Tribunal decisions

The decision

Heard at Field House

On 23 September 2004

KK (Ahmadi – Unexceptional – Risk on Return) Pakistan [2005] UKIAT 00033

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

.......04.02.05..........................................

Before:

Mr J Freeman (Vice President)
HH Judge Huskinson (Vice President)
Mrs G Greenwood

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

APPELLANT

and

RESPONDENT

Representation

For the Appellant: Ms Pal (Home Office Presenting Officer)
For the Respondent: Mr Ian Lewis (Counsel – instructed by Thompson & Co)

DETERMINATION AND REASONS

1. The Secretary of State appeals to the Tribunal, with permission, from the determination of Professor Rebecca M M Wallace, Adjudicator, promulgated on 6 February 2004 whereby she allowed on asylum grounds and human rights grounds the appeal by the Respondent (hereafter called “the Claimant”) against the Secretary of State's decision to refuse asylum to the Claimant and to refuse him leave to enter the United Kingdom and to propose to give directions for the removal of the Claimant to Pakistan.

2. This case was listed with a view to it being a country guidance case and it may be treated as such. It is however important to notice that the matters which we decide in this determination are limited, having regard to the facts of this particular case. This case was listed for hearing together with certain other cases involving Claimants who were members of the Ahmadi faith where various other points arose, i.e. points other than those arising in this present case. At the hearing on 23 September 2004, having regard to the time available for argument and the number of matters raised in these other cases, these other cases (save for those which were capable of being immediately dealt with and which were decided by a remittal) were adjourned and this present case was the only case argued before us. We are, of course, concerned only to decide so much as is necessary to determine this present case. Insofar as points emerged in the argument which are not needed to be decided in the present case, but which may be central in other cases as yet un-argued, we leave those points to be decided in the future cases.

3. In summary, and as is explained in greater detail below, this case raises the question of whether there is a real risk of persecution or Article 3 infringing treatment on return to Pakistan for a person who is a member of the Ahmadi faith but who is otherwise unexceptional and who we will, for convenience, refer to as an “unexceptional Ahmadi”. By this expression we mean, in relation to the present Claimant, a man who is of the Ahmadi faith but:

(i) has no record of active preaching and is not a person in respect of whom any finding has been made that there is a real risk that he will preach on return;

(ii) has no particular profile in the Ahmadi faith;

(iii) has no history of persecution or other ill-treatment in Pakistan related to his Ahmadi faith; and

(iv) has no other particular feature to give any potential added risk to him (e.g. by being a convert to the Ahmadi faith).

In summary the present Claimant is a member of the Ahmadi faith, whose home area is Rabwah, but as regards whom there are no additional risk factors specific to him beyond the mere fact that he is a member of the Ahmadi faith from Rabwah.

4. It is not necessary to set out the Claimant’s account on the basis of which he claimed asylum because, save for the fact that the Claimant is of the Ahmadi faith, the Adjudicator did not believe his account. There has been no cross appeal by the Claimant against this finding. The Adjudicator did however accept that the Claimant was a member of the Ahmadi faith. She would also appear to have accepted (and it was on this basis that the case was argued before us by both representatives) that the Claimant’s home area was Rabwah where he had lived from his birth (20 November 1977) until about 1999 when he went to Lahore.

5. The Adjudicator not only rejected as not credible the Claimant’s account as summarised by her in paragraphs 5, 6, 9 and 10 of her determination, but she also found that, even if the Claimant’s account was to be accepted as true, he had only narrated two incidents of problems and that the alleged ill-treatment was not such as constituted persecution. Notwithstanding this finding, however, the Adjudicator then went on to examine certain objective evidence in paragraphs 24 to 26 of the determination including provisions of the penal code, various matters referred to in the CIPU Report on Pakistan, evidence regarding Khatma Nabuwat, and also Article 18 of the United Nations 1966 Covenant on Civil and Political Rights. She referred to Pakistan’s failure to sign the Covenant which she concluded reinforces the vulnerability of minority religions in Pakistan. She concluded there was an insufficiency of protection and that the police do not intervene to prevent violence. She referred to the application of Ordinance XX as being ad hoc and as being on the statute book and she stated that it can and has been applied with rigor and that when it is this amounts to persecution on the basis of religion and to treatment which is contrary to Article 3. In paragraph 27 of the determination she reached this conclusion:

