FOURTH SECTION
Applications nos. 16668/12 and 17085/12
Amtul AZIZ AND OTHERS against the United Kingdom
and Azhar AHMAD AND OTHERS against the United Kingdom
both lodged on 16 March 2012.
STATEMENT OF FACTS
THE FACTS
A. The circumstances of the case
The first applicant, Ms Amtul Aziz, was born in 1960. The second and third applicants, Mr Abdul Rauf and Ms Tayyaba Akhtar, are the father and mother of the first and fourth applicants, born in 1936 and 1938 respectively. The fourth applicant, Mr Azhar Ahmad, is the brother of the first applicant, born in 1970. The fifth, sixth, seventh and eighth applicants are his wife and children, respectively. All of the applicants are nationals of Pakistan. All of the applicants live in London and are represented before the Court by Wimbledon Solicitors.
The facts of the case, as submitted by the applicants, can be summarised as follows.
The first applicant entered the United Kingdom on 27 December 2007 using a visit visa. She claimed asylum on 20 March 2008 on the grounds that she supervised several units of the ladies wing of the Ahmadiyya community, which involved organising examinations, preaching and trying to convert non-Ahmadis. Her activities had brought her to the adverse attention of the mullahs of the Khatme Nabuwaat (KN), an anti-Ahmadiyya religious organisation. She claims that in May 2007, she assisted her elder brother to convert a family. When the mullahs became aware of the conversion, they confronted the applicant’s brother and threatened to kill him. Her brother fled Pakistan for the United Kingdom and after his departure, the mullahs began to harass the applicant. In October 2007, she was insulted and threatened by a retired general to whose wife she had given some information on the Ahmadi faith. She felt that she would have no protection from this general so moved to live with a friend in a different town. However, there she continued her preaching, and the local mullahs threatened to report her to the police. She decided she must leave Pakistan and went into hiding until arrangements could be made for her departure.
The first applicant’s asylum claim was refused on 31 July 2008. The Secretary of State accepted that the applicant was Ahmadi and that much of her family’s property had been destroyed during anti-Ahmadi riots in 1953. However, it was not accepted that the applicant’s family was high profile as she claimed or that they had been particularly targeted in any way. She could have relocated to a different part of Pakistan rather than coming to the United Kingdom to avoid those with whom she had had problems in the past. It was not accepted that the acts complained of by the applicant were of a degree of severity to amount to persecution. She had never been targeted by the authorities. Her proselytising appeared to have been discreet and private and, although it had resulted in threats from mullahs, these threats had never been carried out. The Secretary of State also found that the fact that the applicant had not left Pakistan as soon as she had obtained a United Kingdom visa; had not sought asylum immediately upon entry; and had stated that she had originally intended to return to Pakistan but had changed her mind, all indicated that she had not fled Pakistan with a genuine fear for her life.
Her appeal against the refusal of asylum was heard by the Asylum and Immigration Tribunal on 18 November 2008. The Immigration Judge accepted that the applicant was an Ahmadi and that her family could trace their faith back several generations and were, within the Ahmadiyya community of the Lahore area, well-known and respected. He took note of the findings made at the appeal in respect of the applicant’s parents and two brothers (the elder of whom was by then deceased), namely that they did not face a real risk of persecution in Lahore and could in any event relocate within Pakistan. The applicant had been proselytising since she had been at school, which represented a considerable period of time, during which she had never been arrested or convicted or subject to physical harm. Her preaching was found to have been done either to other Ahmadis or to those sympathetic to the faith, and discreetly or in private. The height of her difficulties had been the incident which, she claimed, had caused her elder brother to flee. However, it had been found by another Immigration Judge that her elder brother had come to the United Kingdom for reasons other than a genuine fear for his life. The incident involving the general was found not to be entirely credible, since if he had wanted to attack her he would have done so at the time, instead of just threatening her. In reality, it was found that the applicant had suffered very little difficulty in Pakistan as a result of her faith or the preaching of that faith.
An application for reconsideration of the Tribunal decision was dismissed by a Senior Immigration Judge on 18 December 2008, on the basis that the Immigration Judge had given cogent reasons, fully based on the evidence, for finding that the applicant was not at risk upon return.
The second applicant entered the United Kingdom on 6 October 2007. He claimed asylum, with the third applicant as his dependant, on 5 March 2008 and this was refused on 29 April 2004. The basis of his claim was that he was responsible for security of the Ahmadi community in Lahore and also for the largest Ahmadi mosque. He was also finance secretary of the Ahmadiyya association. These positions gave him a high profile in the eyes of the KN and they attacked him many times, by pushing and threatening him and throwing stones and bricks at his house. He first felt true fear for his safety in September 2007 after preaching to a man whose family found out and informed the KN. The KN organised a march past his house, throwing stones and calling for his death. He tried to report this to the police but they refused to accept the complaint, as it would create trouble for them with the mullahs. The applicant decided to leave Pakistan for a spell in the United Kingdom. After arriving in the United Kingdom he heard from his son, the fourth applicant, about an attack on him and the chaotic situation in the country following the assassination of Benazir Bhutto and decided that it was not safe to return.
