Upper Tribunal (Immigration and asylum chamber), 2016-12-06, PA/00737/2016

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/00737/2016

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE blum

Between

MA

(anonymity direction MADE)

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms C Hulse, Counsel, instructed by Joules Law

For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Mr MA (Appellant) appeals against the decision of Judge of the First-tier Tribunal Dhaliwal, promulgated on 23 August 2016, dismissing his protection and human rights appeal against the Respondent’s decision of 13 January 2016 refusing his protection and human rights claims.

Background

2. The Appellant is a national of Pakistan, date of birth 18 July 1985. He entered the United Kingdom pursuant to a visitor entry clearance granted on 16 March 2015 and claimed asylum on 14 September 2015. The Appellant is an Ahmadi and he claimed to face a real risk of persecution in Pakistan on account of his religion.

3. The following is a summary of the Appellant’s account. He hailed from a prominent Ahmadi family. He had an altercation with a mullah involving the Appellant’s motorcycle and the mullah’s stall. The Appellant accidentally made physical contact with the mullah, who was the son of an influential man. The Appellant was recognised because his father was a doctor and the Mullah said he would kill every Ahmadi. The Appellant maintains that, together with 10 to 12 other men, the mullah attacked his uncle’s shop that evening, and the Appellant’s house was attacked some 3 days later. A threat was made against the Appellant’s father and the father fled to the UK where he was eventually granted asylum. The Appellant went to Sweden on 27 August 2010 to study, but also because he was concerned for his safety. He did not claim asylum because he wanted to return to Pakistan as he believed his troubles would be forgotten. The Respondent noted that the Appellant also went to Norway and Germany. The Appellant returned to Pakistan in 2014 and got married before returning to Sweden. He left Sweden in July 2015 because he lost his job and returned to Pakistan. The Appellant claims that on 7 August 2015 he was outside a mosque when a man shouted his name and gathered others together. The Appellant fled and came to the UK. Since being in the United Kingdom the Appellant joined the Ahmadiyya Muslim Association and has been an active member.

4. The Respondent accepted that the Appellant was Ahmadi. The Respondent did not however find that the Appellant held a well-founded fear of persecution. The Respondent noted that the Appellant had returned to Pakistan over 3 times since he left in 2010, and that he had not claimed asylum in 3 different countries in which he had resided. The Appellant had never openly preached his faith in Pakistan and the Respondent was not satisfied that the Appellant genuinely intend or wished to manifest his faith openly in Pakistan. The Respondent was not satisfied that preaching was of particular significance to the Appellant’s religious identity.

The First-tier Tribunal hearing

5. The First-tier Tribunal heard evidence from the Appellant and from two witnesses, his father and the vice president of the Ahmadiyya Jamaat of West Birmingham. The judge set out the Appellant’s claim, noting his various memberships of Ahmadi groups over the years, and set out the basis for the Respondents decision.

6. At [25] the judge indicated that the real issue she needed to consider was whether there was a risk to the Appellant based on how he would conduct himself on return to Pakistan, and if so, whether relocation was a realistic option, having regard to MN and others (Ahmadis – country conditions – risk) Pakistan CG[2012] UKUT 00389 (IAC).

7. At [27] the judge noted that the Appellant preached to his friends whilst at university in Pakistan, never to the general public. In his asylum interview the Appellant had stated that he had not openly preached his faith in Pakistan. The judge noted the Appellant’s evidence that he was able to practice his faith in Pakistan by preaching discreetly to a trusted select few.

8. The judge noted that, whilst in Sweden, the Appellant was actively involved in the Ahmadi community and preached by distributing leaflets. The judge noted that, whilst in Germany, the Appellant took a friend with him to an Ahmadi congregation. The judge noted the Appellant’s involvement in the Ahmadiyya Muslim Association in the UK.

9. At [28] the judge accepted, based on her findings of fact, that the Appellant viewed his faith “… as an important aspect of his life and that he had dedicated the majority of his life to his faith.” The judge noted however that whilst in Pakistan the Appellant had not engaged in any behaviour that was likely to bring him to the adverse attention of the authorities.

10. The judge attached significance to the Appellant’s activities in the Sweden, Norway and Germany. At [30] the judge said there was no evidence of any involvement by the Appellant with the Ahmadi community in Norway at all. The judge was not satisfied that the handing out of leaflets in Sweden and his visit to a congregation in Germany, when he invited a friend, indicated that the Appellant felt the need and desire to engage in preaching to be able to identify himself as an Ahmadi. The Appellant’s preaching activities was said to be limited throughout the period of 5 years that he lived in these safe countries. The judge concluded that preaching was not an integral and important part of the Appellant’s identity.

11. The judge questioned (at [31]) the motivation behind the Appellant’s more public activities in the UK. The judge concluded that the Appellant’s activities in the UK were an attempt to bolster his asylum claim. The judge supported this conclusion by reference to the fact that the Appellant took legal advice following his entry into the United Kingdom and that shortly after taking legal advice he made contact with his local Ahmadi community. The judge stated that the only difference between the other safe countries and the UK was that the Appellant’s parents resided in the UK. The judge was of the view that, if the Appellant’s preaching activities had been an important element of his religious identity then he would have conducted himself in a similar way in Sweden, Norway and Germany [32]. The judge concluded by finding that preaching was not an essential and important part of the Appellant’s identity as an Ahmadi, and that the Appellant would be able to practice his faith in Pakistan without feeling the wish to practice and manifest aspects of his faith openly.

12. At [37] the judge concluded that the incidence of September 2009 and the recent incident at the mosque following the Appellant’s return to Pakistan did not support his claim in any material way. The judge stated, “It may well be that in 2009 that an incident began as a result of him making accidental contact with a male and he was then called names based on his religion. It is unfortunate that there is abuse in Pakistan directed towards those of the Ahmadi faith. Whilst this is unacceptable, it is harassment and threats which can be dealt with internally in Pakistan through the police.” Given her finding that the Appellant did not genuinely wish to engage in conduct that would breach Pakistan laws, the judge found there was no reason why the Appellant could not relocate elsewhere in Pakistan and continue practicing his faith.

The grounds of appeal and the grant of permission

13. The original grounds, which were not drafted with great precision, contended that the judge misapplied MN. Her finding that it was not particularly important to the Appellant’s religious identity to practice and manifest his faith openly in Pakistan was said to be inconsistent with her acceptance that the Appellant viewed his faith as an important aspect of his life and dedicated the majority of his life to it. It was submitted that any form of preaching, even if discrete, was prohibited by the Pakistan penal code and the Appellant therefore fell within the ambit of MN. This particular ground was not pursued at the error of law hearing.

14. The grounds further contended that the judge failed to apply the principles enunciated in HJ (Iran) v Secretary of State for the Home Department[2007] EWCA Civ 1024 as the Appellant was unable to recite the Koran and say the call to prayer, or call his mosque a mosque. The grounds contended that the judge failed to consider the decision in his father’s asylum appeal. It was submitted that the Appellant’s legal representatives at the time of his appeal hearing failed to include his father’s asylum appeal decision (dated 8 October 2014) in the appeal bundle. This was said to have amounted to poor legal practice and negligence. To that end a complaint had been lodged against the previous...