“Accordingly, given the low standard of proof and given the Appellant is accepted as an Ahmadi there would be a real risk of an engagement of the Refugee Convention in respect of the Appellant by virtue of his religion. Ahmadis are at risk and there is an insufficiency of protection and this insufficiency extends throughout the country.”

6. Accordingly the substance of the Adjudicator's determination is that all Ahmadis, including all unexceptional Ahmadis as described above, are at real risk of persecution throughout Pakistan, whether they come from Rabwah or elsewhere.

7. On behalf of the Secretary of State Ms Pal relied on the grounds of appeal which she developed in argument. In summary she contended that the Adjudicator erred in law in the following ways:

(i) She argued that, bearing in mind the findings of the Adjudicator in paragraph 23 of the determination (to the effect that the Claimant’s account was not credible and that even if it was credible the Claimant had not been subjected to persecutory treatment in Pakistan) the Adjudicator had failed to give any reasons which were sustainable in law as to why, despite these findings, the Claimant would be at real risk of persecution on return. Bearing in mind the Adjudicator's finding that every member of the Ahmadi faith would, for that reason alone, face persecution on return, she argued that clear and sufficient reasons for such a finding would be required.

(ii) She drew attention to a previous reported Tribunal determination of [2003] UKIAT 00198 A (Pakistan) notified on
9 October 2003 which was therefore available to the Adjudicator. She argued that this case, which was a stronger case for the applicant in that case as compared to the present Claimant, showed that even if an applicant is an Ahmadi who has been found to be a preacher, this will not necessarily result in that applicant being entitled to succeed under the Refugee Convention. She referred to paragraphs 11.5 and 11.6 of the decision in 198 A and reminded the Tribunal that here there is no finding that the Claimant either has preached or will preach. She argued that the Adjudicator's determination in the present case is contrary to the Tribunal reasoning in 198 A.

(iii) She argued that as the Claimant is not a preacher there is no real risk that he would even ever be identified as an Ahmadi on return and for that reason alone would be at no real risk. She relied on the Tribunal determination in [2004] UKIAT 00139 MC (Pakistan) which she argued also showed that there was no real risk on return to someone merely because they were a member of the Ahmadi faith.

(iv) She accepted that Ahmadis were at risk of receiving some degree of societal harassment and discrimination, but she argued that to assert that every Ahmadi faces a real risk of persecution is unsustainable. She drew attention to the CIPU Report on Pakistan of April 2004 especially at paragraphs 6.81 and 6.87 and she also referred to the number of Ahmadis in Pakistan. Paragraph 6.70 of the CIPU Report shows that four million Ahmadis live in Pakistan (about 2.7% of Pakistan’s population). This paragraph notes that it is difficult to determine the actual size as Ahmadis generally declare themselves to be Muslims. It is recorded that the most recent official census puts the number of Ahmadis in the country to be 286,000. The four million figure is supported by the Ahmadi community itself. Bearing in mind these high numbers she draws attention to the lack of objective evidence of any substantial number of persecutory incidents against Ahmadis. If each and every Ahmadi in Pakistan were at real risk of persecution then, bearing in mind these large numbers, the objective evidence would be full of numerous and extensive incidents of persecution of large numbers of persons.

(v) She argued that there was if necessary a sufficiency of protection for Ahmadis.

