Ullah v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date16 Dec 2002
Neutral Citation[2002] EWCA Civ 1856,[2003] UKHRR 302
Docket NumberCase Nos: C/2002/1599 and C/2002/0911

[2002] EWCA Civ 1856

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Hon Mr Justice Harrison And

IMMIGRATION APPEAL TRIBUNAL

Before

Lord Phillips of Worth Matravers, Mr

Lord Justice Kay and

Lord Justice Dyson

Case Nos: C/2002/1599 and C/2002/0911

Ahsan Ullah
Appellant
and
Special Adjudicator
Respondent
Between
Thi Lien Do
Appellant
and
Secretary of State for the Home Department
Respondent

Nicholas Blake, QC and Martin Soorjoo (instructed by Thompson & Co for the Appellant Ullah)

Monica Carss-Frisk, QC and Lisa Giovannetti (instructed by The Treasury Solicitor for the Respondent)

Manjit S. Gill, QC and Christa Fielden (instructed by Sheikh & Co for the Appellant Do)

Monica Carss-Frisk, QC and Miss Kassie Smith (instructed by The Treasury Solicitor for the Respondent)

Lord Phillips, MR :

This is the judgment of the Court.

Introduction

1

There are before the court two conjoined appeals. Common to each is the following question. Does the Human Rights Act 1998 (' HRA'), together with Article 9 of the European Convention on Human Rights ('the Convention'), require this country to give a refuge to immigrants who are prevented from freely practising, and in particular from preaching or teaching, their religion in their own countries? This question reflects a wider issue. To what extent does the HRA inhibit the United Kingdom from expelling asylum seekers who fall short of demonstrating a well-founded fear of persecution?

2

Article 9 of the Convention provides:

"Freedom of Thought, Conscience and Religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

The Facts

Mr Ullah's Appeal

3

This is an appeal from a judgment of Harrison J. dated 16 July 2002 in which he refused Mr Ullah's application to quash the decision of an immigration adjudicator, promulgated on 17 September 2001. The adjudicator dismissed Mr Ullah's appeal against the Secretary of State's refusal to grant him asylum and rejected a claim that it would be contrary to the HRA to remove him to his home country, Pakistan. Permission to seek judicial review was granted by Mr Jack Beatson QC, sitting as a Deputy High Court Judge on 12 April 2002. Permission was, however, restricted to a single point – Mr Ullah's reliance on Article 9 of the Convention. Harrison J., in his turn, gave permission to appeal 'on the basis of the importance of some of the points involved in the case'.

4

Mr Ullah is a citizen of Pakistan. He is an active member of the Ahmadhiya faith. In particular, on 28 December 1998 he was appointed 'secretary of teaching' in order to spread the beliefs of the Ahmadhiya faith' and thereafter carried on what he has described as 'preaching duties' and 'preaching activities' in Pakistan.

5

On 15 January Mr Ullah arrived at Heathrow on a plane from Karachi. He entered the country on false documents that he had purchased in Karachi. He applied for asylum two days later. He claimed to have a well-founded fear of persecution as a result of persecution that he had suffered as a result of practising his faith. In particular, he alleged that he had been harassed, intimidated and, on two occasions attacked by members of a religious terrorist group called Khatme Nabuwait, in whose activities the local police were complicit. On one occasion he said that he had been beaten and left for dead. On the other occasion he said that his house was burnt down. Faced with further death threats he fled to England.

6

The Secretary of State found some aspects of Mr Ullah's account to be implausible. He did not accept that Mr Ullah had demonstrated that he had a well-founded fear of persecution under the terms of the 1951 United Nations Convention relating to the Status of Refugees ('the Refugee Convention'). He dismissed the claim for asylum. He further concluded that Mr Ullah had not demonstrated that he qualified for permission to remain in this country by reason of any of the Articles of the Convention.

7

Mr Ullah appealed against the Home Secretary's decision. With the assistance of Thompson & Co, solicitors, he filed detailed grounds of appeal. Most of these were in terms that applied to the position of all Ahmadis in Pakistan. They alleged that Ahmadis were subject to persistent and organised persecution and that the Government of Pakistan failed to provide protection to Ahmadis against religious extremists.

