FOURTH SECTION
DECISION
Application no. 70412/11
A.N.N. and others against the United Kingdom
and 6 other applications
The European Court of Human Rights (Fourth Section), sitting on 18 December 2012 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Lawrence Early, Section Registrar,
Having regard to the above applications lodged on 15 November 2011, 7 November 2011, 27 January 2012, 16 March 2012, 21 March 2012 (application nos. 17085/12 and 17143/12), and 16 July 2012,
Having regard to the decision to apply Rule 39 of the Rules of Court in respect of the first, third, fourth, fifth and seventh applications,
Having regard to the decision to grant the applicants anonymity under Rule 47 § 3 of the Rules of Court,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The Ahmadiyya sect was established in 19th century India by its eponymous founder Hadrat Mirza Ghulam Ahmad (1835-1908). The sect has members worldwide. A core belief of the Ahmadi is that their founder is the promised Messiah and was prophesied by Mohammed the prophet. This is a heresy to mainstream Sunni Muslims, who regard the Ahmadi as non‑believers and non-Muslims. In Pakistan, this has led to tensions between Ahmadi and non-Ahmadi and a series of legal restrictions of the freedom of Ahmadi to practice their beliefs (see paragraphs 1-3 of the MN and others determination, cited at paragraph 11 below).
2. The present case concerns seven applications brought by Ahmadis challenging their removal from the United Kingdom to Pakistan. All of the applicants are Pakistani nationals.
3. The first application, A.N.N. and others, no. 70412/11, concerns a family of five Ahmadis. The father of the family claims to have been ill‑treated in the course of his public attempts to preach his faith in Pakistan. The family were represented before the Court by Parker Rhodes Hickmott Solicitors, Rotherham.
4. The second application, N.P., no. 70682/11, concerns an Ahmadi woman who alleges that she was ill-treated by both the Pakistani police and non-state actors, including Khatme-e-Nabuwwat (an anti-Ahmadi organisation), as a result of her conversion to the Ahmadi faith. She was not represented before the Court.
5. The third application, Y.I., no. 6071/12, concerns an Ahmadi shopkeeper who also alleges ill-treatment by the Pakistani police and Khatme-e-Nabuwwat, when he began preaching from his shop. He was represented before the Court by Wimbledon Solicitors, London.
6. The fourth, fifth and sixth applications, A.A. and others, nos. 16668/12, 17085/12 and 17143/12, concern eleven members of a prominent Ahmadi family from Lahore. They allege to have suffered ill‑treatment at the hands of the Pakistani authorities and non-state actors such as Khatme-e-Nabuwwat because of their proselytism. The family was also represented before the Court by Wimbledon Solicitors, London.
7. The seventh application, T.I., no. 43727/12, concerns an Ahmadi man who claims to have suffered ill-treatment as a result of his proselytism and efforts to protect an Ahmadi mosque from non-Ahmadis. He was unrepresented before the Court.
8. In all of the cases the United Kingdom Government (“the Government”) were represented by their Agent, Ms Y. Ahmed of the Foreign and Commonwealth Office.
9. With the exception of the second and sixth applications, on dates between 6 February 2012 and 23 August 2012, the Acting President of Chamber to which the cases had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the United Kingdom Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court that the applicants should not be expelled to Pakistan pending the Court’s decision.
10. Subsequently, the President decided to give notice of the Y.I. and A.A. and others applications to the Government.
11. On 23 October 2012, the Chamber decided to adjourn its examination of the cases pending the promulgation of the determination of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in MN and others (Ahmadis – country conditions – risk) Pakistan CG. That determination was promulgated on 13 November 2012 ([2012] UKUT 00389(IAC)). The headnote to the determination provides as follows:
“1. This country guidance replaces previous guidance in MJ & ZM (Ahmadis – risk) Pakistan CG [2008] UKAIT 00033, and IA & Others (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT 00088. The guidance we give is based in part on the developments in the law including the decisions of the Supreme Court in HJ (Iran) [2010] UKSC 31, RT (Zimbabwe) [2012] UKSC 38 and the CJEU decision in Germany v. Y (C-71/11) & Z (C-99/11). The guidance relates principally to Qadiani Ahmadis; but as the legislation which is the background to the issues raised in these appeals affects Lahori Ahmadis also, they too are included in the country guidance stated below.
2.(i) The background to the risk faced by Ahmadis is legislation that restricts the way in which they are able openly to practise their faith. The legislation not only prohibits preaching and other forms of proselytising but also in practice restricts other elements of manifesting one’s religious beliefs, such as holding open discourse about religion with non-Ahmadis, although not amounting to proselytising. The prohibitions include openly referring to one’s place of worship as a mosque and to one’s religious leader as an Imam. In addition, Ahmadis are not permitted to refer to the call to prayer as azan nor to call themselves Muslims or refer to their faith as Islam. Sanctions include a fine and imprisonment and if blasphemy is found, there is a risk of the death penalty which to date has not been carried out although there is a risk of lengthy incarceration if the penalty is imposed. There is clear evidence that this legislation is used by non-state actors to threaten and harass Ahmadis. This includes the filing of First Information Reports (FIRs) (the first step in any criminal proceedings) which can result in detentions whilst prosecutions are being pursued. Ahmadis are also subject to attacks by non-state actors from sectors of the majority Sunni Muslim population.
(ii) It is, and has long been, possible in general for Ahmadis to practise their faith on a restricted basis either in private or in community with other Ahmadis, without infringing domestic Pakistan law.