8. Before coming to Mr Lewis’ arguments it is useful first to notice the basis upon which he presented his case. Bearing in mind the findings of fact made by the Adjudicator, Mr Lewis argued that once a person is identified as an Ahmadi that person is at real risk of persecution or Article 3 infringing treatment and that there is no sufficiency of protection. That being the general thrust of his argument, Mr Lewis then developed the matter by reference to two bases, namely (a) that the Claimant would return to Rabwah, and (b) that the Claimant would return elsewhere. Clearly it is appropriate first to consider the question of a return to Rabwah, because that is the Claimant’s home area. As regards these two bases:

(a) Mr Lewis argued that if the Claimant were to return to Rabwah and to become a resident in Rabwah it would be assumed against him by the general Muslim population that he was a member of the Ahmadi faith. This is because it is estimated that 95% of the population in Rabwah are Ahmadi. Accordingly the Claimant would effectively identify himself as Ahmadi by returning to Rabwah and, once so identified, would be at real risk of persecution;

(b) If the Claimant were to return somewhere other than Rabwah then Mr Lewis accepted that, bearing in mind the Adjudicator's findings of fact, the Claimant may not immediately be recognised as an Ahmadi. Mr Lewis did not feel able to argue that, on the Adjudicator's findings, the Tribunal had to proceed on the basis that the Claimant would attend an Ahmadi mosque or would act in some overt manner identifying himself as an Ahmadi. However Mr Lewis argued that sooner or later the fact that the Claimant is an Ahmadi would be bound to come out and that, once so identified, he would be at real risk of persecution.

9. In support of his arguments Mr Lewis prepared a helpful and detailed skeleton argument running to 27 pages, which dealt generally with the situation for Ahmadis and then dealt specifically with four cases in which Mr Lewis is instructed and which were listed before the Tribunal. However it is only with the Claimant’s case (AS/53707/03) with which we are at present concerned. Mr Lewis relied upon and developed this skeleton argument and advanced the following points.

10. He drew attention to the circumstances regarding Rabwah and the question of who administers or is in control of Rabwah. He argued that the Tribunal should revisit the analysis in the case of 139 MC which had relied upon an earlier Tribunal determination in Mirza in which it had been held that as Rabwah is a city predominantly occupied by Ahmadis, all levels of authority would include many persons who are themselves of the Ahmadi faith, including members of the police force. Mr Lewis referred to a Canadian Report at page 27 of bundle C stating that almost all government services including the post office, local police and magistrates’ offices, are staffed by non-Ahmadis. He also in this connection referred to a letter dated 11 May 2003 from the Ahmadiyya Muslim Association UK to Messrs Thompson & Co (bundle A page 106) stating that there are no Ahmadis in the police, judiciary or other administrative offices at Rabwah and that this has long been a deliberate policy of the government to disallow such postings even at a low level. This letter also records attacks on Ahmadis in Rabwah and the adverse attention to Rabwah given by fundamentalist groups. The letter suggests that Rabwah is in many ways a less safe place for Ahmadis than other towns in Pakistan and that the country’s anti-Ahmadi religious laws are equally applicable there and that:

“As a vast majority of the local population is Ahmadi, there is no problem for Ahmadi-bashers to make sure that the targeted individual is an Ahmadi”.

Mr Lewis also referred to a State of Human Rights 2003 Report at page 187 of the bundle in this connection.

11. Having regard to the foregoing and the fact that 95% of the population of Rabwah is Ahmadi Mr Lewis argued that the Claimant would indeed be identified as being Ahmadi and would indeed be seen as a potential target for those hostilely inclined to Ahmadis merely by virtue of returning to Rabwah. As regards the population of Rabwah Mr Lewis drew attention to the fact that there may be some uncertainty (see paragraph 18 of his skeleton) as to the present population which may be somewhere between about 35,000 or 45,000 – he accepted that in any event it was a town with a population well into five figures.

12. He argued that the question of whether or not an Ahmadi would preach on return was not the determinative issue as to whether that person would be at risk. Risk would arise if that person were identified as being Ahmadi. Preaching is merely one way in which identification may occur.

