Ullah v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HARRISON |
| Judgment Date | 16 July 2002 |
| Neutral Citation | [2002] EWHC 1584 (Admin) |
| Docket Number | Case No: CO/5212/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 July 2002 |
[2002] EWHC 1584 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
The Strand
Mr Justice Harrison
Case No: CO/5212/2001
MR M SOORJOO appeared on behalf of the APPLICANT
MISS L GIOVANNETTI appeared on behalf of the RESPONDENT
The claimant seeks judicial review to quash a determination of the adjudicator, Mrs Nicholls, promulgated on 17th September 2001, when she dismissed the claimant's appeal against the Secretary of State's refusal to grant him asylum and also dismissed the claimant's human rights appeal. Permission to bring this application was given by Mr Jack Beatson QC, sitting as a Deputy High Court judge, on 12th April 2002 when he expressly limited the permission he granted to the claimant's ground under Article 9 of the European Convention on Human Rights.
The claimant is a citizen of Pakistan who is an active member of the Ahmadi faith. He came to the United Kingdom on 15th January 2001 and claimed asylum which was refused by the Secretary of State who certified the claim under paragraph 9 of schedule 4 of the Immigration and Asylum Act 1999.
The claimant appealed against the Secretary of State's decision to refuse him asylum. He also appealed under section 65 of the 1999 Act, on the ground that his return to Pakistan would be contrary to a number of Articles of the European Convention on Human Rights, including Article 9. When dismissing his appeals, the adjudicator upheld the Secretary of State's certificate so that there was no further right of appeal to the Immigration Appeal Tribunal. It is therefore the adjudicator's decision which the claimant seeks to impugn.
In her determination the adjudicator recorded that the claimant is a member of the Ahmadi faith, that he has been an Ahmadi since birth and that his family are Ahmadis. He had no difficulties until December 1998 when he started to preach to others about the faith.
In paragraphs 22 to 26 of her determination, the adjudicator summarized the problems faced by Ahmadis in Pakistan by reference to the background material, particularly the CIPU report and a press release from Amnesty International. Mr Soorjoo, who appeared on behalf of the claimant, referred me to the US State Department Report for 2000, which was also before the adjudicator. That document refers to the Government's insertion of section 298 (C) into the Penal Code, prohibiting Ahmadis from calling themselves Muslim and banning them from using Islamic words, phrases and greetings. The US State Department Report states that Government and anti-Ahmadi religious groups have used that government and Ahmadi religious groups have used that provision extensively to harass Ahmadis, who suffer from various restrictions on religious freedom, freedom and widespread societal discrimination. Reference is also made to the blasphemy provision of the Penal Code, whereby section 295 (C) now provides for the death penalty for directly or indirectly defiling the sacred name of the holy Prophet Mohammed, a provision which has been used by rivals and local authorities to threaten, punish and intimidate Ahmadis, amongst others. The background evidence therefore was that followers of the Ahmadi faith can suffer serious discrimination and interference with their ability to practise their faith.
The claimant's asylum claim was based to a significant extent on two incidents of alleged serious violence towards him which the adjudicator disbelieved for reasons that she gave. The adjudicator accepted that the claimant may have been beaten on one occasion by a police officer when trying to disperse a crowd intent on attacking the local Mosque, but she remarked that it was an unfortunate incident in which the claimant was caught up rather than a personal attack on him. That apart, the only other evidence of treatment of the claimant which was accepted by the adjudicator was that he and his family may have been the subject of abuse in the streets and might have had stones thrown at them by local children because they were known to be Ahmadis.
In summarizing her conclusions relating to the claimant's asylum appeal, the adjudicator said at paragraphs 35 and 36 of her determination:
“35. In summary therefore I find that although the appellant's family may well have been subjected to general harassment and verbal abuse in recent years, perhaps because it has become known in the community the appellant preaches, there is no credible evidence that he has in fact suffered from serious incidents of violence which the police have been unwilling to investigate. The appellant and his family remained living in Karachi during the whole of this period. The appellant's family are still living in Karachi and do not appear to be experiencing any serious problems, although I accept that his children may continue to be abused at school. His father lives in Karachi as does his wife's family and there is no evidence that they suffer any particular problems. The appellant has never been subjected to any state investigation as a result of his preaching; he has never been arrested nor detained for any reason at all. He claims to have been a successful business man, even to the extent of being able to restart a business in Karachi with no apparent difficulty and yet he produces no evidence about his business activities. He had no problems at all until the age of 42 and has been able to carry on his faith all of his life without serious hinderance. This evidence must be viewed against the background evidence of serious discrimination against some followers of the Ahmadi faith in their work and daily lives and serious interference in their ability to follow and practise their faith. There is no credible evidence that this has been the position in relation to this appellant. Having regard to the evidence in totality, I have come to the conclusion that the appellant has come to the United Kingdom for reasons other than the need to seek international protection.”
“36. The appellant has therefore not established that he has in fact been persecuted in the past on account of his faith and neither has he established that he would face a serious risk of persecution, in his particular circumstances, if he returns to Pakistan now. I see no reason why the appellant cannot return to Karachi to his wife and children where on his own account it is open to him to continue his business activities and, importantly, in his case, the evidence strongly supports the finding that he will be able to carry on his faith as before, as his family appear to do so currently. Even accepting that he began to preach in 1998, for the reasons I have already given, I do not find that in his case that did result in any serious problems for him. He is an ordinary member of the Ahmadiyya faith; he has not come to the attention of the authorities on account of his faith; has no credible evidence that he has been targeted by religious extremists for that reason and no evidence on which to properly conclude that he would face such problems in the future.”
The adjudicator then turned to consider the issues raised under the claimant's human rights appeal. Having found that there was no evidence to support the claimant's alleged breaches of Articles 2, 3, 6 and 7 of the Convention, she turned in paragraph 40 of her determination, to deal with Articles 9,10 and 11—Article 9 being the relevant one in connection with these proceedings. It is necessary to read the whole of paragraph 40:
“In relation to Articles 9 10 and 11. (Freedom of Thought, Conscience and Religion and Expression and Freedom of Assembly and Association) it is clear from the background evidence that the ability of Ahmadis to exercise their free rights under these Articles are constrained by the law and by societal attitudes towards them and that state action is generally ineffective. In relation to the appellant however, these rights do have to be regarded in the context of the evidence before me, which as I have said, has led to my finding that he has not personally experienced to any serious degree some of the problems which are faced by many Ahmadis in Pakistan. I have referred to the background evidence included in the appellant's bundle and to two further fairly recent reports in late 2000 from Amnesty International concerning the stepping up of campaigns against minorities in the country. The background evidence also supports the conclusion that the government continues to express its opposition to discrimination against religious minorities although, I accept, that this may just be words as opposed to action. I have concluded that in the context of these Articles, that is that they enshrine an individual's right to express his beliefs in public or private and to manifest his beliefs in worship, teaching practice and observance and to share ideas and information concerning his or her opinions and also to have the freedom of peaceful assembly, that returning the appellant to Pakistan where those rights are curtailed, does engage those articles under the Convention in the appellant's case. These articles are qualified articles and I must therefore consider whether or not the UK government's action in returning the appellant would be in breach of those articles by a reference to a three stage test, that is, whether or not the respondent's action is in accordance with the law; whether it pursues a legitimate aim and whether or not it is proportionate in relation to the prospective breach. It is my finding that the respondent's action is in accordance with the law in that he has made his decisions in accordance with immigration...
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