3.(i) If an Ahmadi is able to demonstrate that it is of particular importance to his religious identity to practise and manifest his faith openly in Pakistan in defiance of the restrictions in the Pakistan Penal Code (PPC) under sections 298B and 298C, by engaging in behaviour described in paragraph 2(i) above, he or she is likely to be in need of protection, in the light of the serious nature of the sanctions that potentially apply as well as the risk of prosecution under section 295C for blasphemy.
(ii) It is no answer to expect an Ahmadi who fits the description just given to avoid engaging in behaviour described in paragraph 2(i) above (“paragraph 2(i) behaviour”) to avoid a risk of prosecution.
4. The need for protection applies equally to men and women. There is no basis for considering that Ahmadi women as a whole are at a particular or additional risk; the decision that they should not attend mosques in Pakistan was made by the Ahmadi Community following attacks on the mosques in Lahore in 2010. There is no evidence that women in particular were the target of those attacks.
5. In light of the above, the first question the decision-maker must ask is (1) whether the claimant genuinely is an Ahmadi. As with all judicial fact-finding the judge will need to reach conclusions on all the evidence as a whole giving such weight to aspects of that evidence as appropriate in accordance with Article 4 of the Qualification Directive. This is likely to include an enquiry whether the claimant was registered with an Ahmadi community in Pakistan and worshipped and engaged there on a regular basis. Post-arrival activity will also be relevant. Evidence likely to be relevant includes confirmation from the UK Ahmadi headquarters regarding the activities relied on in Pakistan and confirmation from the local community in the UK where the claimant is worshipping.
6. The next step (2) involves an enquiry into the claimant’s intentions or wishes as to his or her faith, if returned to Pakistan. This is relevant because of the need to establish whether it is of particular importance to the religious identity of the Ahmadi concerned to engage in paragraph 2(i) behaviour. The burden is on the claimant to demonstrate that any intention or wish to practise and manifest aspects of the faith openly that are not permitted by the Pakistan Penal Code (PPC) is genuinely held and of particular importance to the claimant to preserve his or her religious identity. The decision maker needs to evaluate all the evidence. Behaviour since arrival in the UK may also be relevant. If the claimant discharges this burden he is likely to be in need of protection.
7. The option of internal relocation, previously considered to be available in Rabwah, is not in general reasonably open to a claimant who genuinely wishes to engage in paragraph 2(i) behaviour, in the light of the nationwide effect in Pakistan of the anti-Ahmadi legislation.
8. Ahmadis who are not able to show that they practised their faith at all in Pakistan or that they did so on anything other than the restricted basis described in paragraph 2(ii) above are in general unlikely to be able to show that their genuine intentions or wishes are to practise and manifest their faith openly on return, as described in paragraph 2(i) above.
9. A sur place claim by an Ahmadi based on post-arrival conversion or revival in belief and practice will require careful evidential analysis. This will probably include consideration of evidence of the head of the claimant’s local United Kingdom Ahmadi Community and from the UK headquarters, the latter particularly in cases where there has been a conversion. Any adverse findings in the claimant’s account as a whole may be relevant to the assessment of likely behaviour on return.
10. Whilst an Ahmadi who has been found to be not reasonably likely to engage or wish to engage in paragraph 2(i) behaviour is, in general, not at real risk on return to Pakistan, judicial fact-finders may in certain cases need to consider whether that person would nevertheless be reasonably likely to be targeted by non-state actors on return for religious persecution by reason of his/her prominent social and/or business profile.”
12. Following the promulgation of MN and others, the Agent informed the Court that the Government undertook to re-examine domestically the applicants’ asylum claims in light of that determination. This undertaking was without prejudice to the ability of the applicants to lodge new applications (and corresponding requests for interim measures under Rule 39 of the Rules of Court), if the domestic re-examination of their cases were unfavourable.
COMPLAINTS
13. Relying inter alia on Article 3 of the Convention, the applicants complained that, if removed to Pakistan, they would be at real risk of ill‑treatment as a result of their Ahmadi faith.
THE LAW
14. Article 37 of the Convention provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
15. In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) the Court must consider whether the circumstances lead it to conclude that “for any other reason....it is no longer justified to continue the examination of [it]”. The Court recalls that it enjoys a wide discretion in identifying grounds capable of being relied upon in a strike out application on this basis; however, it also recalls that such grounds must reside in the particular circumstances of each case (see B.S. and others v. the United Kingdom (dec.), no. 7935/09, 30 November 2010 with further references therein).
16. In the Court’s view, the particular circumstances of these applications are such that it is no longer justified to continue their examination. The applicants’ complaints under the Convention are based on the consequences of their return to Pakistan and the risk of ill-treatment there. The applicants will now benefit from the above-mentioned-undertaking of the Government (see paragraph 12 above). The practical effect of this undertaking is that they will not be returned to Pakistan without a full examination of their claims by the Government of the United Kingdom and, moreover, they will have the opportunity to lodge new applications with the Court (including the possibility of requesting an interim measure under Rule 39 of the Rules of Court) should that need arise. In accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the cases. Accordingly, it is appropriate to lift the interim measures indicated under Rule 39 of the Rules of Court in respect of the first, third, fourth, fifth and seventh applications and strike the cases out of the list.
For these reasons, the Court unanimously
Joins the applications;
Decides to strike the applications out of its list of cases.
Lawrence EarlyIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy