WA (Pakistan) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Lord Justice Peter Jackson,Lord Justice Singh |
| Judgment Date | 06 March 2019 |
| Neutral Citation | [2019] EWCA Civ 302 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/3749 |
| Date | 06 March 2019 |
[2019] EWCA Civ 302
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Hill QC
Appeal No. AA/08054/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Lord Justice Peter Jackson
and
Lord Justice Singh
Case No: C5/2015/3749
and
Raza Husain QC and Eric Fripp (instructed by Luqmani Thompson & Partners) for the Appellant
Isabel McArdle (instructed by The Government Legal Department) for the Respondent
Michael Fordham QC, Shane Sibbel and Gayatri Sarathy (instructed by Baker McKenzie LLP) for the Intervener
Hearing dates: 30 and 31 January 2019
Approved Judgment
Introduction
The central issue in this case concerns the test for refugee status. The Appellant is an Ahmadi of Pakistani nationality. He has practised his religion while living in the United Kingdom. His asylum claim was rejected by the First-tier Tribunal (“F-tT”). He claimed that he wished to preach openly in Pakistan, which would make him liable to persecution. He was disbelieved in that claim, the F-tT concluding that he would not do so. The most important plank of his appeal is the submission that the F-tT failed to apply the law as laid down by the Supreme Court in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596. The Tribunal failed to ask “why” the Appellant would avoid activity giving rise to the risk of persecution (the “why” question), an obligation laid on it in the judgment in HJ (Iran). Although it failed in that way, the Appellant further submits that, paradoxically, the findings of the Tribunal in fact demonstrate that he would refrain from such expression of his Ahmadi faith through fear of persecution. Therefore, even if he would avoid persecution in that way, he was still entitled to asylum, since the law cannot “expect”, meaning require, such restraint.
The Appellant further submits that the relevant country guidance decision, MN and others (Ahmadis – country conditions – risk) Pakistan CG [2012] UKUT 00389 (IAC) was wrong, and misleading as to the approach to the “why” question. It does not accurately reflect the decision in HJ (Iran).
The Appellant's submissions were supported, orally and in writing, by the Intervener, the United Nations High Commissioner for Refugees.
The Respondent argues, in summary, as follows. The Appellant bore the burden of proof on his asylum claim, and the Respondent was entitled to meet the case advanced, which he did. The Appellant never claimed that he would behave in such a way as to avoid persecution: on the contrary, he expressly claimed that he would not do that, rather he would preach and proselytise. He was disbelieved. The question “why” he would repress or limit the expression of his faith in Pakistan never arose. The Appellant is not entitled to succeed on appeal by saying, in effect, “my case did not succeed in the first way, now I will try another way”. Any duty on the Tribunal to inquire, in justice, into the basis of an asylum claim cannot stretch so far as to require exploration of an alternative claim contrary to the explicit factual case of an appellant.
The Respondent also argues that this basis of appeal was formulated or (re-formulated) far too late. The Appellant has sought leave to rely on “distilled”, in fact amended, grounds. That should not be permitted.
The Respondent submits that, while the guidance in MN could be clearer, particularly in the headnote, the decision does in fact conform with the law as expounded in HJ (Iran). The “why” test only arises in narrower circumstances than those advanced by the Appellant, and the case is a sufficient guide to its application.
The Facts
The Appellant is an Ahmadi from Pakistan, born on 3 May 1994. He came to the United Kingdom as a boy of 14, with his father, to attend the Ahmadiya Convention in London in 2008. On returning to Pakistan, the Appellant's father left him with a family friend in the UK. Accompanied by that friend, the Appellant claimed asylum in October 2008. That application was refused. However, since he was a child, he was granted discretionary leave to remain which expired on 2 October 2011.
On 15 September 2011, the Appellant made an application for further leave to remain. That and a subsequent application were both refused. On 25 September 2014, the Appellant was issued with a Decision to Remove. His name, nationality and date of birth were accepted. However, under the heading of religion, the Respondent did not accept that the Appellant was of the Ahmadi faith. Part of the refusal letter reads as follows:
“It is not accepted that you are of the Ahmadi faith. I have taken into account that your passport indicates this as your faith, and that at AIR Q36 you indicate all your family are Orthodox Ahmadi. You have also shown some knowledge of the faith at AIR Q83. However, other discrepancies in your evidence undermine your links with the Ahmadi faith.