8

We set out in Annex A to our judgment the relevant findings of the adjudicator, Mrs Nichols, in relation to Mr Ullah's asylum application. We set out in Annex B her findings in relation to Mr Ullah's claim under the HRA. In summary, the adjudicator did not find credible much of Mr Ullah's evidence and concluded that he did not have a well-founded fear of persecution. So far as his claim under the Convention is concerned, the adjudicator found that Articles 9, 10 and 11 of the Convention were engaged. She found that Ahmadis were a religious minority and that if Mr Ullah returned to Pakistan he would not enjoy the same rights as the majority. He would nonetheless be able to practice his religion. The Articles invoked gave qualified rights. In refusing to permit Mr Ullah to remain in this country the Secretary of State was acting lawfully in pursuance of the legitimate aim of immigration control. The act of removing Mr Ullah to Pakistan was proportionate to any difficulties he might face on his return.

9

On the application to Harrison J. for judicial review, counsel for Mr Ullah submitted that the adjudicator had been wrong to find that, by reason of Article 9(2) of the Convention, immigration control was a legitimate aim which could justify interference with the Article 9 rights. Counsel for the Secretary of State challenged this assertion, but argued that the adjudicator had erred in finding that Article 9 was engaged at all. She submitted that, where Article 9 was invoked as a bar to removal from the jurisdiction, it could only be engaged if the alleged violation was 'flagrant'. This it was not.

10

Harrison J. accepted the submissions made on behalf of the Secretary of State. He ruled that the alleged violation of Article 9 was not flagrant. He further ruled that immigration control fell within the legitimate aims that were recognised by Article 9(2).

Miss Do's Appeal

11

This is an appeal from the final determination of the Immigration Appeal Tribunal ('the Tribunal') dated 7 January 2002. The Tribunal had upheld the decision of an immigration adjudicator, promulgated on 5 September 2001. The adjudicator had upheld the refusal of the Secretary of State to grant Miss Do asylum. She also rejected a claim that it would be contrary to Articles 3 and 5 of the Convention to remove Miss Do to her home country, Vietnam. The Tribunal considered also whether Miss Do had a case under Article 9, and concluded that she did not. Permission to appeal to this Court was granted by Tuckey LJ, who remarked 'the Article 9 point may be of some importance'.

12

Miss Do is a citizen of Vietnam, where she was born in 1979. On 20 November 2000 she arrived in the United Kingdom clandestinely and without travel documents. On 13 December 2000 she claimed asylum. The basis of her claim was that she had a well-founded fear of persecution in Vietnam as a result of her religious beliefs as a Catholic. The Secretary of State rejected her claim to asylum. He remarked that when questioned she had showed ignorance of the basic beliefs of the Catholic Church. She had never been arrested, detained or charged by the police in Vietnam. The Secretary of State considered whether Miss Do qualified for protection under any of the Articles of the Convention and decided that she did not.

13

Miss Do supported her appeal to the adjudicator with an Appeal Statement, prepared with the assistance of Sheikh & Co, Solicitors. This included the following statements:

"It is correct that recently the Vietnamese government has eased its control over church activities. There might be a certain freedom of religion in Vietnam in comparison with the past, but this is only the case for big cities. In the villages and in the countryside, Catholic Christians are still harassed by the Vietnamese authorities. For example in my village the Church never got permission from the local authorities to be refurbished. The local authorities also confiscated the building where we were teaching catechism. When I was teaching Catholicism I was harassed by the authorities and suffered discrimination. The police came to my house many times and took me to the police station. In June 2001 I was taken twice to the police station. The police told me to stop teaching Catholicism or I would be arrested. I carried on teaching as my faith was stronger and because I thought that they could not find out what I was doing. I did not feel safe anywhere in Vietnam and that is why I decided to leave the country. The communist government wants children to be raised and taught according to Communist beliefs. Teaching Catholicism is believed to be acting against the government. If I were to be...

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