KK (Ahmadi – Unexceptional – Risk on Return)
| Jurisdiction | England & Wales |
| Judge | VICE PRESIDENT |
| Judgment Date | 04 February 2005 |
| Neutral Citation | [2005] UKIAT 33 |
| Court | Immigration Appeals Tribunal |
| Date | 04 February 2005 |
[2005] UKIAT 33
IMMIGRATION APPEAL TRIBUNAL
Mr J Freeman (Vice President)
HH Judge Huskinson (Vice President)
Mrs G Greenwood
For the Appellant: Ms Pal (Home Office Presenting Officer)
For the Respondent: Mr Ian Lewis (Counsel — instructed by Thompson & Co)
KK (Ahmadi — Unexceptional — Risk on Return) Pakistan
The Secretary of State appeals to the Tribunal, with permission, from the determination of Professor Rebecca M M Wallace, Adjudicator, promulgated on 6 February 2004 whereby she allowed on asylum grounds and human rights grounds the appeal by the Respondent (hereafter called “the Claimant”) against the Secretary of State's decision to refuse asylum to the Claimant and to refuse him leave to enter the United Kingdom and to propose to give directions for the removal of the Claimant to Pakistan.
This case was listed with a view to it being a country guidance case and it may be treated as such. It is however important to notice that the matters which we decide in this determination are limited, having regard to the facts of this particular case. This case was listed for hearing together with certain other cases involving Claimants who were members of the Ahmadi faith where various other points arose, i.e. points other than those arising in this present case. At the hearing on 23 September 2004, having regard to the time available for argument and the number of matters raised in these other cases, these other cases (save for those which were capable of being immediately dealt with and which were decided by a remittal) were adjourned and this present case was the only case argued before us. We are, of course, concerned only to decide so much as is necessary to determine this present case. Insofar as points emerged in the argument which are not needed to be decided in the present case, but which may be central in other cases as yet un-argued, we leave those points to be decided in the future cases.
In summary, and as is explained in greater detail below, this case raises the question of whether there is a real risk of persecution or Article 3 infringing treatment on return to Pakistan for a person who is a member of the Ahmadi faith but who is otherwise unexceptional and who we will, for convenience, refer to as an “unexceptional Ahmadi”. By this expression we mean, in relation to the present Claimant, a man who is of the Ahmadi faith but:
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(i) has no record of active preaching and is not a person in respect of whom any finding has been made that there is a real risk that he will preach on return;
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(ii) has no particular profile in the Ahmadi faith;
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(iii) has no history of persecution or other ill-treatment in Pakistan related to his Ahmadi faith; and
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(iv) has no other particular feature to give any potential added risk to him (e.g. by being a convert to the Ahmadi faith).
In summary the present Claimant is a member of the Ahmadi faith, whose home area is Rabwah, but as regards whom there are no additional risk factors specific to him beyond the mere fact that he is a member of the Ahmadi faith from Rabwah.
It is not necessary to set out the Claimant's account on the basis of which he claimed asylum because, save for the fact that the Claimant is of the Ahmadi faith, the Adjudicator did not believe his account. There has been no cross appeal by the Claimant against this finding. The Adjudicator did however accept that the Claimant was a member of the Ahmadi faith. She would also appear to have accepted (and it was on this basis that the case was argued before us by both representatives) that the Claimant's home area was Rabwah where he had lived from his birth (20 November 1977) until about 1999 when he went to Lahore.
The Adjudicator not only rejected as not credible the Claimant's account as summarised by her in paragraphs 5, 6, 9 and 10 of her determination, but she also found that, even if the Claimant's account was to be accepted as true, he had only narrated two incidents of problems and that the alleged ill-treatment was not such as constituted persecution. Notwithstanding this finding, however, the Adjudicator then went on to examine certain objective evidence in paragraphs 24 to 26 of the determination including provisions of the penal code, various matters referred to in the CIPU Report on Pakistan, evidence regarding Khatma Nabuwat, and also Article 18 of the United Nations 1966 Covenant on Civil and Political Rights. She referred to Pakistan's failure to sign the Covenant which she concluded reinforces the vulnerability of minority religions in Pakistan. She concluded there was an insufficiency of protection and that the police do not intervene to prevent violence. She referred to the application of Ordinance XX as being ad hoc and as being on the statute book and she stated that it can and has been applied with rigor and that when it is this amounts to persecution on the basis of religion and to treatment which is contrary to Article 3. In paragraph 27 of the determination she reached this conclusion:
“Accordingly, given the low standard of proof and given the Appellant is accepted as an Ahmadi there would be a real risk of an engagement of the Refugee Convention in respect of the Appellant by virtue of his religion. Ahmadis are at risk and there is an insufficiency of protection and this insufficiency extends throughout the country.”
Accordingly the substance of the Adjudicator's determination is that all Ahmadis, including all unexceptional Ahmadis as described above, are at real risk of persecution throughout Pakistan, whether they come from Rabwah or elsewhere.
On behalf of the Secretary of State Ms Pal relied on the grounds of appeal which she developed in argument. In summary she contended that the Adjudicator erred in law in the following ways:
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(i) She argued that, bearing in mind the findings of the Adjudicator in paragraph 23 of the determination (to the effect that the Claimant's account was not credible and that even if it was credible the Claimant had not been subjected to persecutory treatment in Pakistan) the Adjudicator had failed to give any reasons which were sustainable in law as to why, despite these findings, the Claimant would be at real risk of persecution on return. Bearing in mind the Adjudicator's finding that every member of the Ahmadi faith would, for that reason alone, face persecution on return, she argued that clear and sufficient reasons for such a finding would be required.
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(ii) She drew attention to a previous reported Tribunal determination of [2003] UKIAT 00198A (Pakistan) notified on 9 October 2003 which was therefore available to the Adjudicator. She argued that this case, which was a stronger case for the applicant in that case as compared to the present Claimant, showed that even if an applicant is an Ahmadi who has been found to be a preacher, this will not necessarily result in that applicant being entitled to succeed under the Refugee Convention. She referred to paragraphs 11.5 and 11.6 of the decision in 198 A and reminded the Tribunal that here there is no finding that the Claimant either has preached or will preach. She argued that the Adjudicator's determination in the present case is contrary to the Tribunal reasoning in 198 A.
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(iii) She argued that as the Claimant is not a preacher there is no real risk that he would even ever be identified as an Ahmadi on return and for that reason alone would be at no real risk. She relied on the Tribunal determination in [2004] UKIAT 00139MC (Pakistan) which she argued also showed that there was no real risk on return to someone merely because they were a member of the Ahmadi faith.
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(iv) She accepted that Ahmadis were at risk of receiving some degree of societal harassment and discrimination, but she argued that to assert that every Ahmadi faces a real risk of persecution is unsustainable. She drew attention to the CIPU Report on Pakistan of April 2004 especially at paragraphs 6.81...
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