The second applicant’s appeal against the refusal of asylum was heard, together with those of his two sons and their dependants, by the Asylum and Immigration Tribunal on 14 July 2008. The Immigration Judge took into account the most recent country guidance case on Ahmadis in Pakistan, MJ and ZM (Ahmadis - Risk) Pakistan v. Secretary of State for the Home Department, CG [2008] UKAIT 00033, which had found that there was sparse evidence of a risk of treatment amounting to persecution. He accepted that the second applicant occupied the positions in the Ahmadiyya community that he claimed and that he had faced harassment over the years. He also accepted that the incident in September 2007 with the KN march had occurred. However, it was not accepted that the KN intended to harm the applicant. He had lived and conducted his business in the same area for his 72 years without coming to any serious harm and had the KN intended to kill or harm him, they had had ample opportunity to do so. The judge found that the intention of the KN had simply been to prevent the applicant from propagating his religion, and that this had been achieved. If he were now to return to Pakistan, the KN would have no ongoing interest in him. Even if he was at risk from the local mullahs, he could relocate to a different part of the country. There were Ahmadis present in most towns and cities. The applicant had left Pakistan with the intention of returning and there was nothing to indicate that he now faced a greater risk of harm than when he left. There was no reasonable degree of likelihood that the applicant was at serious risk of harm if he continued to exercise his faith discreetly as he had done before and did not openly attempt to convert non-Muslims.
The second applicant made further representations on 27 April 2009, which were rejected as not amounting to a fresh asylum claim on 1 May 2009. The applicant had submitted documents without any translation or explanation as to how he had come by them. As such, no weight could be attached.
The first and second applicants made further representations on 15 October 2009, claiming that the Immigration Judge had not attached enough weight to the family’s prominence and the ensuing risk; that the second applicant’s brother had joined the KN as a result of a family feud and the family would therefore be specifically targeted by the KN; and that the situation in general for Ahmadis in Pakistan was worse now than when their appeals had been considered. These representations were rejected as not amounting to a fresh asylum claim on 17 February 2010. The Secretary of State noted that it had been accepted that the applicants’ family were well-known in their local area but found that this would not create a real risk for them upon return. Documents submitted by the applicants relating to the alleged land dispute with their relative were copies and could not be relied upon, and were also dated prior to their appeal hearings and therefore could have been submitted previously. It was not considered that this relative would be in a better position than any other member of KN to locate them if they returned to Pakistan. It was not accepted that the background evidence demonstrated any increase of violence towards Ahmadis on the part of KN, or a generally worse situation for Ahmadis in Pakistan than that which had been considered by the Tribunal.
The fourth applicant entered the United Kingdom on 26 June 2007 with his wife and daughter, using a valid visit visa. His younger two children were subsequently born in the United Kingdom, in 2009 and 2010 respectively. The fourth applicant claimed asylum, with his wife and daughter as dependants on his claim, on 5 March 2008. The basis of his claim was that he was an active member of the Ahmadiyya community in Lahore and had occupied various positions. He claimed that he was attacked on numerous occasions by KN thugs. He applied for a visit visa for the United Kingdom but remained in Pakistan as he hoped things would get better. The most recent attack on him occurred in the street on 27 December 2007, the day of Benazir Bhutto’s assassination, and his knee was seriously injured as a result. He went into hiding with an uncle before leaving the country. He claims that after he left, another uncle, with whom he had shared a business, took over the entire business. He was expelled from the Ahmadiyya association as a result and now acts as an informer to the KN against the Ahmadis. This was refused on 15 May 2008. The fourth applicant’s appeal against the refusal of asylum was heard, together with those of his father and elder brother and their respective dependants, on 14 July 2008.
The Immigration Judge found that the fourth applicant was an active member of the Ahmadiyya community who had sought to propagate his faith, covertly. It was accepted that he had suffered abuse from KN and had been attacked on 27 December 2007 and his knee injured. However, this had been an unusual incident perpetrated at a time of general turmoil in the country and it was not accepted that there had been any intention to kill him. The fact that the fourth applicant had left Pakistan after this attack but had intended to return indicated that he did not genuinely fear serious harm. The judge dismissed his appeal for the same reasons as that of his father, the second applicant, as set out above.
