MJ and ZM (Ahmadis – risk)

JurisdictionEngland & Wales
JudgeSenior Immigration Judge Gleeson
Judgment Date19 December 2007
Neutral Citation[2008] UKAIT 33
CourtAsylum and Immigration Tribunal
Date19 December 2007

[2008] UKAIT 33

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Before

Senior Immigration Judge Gleeson

Senior Immigration Judge Spencer

Sir Jeffrey James KBE CMG (Non-Legal Member)

Between
MJ
ZM
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr T Cooray Instructed by Thompson & Co, solicitors

For the Respondent: Mr J Hall, Instructed by Treasury Solicitor

MJ and ZM (Ahmadis — risk) Pakistan CG

  • 1. The finding in IA and Others (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT 00088 that the existence of a majority Ahmadi community in Rabwah does not justify dismissing an appeal which would otherwise be allowed remains valid. Rabwah is no safer than elsewhere in Pakistan for Ahmadis, but the question whether it is an appropriate internal relocation option for an Ahmadi will always depend on the particular circumstances and facts of that individual's situation.

  • 2. In Pakistan as a whole, whilst it is clear that from time to time local pressure is exerted to restrict the building of new Ahmadi mosques, schools and cemeteries, and that a very small number of Ahmadis are arrested and charged with blasphemy or behaviour offensive to Muslims, the number of problems recorded is small and has declined since the Musharraf Government took power. Set against the number of Ahmadis in Pakistan as a whole, they are very low indeed. The courts do grant bail and all appeals against blasphemy convictions in recent years have succeeded.

  • 3. There is very sparse evidence indeed of harm to Ahmadis from non-state agents (though rather more anecdotal evidence of difficulties for Christians). The general risk today on return to Pakistan for Ahmadis who propagate the Ahmadi faith falls well below the level necessary to show a real risk of persecution, serious harm or ill-treatment and thus to engage any form of international protection.

  • 4. Where, exceptionally, the facts of a particular appellant's case indicate that such an appellant cannot be returned safely to their home area, the existence of an internal relocation option, either to Rabwah or elsewhere in Pakistan, is a question of fact in each such appeal.

DETERMINATION AND REASONS
1

The Tribunal in this determination reconsiders (on the application of the appellants) determinations which have been the subject of appeals to the Court of Appeal resulting in remittal by consent. Both appellants are Pakistani nationals and members of the Ahmadi faith from the Punjab (the first appellant is from Sargodha and the second appellant from the Jhelum area).

2

The first appellant is an Ahmadi convert; the second has always been Ahmadi. Although there have been concerns about the credibility of aspects of their accounts, at the beginning of the present hearing, Mr Hall indicated that the Secretary of State did not propose to take any credibility points on the core account of either appellant, save such as might emerge during his cross-examination of the appellants and their witnesses or in clarificatory questions from the Tribunal in the present proceedings.

Procedural history of these appeals
3

In each appeal, the Tribunal initially dismissed the appellant's challenge to the Secretary of State's decisions to refuse refugee recognition and leave to remain on human rights grounds and to set removal directions to Pakistan. In both cases, determinations of the Tribunal dismissing the appellant's respective appeals on reconsideration were quashed by the Court of Appeal and the appeals were remitted to the Tribunal for re-determination. In the case of the first appellant, the appeal was remitted:

“For re-determination on the issues of whether the appellant would be at risk if he were returned to Pakistan”

and in the case of the second appellant, on two bases, first, whether the appellant would be at risk if he were returned to Pakistan, and alternatively:

“Whether the appellant can be expected to relocate to Rabwah (to include consideration of the general safety of Rabwah for Ahmadis, as well as whether it would be unduly harsh to relocate there).”

4

These appeals were listed to follow the Tribunal's consideration of the general safety of Rabwah in IA and Others (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT 00088 the ratio of which is summarised in the following précis:

“Contrary to what is said in KM (Pakistan) [2004] UKAIT 00302, MM (Pakistan) CG [2002] UKIAT 05714, KK (Pakistan) [2005] UKIAT 00033, MC (Pakistan) [2004] UKIAT 00139, and AZ (Pakistan) CG [2002] UKIAT 02642, Rabwah does not constitute a safe haven for any Ahmadi at risk of persecution elsewhere in Pakistan and should not, without more, be treated as an appropriate place of internal relocation.”

