Gulzar Ahmad and Others v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date06 October 1989
Date06 October 1989

Court of Appeal

Slade, Balcombe, Farquharson LJJ

Gulzar Ahmad Manzoor Ahmad Mohamed Haeem Khan
(Appellants)
and
Secretary of State for the Home Department
(Respondent)

A Riza for the appellants

D Pannick for the respondent

Cases referred to in the judgments:

Bugdaycay and ors v Secretary of State for the Home DepartmentELR [1987] AC 514: [1987] Imm AR 250.

Mendis v Immigration Appeal Tribunal and Secretary of State for the Home Department [1989] Imm AR 6.

R v Secretary of State for the Home Department ex parte Gulzar Ahmad and ors (unreported, QBD, 9 March 1988).

Political asylum — religious persecution — applications by members of the Ahmadi community refused by Secretary of State — discriminatory government decree — Ahmadis forbidden inter alia to proselytise or adopt the styles and titles of Muslims — whether refusal of political asylum reasonable — whether Secretary of State's approach was consistent with settled law — whether the government decree per se could be held to be an act of persecution against all Ahmadis. HC 169 paras.73, 134.

Appeals from Macpherson J. The appellants were citizens of Pakistan, members of the Ahmadi community. In April 1984 a government decree was promulgated which introduced new and additional discrimination against members of the sect. In particular they were forbidden to proselytise* which caused difficulties for adherents of a messianic movement. The appellants arrived at Heathrow in August 1984 and claimed political asylum. Their applications were refused in April 1985. An application for judicial review was dismissed. The applicants appealed. Counsel argued that the persecution of the sect had increased after the ordinance had been promulgated. Affidavit evidence from the appellants asserted they had been the victims of discrimination. Furthermore, the Ahmadis were an evangelical sect; its members had a duty to seek converts: if they carried out that duty they would suffer persecution under the ordinance. Relying on Bugdaycay, counsel also argued that the Secretary of State had not adopted the correct approach, nor had he carried out all the enquiries which he should have done. For the Secretary of State it was argued, inter alia that while the ordinance per se was discriminatory, it would not make the appellants liable to persecution simply by being members of the sect: they had not indicated to the immigration officer or the Secretary of State that they would personally feel bound to seek to make converts or otherwise breach the provisions of the ordinance.

Held:

1. The Secretary of State had not erred in his approach. He was obliged to examine the ordinance to establish its prohibitions, then to find out the practical impact of the ordinance on the ordinary lives of individual adherents to the sect, and then to consider the position of each appellant against that background. The evidence showed that he had done so.

2. Their cases depended essentially on what they would feel obliged to do, in proselytising, if they returned to Pakistan. They had not put any such case to the immigration officer or the Secretary of State, nor had they ever been specific about the reasons why they might be driven to contravene the provisions of the ordinance.

3. The Court had left open, in Mendis the question whether a person could claim refugee status on the basis of what, if he returned to his country, he would feel obliged to say or do. The Court, on the facts, found it unnecessary to decide that question in this case but obiter, per Farquharson LJ, recorded some views on that issue within the context of religious persecution.

Slade LJ: I have asked Farquharson LJ to deliver the first judgment in this case.

Farquharson LJ: On 2 August 1984 each of these appellants arrived at Heathrow Airport from Pakistan and applied for asylum in the United Kingdom on the ground that he feared persecution in his own country because of his religion. The applications were refused by the Secretary of State on 23 April 1985, because he was not satisfied that their fear of persecution was well-founded.

In May 1985 the appellants sought leave to apply for judicial review of the decision of the Secretary of State. Through no fault of theirs such leave was not granted until 21 January 1986. The application for judicial review was heard by Macpherson J on 9 March 1988, and the present appeal is against his refusal of that application.

It appears from their affidavits that the applicants, who are all in their 20's, are members of the Ahmadiya community in Pakistan. This sect, according to an affidavit, was founded in the last century by Mirza Ghulam Ahmed, who claimed to be the last prophet of Islam. There are about four million Ahmadis in Pakistan alone, but this is a small proportion of the total population of that state.

Since the formation of Pakistan in 1947 the existence of this community has been precarious; there has been hostility shown towards them by other larger religious groups.

On 26 April 1984 the President of Pakistan published an Ordinance, No XX of 1984, imposing severe curbs on the practice of the Ahmadi religion. The most important prohibition is contained in paragraph 298C of that Ordinance, which reads as follows:

‘Any person of the Quadiani group or the Lagori group (who call themselves Ahmadis or by any other name), who, directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith by words, either spoken or written, or by visible representations, or in any manner whatsoever, outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.’

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