It is not accepted that you have been propagating the Ahmadi faith (you have occasionally called it preaching) because you have been inconsistent over to whom you would propagate. You claim to have propagated to two of your friends, because they are “fair minded boys who liked to listen and reason with our belief” (AIR 84 and 85). However, you later claim to have propagated to “those students and friends who I knew were understanding persons and were not causing opposition. I would not propagate our beliefs to those who were our enemies because that would cause problems”. Propagating to those who were understanding persons is quite distinct to having only told two friends, and this undermines your claim to have preached at all. Additionally, you indicate an understanding that propagating to “our enemies” might lead to adverse or unwanted consequences (AIR Q89 and 111). This level of understanding indicates an awareness that propagating would be a dangerous activity which you would understandably fear. Therefore it is concluded that you did not engage in it. Bearing in mind the risk associated with propagating the Ahmadi religion, it is highly unlikely you would have done so, even “jokingly” (AIR Q122). Further, you claim to have been propagating since some time around the age of 8 (AIR Q91). This is considered to be an attempt to exaggerate any claim to have propagated in Pakistan. It is implausible that a child of approximately 8 years old would have the necessary understanding of the subject matter.”
The Appellant's appeal was dismissed in the F-tT by Judge Aujla, in a decision and reasons promulgated on 12 January 2015.
The Appellant had relied on a witness statement of 15 December 2014. In the course of the statement he claimed to have been an active Ahmadi as a child whilst in Pakistan and to have been physically ill-treated as a result. He also claimed that a First Information Report (or “FIR”), the initiating step in criminal proceedings, had been lodged against him in 2008 (when he was 14).
The statement made it clear that the practice of Ahmadi faith in Pakistan was restricted in the following terms:
“18. … Ahmadis in Pakistan can go their mosques, places of worship but the Constitution prohibits them declaring their place of worship as mosque which is a Muslim gesture. Ahmadis in Pakistan cannot call Azan before offering a prayer. My problems with the Mullahs aggravated when I started calling for prayer in the mosque.”
And his statement concluded as follows:
“28. It is not possible for me to relocate to some other part of the country. I am a staunch religious man and my religious activities will attract the Mullahs of the KN in any other part of the country as it did in my native town. I cannot live without my faith. I cannot sever this aspect of my life from me. It is not possible for me to carry out these activities in Pakistan as I have done in the UK, without the fear of the draconian blasphemy laws.
29. My family in Pakistan has left the village and are staying at Rabwah at the moment. They moved to Rabwah about two years ago. My three brothers and one sister have moved to Germany. My sister is married to a German national whereas my brothers have claimed asylum. Two of my brothers have been granted refugee status in Germany. The asylum claim of one of my brother is pending.
30. In the UK, I am leading the life according to my faith. I am participating in the activities and religious functions as is required from me as an Ahmadi. I can openly call for prayer from which I was stopped in Pakistan. In Pakistan, I was leading a dual life. I could not preach or propagate which I believed. I have a fear of my life in Pakistan. I request the Secretary of State of grant me International Protection.”
The Appellant amplified his case in oral evidence before the F-tT. He said his interest in religion had “gone up since the last hearing of his appeal in 2012. He could not live without his religion”. He performed security duties at the mosque but held no official position. He then said, as the F-tT recorded:
“He was engaged in preaching putting his faith. All Ahmadis in Pakistan were afraid as they were not allowed to call themselves Muslim. His family had now moved to Rabwah. If he went back to Pakistan he would preach his faith. He would carry on preaching even if it caused risk to his life.”
In the submissions made on the Appellant's behalf to the F-tT it was emphasised that if he went back to Pakistan:
“…he would preach his faith. He would preach in public, although it would get him into trouble. His main role in the UK had been to preach” (paragraph 34).
The judge set out his approach as follows:
“37. There are basically...
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