5

Questions of internal relocation and undue harshness in relation to Rabwah are therefore questions of fact in relation to the particular circumstances of each appellant. In the first appellant's case, Immigration Judge Billingham held (in May 2005) that he was not satisfied that the appellant was a preacher and Ahmadi convert as alleged, and that the risk to him fell below the standard required for international protection. He dismissed the appeal under the Refugee Convention and under Articles 2, 3 and 9 ECHR. On 5 October 2005, the Tribunal ordered full reconsideration on the basis that the Immigration Judge had failed to consider and weigh the oral evidence of a witness who claimed to have been converted to the Ahmadi faith by the first appellant. The Immigration Judge had also failed to consider a good deal of the documentary evidence in the first appellant's bundle. The resultant lack of anxious scrutiny was a material error of law and fatal to that determination.

6

The appeal was heard afresh before Immigration Judges Shaerf and Glossop on 28 November 2005. They were satisfied that the appellant was indeed an Ahmadi convert but not that he was a preacher. The Tribunal considered that the appellant had not demonstrated (to the appropriate standard) a “credible record of active preaching” and doubted whether his learning in the Ahmadi faith was sufficient for the activities he claimed to have undertaken. In any event, they considered that internal relocation to Rabwah was appropriate, though they noted that “Rabwah may not be the haven previously believed by some”.

7

The first appellant now appealed to the Court of Appeal. He criticised the Tribunal's assessment of his documentary and other evidence on grounds of perversity, and in particular a finding that there was “no evidence” that he had been involved in preaching or hit on the head. There is no doubt that there was some evidence to that effect, the appellant's own oral evidence at the hearing. The proper approach would have been for the Tribunal to indicate whether that evidence was credible and what weight the Tribunal attached to it. The first appellant also challenged the Tribunal's finding that he had not preached at or near Ahmadi mosques and that this part of his account was an exaggeration.

8

The first appellant gave particulars of his human rights claim at this stage, now under Articles 2, 3, 5, 9, 10, 11 and 14 ECHR, arguing that his attempts to practise his faith in the past had met with extreme opposition requiring international protection. His case was that any Ahmadi who dared to practise his religion ran a real risk of persistent human rights breaches and that return to Pakistan would place him at grave risk of breaches of all those Articles. He reserved the right to augment his grounds of appeal later.

9

In the appeal of the second appellant, the first determination was of Adjudicator Boyd, promulgated on 2 September 2004. The Adjudicator accepted to the lower standard that the appellant had been the subject of some detentions by the Pakistani police and some adverse attention from Khatme Nabuwwat but not that he was of particular interest to either, nor that he was at risk entailing international protection in consequence of his previous experiences. The second appellants' Article 8 ECHR claim was considered “weak to say the least”. The appeal was dismissed and the appellant appealed to the Immigration Appeal Tribunal, as was then the procedure. His grounds of appeal were lengthy and rather diffuse, reasserting the second appellant's claim and challenging Adjudicator Boyd's findings of fact and credibility. On 7 December 2004, Vice-President Drabu (as he then was) of the Immigration Appeal Tribunal granted permission to appeal on the basis that the Adjudicator's credibility findings were arguably flawed.

10

The reconsideration hearing took place before Immigration Judge Aujla and Mr C Thursby, Non-Legal Member, on 3 March 2006. That Tribunal accepted the appellant's account of attacks by mullahs on two occasions and two arrests by the Pakistani police. The core account was accepted, with some reservations, having regard to the lower standard of proof appropriate to international protection claims. Nevertheless, the Tribunal considered the appellant to be an “unexceptional Ahmadi” as set out in KK (Ahmadi, unexceptional, risk on return) Pakistan [2005] UKAIT 00033, and not to be at risk of persecution on return.

11

In the alternative, the Tribunal considered that the appellant had an internal relocation option to Rabwah and that it would not be unduly harsh to expect him to exercise it, especially as it found that the appellant would not, whether openly or discreetly, engage in preaching if returned. The Article 8 ECHR decision had not been challenged, but for completeness, the Tribunal affirmed the approach taken by Adjudicator Boyd in the 2004 determination.

12

The second appellant appealed to the Court of Appeal. The grounds of appeal were filed out of time. He argued that the question of his preaching on return had never been put to him and that the Tribunal had failed to consider up-to-date...

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