013 |
| Date | 05 July 2016 |
[2016] EWHC 1579 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Anthony Thornton QC
Case No's: CO/15861/2013
CO/15860/2013
Gordon Lee (instructed by Duncan Lewis) for the Claimants
Andrew Deakin (instructed by Government Legal) for the Defendant
Hearing dates: 15 December 2014
Approved Judgment
His Honour Judge Anthony Thornton QC:
Introduction
I will refer to the first claimant as Abdul and to the second as Rashida. Abdul was born in December 1952 in Pakistan and Rashida in March 1955 also in Pakistan. They were married in Pakistan in January 1980. It is now accepted by the Secretary for State for Home Department ("SSHD") that both were at all material times of the Ahmadi faith having been born into families of that faith. The SSHD now also accepts that if either claimant is now returned to Pakistan, each is to be regarded as wishing and intending to practise their faith and to be considered to be at risk of persecution. Accordingly, by two decisions dated 27 January 2014, each was granted asylum by the SSHD for five years because they were in need of international protection.
These two consolidated claims for judicial review were initially filed on 21 October 2013 claiming their release from immigration detention, a declaration that their detention was unlawful and damages for unlawful detention. Abdul and Rashida had originally been detained on 9 July 2013 at their port of entry into the United Kingdom on their arrival there from Pakistan which they had fled from fearing religious persecution based on their Ahmadi faith. They were detained until released on bail on 22 October 2013. This claim has been continued as a claim for damages for unlawful detention for the period of 106 days between 9 July and 22 October 2013.
Ahmadi persecution in Pakistan and relevant Pakistan Country Guidance
The following summary is based on the evidence filed on behalf of Abdul and Rashida in their immigration appeals heard by the First-tier Tribunal ("FtT") in August 2013 that was concerned with the then current situation in Pakistan. Ahmadis are a minority Muslim sect which is significantly discriminated against in Pakistan by law and by many Muslims acting on behalf of state or Muslim bodies or privately. This discrimination arises because many Sunnis have intense and fundamental opposition to the Ahmadi faith and to those who practise it. Many Sunnis of that persuasion have considerable antipathy to any Ahmadi who speaks about their faith or shows any encouragement to those who are thought to be susceptible to conversion to it.
A statement from the Asian Human Rights Commission in 2013 that was in evidence in the immigration appeal in these cases recounted how Ahmadis in Pakistan were currently being persecuted by the police and fundamentalist Muslim groups and that that persecution was unabated. In June 2013 alone, two Ahmadis were gunned down by what were officially described as "unknown killers" in Karachi and Lahore and another was shot and seriously injured. In Sialkot, Ahmadis were stopped from offering Friday prayers by police who asked them to produce non-existent "No Objection Certificates" for offering prayers. Since anti-Ahmadi legislation was introduced into Pakistan in 1994, Ahmadis have neither been allowed to build a place for worship nor to pray at home. Their places of worship may not be called Mosques and any holy verses written there are desecrated and erased by the police and by fundamentalists. Many Ahmadi Mosques have been closed down so that communal prayers have had to take place in Ahmadi Community Centres whose comings and goings were continuously watched by Sunni antagonists.
Privately, Ahmadis were harassed and threatened by fundamentalists if they were known to practise their religion, however discretely, without fear of reprisals or retaliatory action from the police and threatened Ahmadis found it difficult or impossible to obtain police protection.
There was also evidence that practicing the faith of an Ahmadi in both Pakistan and Saudi Arabia involved considerable caution and furtiveness throughout the period from 1994 to 2013. No Ahmadi place of worship could be called a Mosque by law in either of those countries and no preaching, prophesising or discussion about the Ahmadi faith with a non-Ahmadi was permitted. Anyone who attended an Ahmadi Community Centre – usually a misnomer adopted to describe a Mosque — was liable to be harassed or harmed by local people who would observe the comings and goings into and out of Ahmadi Community Centres by Ahmadis and threaten and at times harm them. Local people would also force their way into the houses of suspected Ahmadis to look for copies of Ahmadi-based religious tracts. Anyone suspected of following the Ahmadi faith was liable to be hounded and threatened with physical harm. Given the high incidence of attacks on suspected Ahmadis, it was likely that any significant surveillance would lead to a real risk of being caused harm.