13. Mr Lewis recognised the figure of four million Ahmadis in Pakistan and that this was a substantial number. However he drew attention to the discrepancy between this four million and the number shown in the census return (i.e. the number of persons who were prepared actually to declare themselves as Ahmadi on the census return) being only 286,000. He argued that this was an indication of the sense of repression and risk which Ahmadis felt, in that they were not prepared to risk declaring themselves as such.

14. Mr Lewis referred the Tribunal both in his skeleton and in oral argument to the reasons why the majority Muslim population and indeed the state itself are ill-disposed to the Ahmadi faith, see paragraphs 2 to 10 of his skeleton where he emphasises that Islam is the only religion acceptable and that Pakistan is an Islamic Republic and that there is a fundamental difference between the Ahmadi faith and mainstream Islam and that mainstream Islam view the Ahmadi faith as denying the finality of the Holy Prophet of Islam Mohammed, which constitutes a direct challenge to the core and basic tenet of Islam. He drew attention to the provisions of the Penal Code prohibiting Ahmadis from calling themselves Muslims and for the potential difficulties for Ahmadis under the provisions of the Penal Code. There were also difficulties in voter registration and in obtaining a passport, where an Ahmadi may be required, if they wish to avoid difficulties, to declare themselves as non-Muslim.

15. Mr Lewis drew attention to the US Department of State International Religious Freedom Report 2003 at page 44 of the bundle regarding the implementation of the blasphemy laws and indicating that blasphemy laws often target members of the Ahmadi community and that according to Ahmadi sources 89 Ahmadis were charged formally in criminal cases on a “religious basis” (including blasphemy) in 2002, compared to 70 cases in 2001 and 166 cases in 2000. Mr Lewis accepted, so far as concerns these numbers, that bearing in mind there are four million Ahmadis in Pakistan and 286,000 Ahmadis who declare themselves as such on the census form, that he cannot argue that for any random Ahmadi there is a real risk of being charged under the blasphemy laws. However he argued that bringing charges under the blasphemy laws is only one example of the manner in which Ahmadis are persecuted.

16. He argued that Ahmadis face other forms of persecution, beyond prosecution under the blasphemy laws, by virtue of societal discrimination and violence. By way of example he referred to the passage at page 54 of bundle A recording a mob storming an Ahmadi family’s house but where the local police, although aware of the gathering mob, did not intercede to protect the family. Shortly afterwards the police arrived to arrest the Ahmadi family on a charge under Section 298C of the Penal Code. This was an example first of a mob targeting an Ahmadi family and secondly of the persons who were being attacked getting no assistance from the authorities and, in fact, finding that they themselves were taken into custody by the authorities rather than the wrongdoers. As regards adverse treatment from non-state actors Mr Lewis drew attention to the Khatam-e- Nubuwwat, see paragraphs 24 to 27 of the skeleton.

17. Mr Lewis argued that, once a member of the Ahmadi faith is in the position of needing protection from the authorities against non-state actors, there is at least a real risk that that person will be denied such protection, and he referred to the matters in paragraphs 28 to 35 of his skeleton argument.

18. Accordingly and in summary Mr Lewis argued that if the Claimant returns to Rabwah he will be identified as an Ahmadi and will be at real risk of persecutory treatment, against which there will be no sufficiency of protection. If he goes elsewhere then, while he may not immediately be so recognised, he will be recognised as an Ahmadi sooner or later (e.g. upon getting into some dispute with a neighbour). He argued that, once so identified, the Claimant would be at real risk of persecutory treatment and, once again, there would be no sufficiency of protection for him.

19. The Tribunal is unable to accept Mr Lewis’ arguments. We have concluded that the Secretary of State's appeal must be allowed. Our reasons are as follows.