The first, second and fourth applicants, together with the niece and nephew of the first and second applicants (the children of their deceased elder brother), made further representations on 8 July 2010. These were refused on 18 August 2010. The applicants’ reference to events in Pakistan in May 2010, namely the bombing of an Ahmadi mosque in which many had been killed and injured, was noted, as was their claim that the Pakistani authorities’ apparent condoning of the attack indicated that the situation for Ahmadis in Pakistan was worse than ever. However, the Secretary of State found that the attack had targeted the Ahmaddiya community in the broad sense and had not specifically targeted any individual Ahmadis. There was no reason to believe that the applicants would face any greater risk than any other Ahmadis in Pakistan and, since there was a population of up to four million Ahmadis, it was not accepted that they all faced a general risk of persecution. The single event did not create a possibility that the applicants’ asylum appeals would now be differently considered by an Immigration Judge. An application for judicial review of the failure to treat their representations as a fresh asylum claim was refused by the High Court on 3 November 2010. The Secretary of State had been correct to find that there was no realistic prospect that the Tribunal would find that the applicants would be at risk, on an individual basis, as a result of the attack in May 2010.
The applicants, again together with the first and second applicants’ niece and nephew, made further representations on 9 August 2011, which were rejected on 23 September 2011. They claimed that false charges had been lodged against them with the police in Pakistan and that they would not be offered any protection against these charges. The Secretary of State found that there was no evidence to support this claim.
The applicants, again together with the first and second applicants’ niece and nephew, made further representations on 22 December 2011. They submitted an expert report regarding the treatment of Ahmadis in Pakistan, which considered in turn the situations of each member of the applicants’ family. These representations were refused in respect of the first applicant on 4 January 2012 and the second, third and fourth applicants on 5 January 2012. The Secretary of State considered that the expert report provided only an overview of the applicants’ situation and did not show how they would be directly affected by the situation for Ahmadis in Pakistan. The applicants had not demonstrated why they faced a greater risk than that faced by the four million Ahmadis living in Pakistan.
The applicants sought judicial review of the decision not to treat their further representations as a fresh claim, which was refused by the High Court on 9 February 2012. It was found that the Secretary of State had been justified in concluding that the evidence, including the expert report, was not sufficient to demonstrate a change in the situation of Ahmadis in Pakistan as it had been when the Tribunal considered the applicants’ appeals. There may be forthcoming country guidance at some stage on the position of Ahmadis in Pakistan but this did not amount to grounds for a fresh claim. The fact that the applicants were from a well-established Ahmadi family had been properly taken into account by the Tribunal.
B. Relevant domestic law
1. MJ and ZM (Ahmadis - Risk) Pakistan v. Secretary of State for the Home Department, CG [2008] UKAIT 00033
The most recent Country Guidance case on Ahmadis in Pakistan, which was promulgated in 2008, held:
“In Pakistan as a whole, whilst it is clear that from time to time local pressure is exerted to restrict the building of new Ahmadi mosques, schools and cemeteries, and that a very small number of Ahmadis are arrested and charged with blasphemy or behaviour offensive to Muslims, the number of problems recorded is small and has declined since the Musharraf Government took power. Set against the number of Ahmadis in Pakistan as a whole, they are very low indeed. The courts do grant bail and all appeals against blasphemy convictions in recent years have succeeded.
There is very sparse evidence indeed of harm to Ahmadis from non-state agents (though rather more anecdotal evidence of difficulties for Christians). The general risk today on return to Pakistan for Ahmadis who propagate the Ahmadi faith falls well below the level necessary to show a real risk of persecution, serious harm or ill-treatment and thus to engage any form of international protection.
Where, exceptionally, the facts of a particular appellant’s case indicate that such an appellant cannot be returned safely to their home area, the existence of an internal relocation option, either to Rabwah or elsewhere in Pakistan, is a question of fact in each such appeal.”
2. MT (Ahmadi – HJ (Iran)) v. Secretary of State for the Home Department
In this reported determination of the Upper Tribunal (Asylum and Immigration Chamber), the Tribunal held that, where it was found that an Ahmadi would be “discreet” upon return to Pakistan, the reasons for such discretion would need to be considered in the light of HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31, a case which dealt with the issue of discretion in the context of accepted homosexuals being returned to countries in which homophobia was rife. As regards Ahmadis in Pakistan, the Tribunal found that, where a person if returned would act discreetly in their religious practice but such discretion would be mainly motivated by a fear of persecution, then the person in question had a well-founded fear of persecution and should not be returned to Pakistan.
QUESTIONS TO THE PARTIES
1. Is the finding in (MJ and ZM (Ahmadis) Pakistan CG [2008] UKAIT 00033) that there is little evidence of a serious risk of harm to Ahmadis in Pakistan still applicable in the light of what, from the background country evidence, appears to be a worsening situation for Ahmadis?
2. Should the applicants’ case be considered with the benefit of the forthcoming country guidance case on the situation of Ahmadis in Pakistan?
3. In all the circumstances of the applicants’ case, would their removal to Pakistan expose them to a real risk of treatment contrary to Article 3 of the Convention?
Full & Egal Universal Law Academy