The relevant Country Guidance case-law of MN & Others (Ahmadis — country conditions — risk) Pakistan CG [2012] UKUT 389 (IAC) (14 November 2012), which had been promulgated prior to Abdul and Rashida's immigration appeal, provides instructive guidance as to the threats posed to those Ahmadis seeking to practise their religion in Pakistan and as to what an Immigration Tribunal should consider when deciding an appeal involving a claim for international protection or asylum based on threatened Ahmadi persecution in Pakistan:
"2. (i) The background to the risk faced by Ahmadis is legislation that restricts the way in which they are able openly to practise their faith. The legislation not only prohibits preaching and other forms of proselytising but also in practice restricts other elements of manifesting one's religious beliefs, such as holding open discourse about religion with non-Ahmadis, although not amounting to proselytising. The prohibitions include openly referring to one's place of worship as a mosque and to one's religious leader as an Imam. In addition, Ahmadis are not permitted to refer to the call to prayer as azan nor to call themselves Muslims or refer to their faith as Islam. Sanctions include a fine and imprisonment and if blasphemy is found, there is a risk of the death penalty which to date has not been carried out although there is a risk of lengthy incarceration if the penalty is imposed. There is clear evidence that this legislation is used by non-state actors to threaten and harass Ahmadis. This includes the filing of First Information Reports (FIRs) (the first step in any criminal proceedings) which can result in detentions whilst prosecutions are being pursued. Ahmadis are also subject to attacks by non-state actors from sectors of the majority Sunni Muslim population.
(ii) It is, and has long been, possible in general for Ahmadis to practise their faith on a restricted basis either in private or in community with other Ahmadis, without infringing domestic Pakistan law.
3. (i) If an Ahmadi is able to demonstrate that it is of particular importance to his religious identity to practise and manifest his faith openly in Pakistan in defiance of the restrictions in the Pakistan Penal Code (PPC) under sections 298B and 298C, by engaging in behaviour described in paragraph 2(i) above, he or she is likely to be in need of protection, in the light of the serious nature of the sanctions that potentially apply as well as the risk of prosecution under section 295C for blasphemy.
(ii) It is no answer to expect an Ahmadi who fits the description just given to avoid engaging in behaviour described in paragraph 2(i) above ("paragraph 2(i) behaviour") to avoid a risk of prosecution.
4. The need for protection applies equally to men and women. There is no basis for considering that Ahmadi women as a whole are at a particular or additional risk; the decision that they should not attend mosques in Pakistan was made by the Ahmadi Community following attacks on the mosques in Lahore in 2010. There is no evidence that women in particular were the target of those attacks.
5. In light of the above, the first question the decision-maker must ask is (1) whether the claimant genuinely is an Ahmadi. As with all judicial fact-finding the judge will need to reach conclusions on all the evidence as a whole giving such weight to aspects of that evidence as appropriate in accordance with Article 4 of the Qualification Directive. This is likely to include an enquiry whether the claimant was registered with an Ahmadi community in Pakistan and worshipped and engaged there on a regular basis. Post-arrival activity will also be relevant. Evidence likely to be relevant includes confirmation from the UK Ahmadi headquarters regarding the activities relied on in Pakistan and confirmation from the local community in the UK where the claimant is worshipping.
6. The next step (2) involves an enquiry into the claimant's intentions or wishes as to his or her faith, if returned to Pakistan. This is relevant because of the need to establish whether it is of particular importance to the religious identity of the Ahmadi concerned to engage in paragraph 2(i) behaviour. The burden is on the claimant to demonstrate that any intention or wish to practise and manifest aspects of the faith openly that are not permitted by the Pakistan Penal Code (PPC) is genuinely held and of particular importance to the claimant to preserve his or her religious identity. The decision maker needs to evaluate all the evidence. Behaviour since arrival in the UK may also be relevant. If the claimant discharges this burden he is...
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