20. In our Judgment the learned Adjudicator did, with respect, err in law in the manners identified by Ms Pal. A decision that all Ahmadis are, for that reason alone (i.e. solely because they are Ahmadis), at real risk of persecution on return to Pakistan is contrary to previous Tribunal decisions. The Adjudicator therefore erred in law in reaching her conclusion without taking into consideration previous Tribunal decisions, including in particular 198 A and she also erred in law in failing to give any sufficient and legally sustainable reasons as to how she reached the conclusion she did reach in paragraph 27 of the determination to the effect that there would be a real risk of persecution or Article 3 infringing treatment for the Claimant merely because he is an Ahmadi.

21. In the present case the Adjudicator disbelieved the Claimant’s account. She found that he was an Ahmadi but, beyond that, she rejected his account. Accordingly the Claimant falls within the category of persons which we have, for convenience, described as the “unexceptional Ahmadi”, see paragraph 3 above.

22. There are four million Ahmadis, on the Ahmadis’ own figures, in Pakistan. About 286,000 persons are sufficiently determined Ahmadis to declare themselves as such on the census return. So far as concerns the Claimant there is nothing before us to suggest that he would fall within the latter category rather than the former, and Mr Lewis did not advance any significant argument to the contrary.

23. If there was a real risk of persecution for all of the four million Ahmadis in Pakistan merely because they are Ahmadis, then we would expect greatly more objective evidence detailing widespread and numerous events of persecutory treatment against Ahmadis. Even if the Claimant falls within the 286,000 Ahmadis who would actually declare themselves as such on the Census Return, we once again conclude that if there was a real risk of persecution for each of these 286,000 Ahmadis merely because they are Ahmadis there would be greatly more reports of persecution in the objective evidence. Rabwah is a city whose population we are invited to take as well into five figures, being perhaps 35,000 to 45,000. The population is about 95% Ahmadi. If for any Ahmadi, including all unexceptional Ahmadis, in Rabwah there was a real risk of persecution or Article 3 infringing treatment there would once again be far more extensive reports of such matters occurring in Rabwah to be found in the objective evidence.

24. Whether one looks at the matter on a countrywide basis or in relation to the city of Rabwah, there are a number of reports of Ahmadis being the subject of prosecutions under the Penal Code and a number of reports of hostile action (sufficiently serious to be persecutory) against Ahmadis by non-state actors. However bearing in mind the numbers revealed in the objective evidence we see no real risk for the Claimant that he will become the subject of a blasphemy charge or any other serious charge under the Penal Code by reason of being an Ahmadi. So far as hostile treatment by non-state actors is concerned, some of these attacks are directed at persons of high profile (such as active preachers) within the Ahmadi community – and the Claimant, on the Adjudicator’s findings, would not be at risk of being so targeted. There may also be random attacks on Ahmadis of no particular profile, merely because they are Ahmadis. The Claimant would face a possibility that he would be unfortunate enough to be the person who was the subject of such a random attack. However this would be no more than a mere possibility. Having regard to the objective evidence before us this possibility falls well short of being anything that could be described as a real risk or a reasonable likelihood.

25. Accordingly we conclude that for the unexceptional Ahmadi, as described by us above (into which category the Claimant falls) there is no real risk of persecutory or Article 3 infringing treatment on return to Pakistan (whether to Rabwah or elsewhere) merely by reason of being an Ahmadi. This is the limited point which the present case determines. Bearing in mind this finding there is no need for us to make any further findings (and we expressly do not do so in the present case) on the question of whether, supposing there were a real risk of persecutory treatment from non-state actors for the Claimant, there would be a sufficiency of protection for him either in Rabwah or elsewhere. Nor do we make any finding regarding whether an internal flight alternative to Rabwah is available to an applicant whose home area is elsewhere and who has been found to be at real risk of persecution on return to his home area.

26. In the result the Secretary of State's appeal is allowed.

HIS HONOUR JUDGE HUSKINSON
VICE PRESIDENT