Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04983/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 7 November 2013
On 27 December 2013

Before

DEPUTY UPPER TRIBUNAL JUDGE MCWILLIAM

Between

MQ
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Khan, Counsel, instructed by Thompson and Co Solicitors
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DETERMINATION AND REASONS
I make an order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellant.
1. The appellant is a citizen of Pakistan and her date of birth is 21 July 1980.
2. The appellant’s appeal against the decision of the Secretary of State to refuse to grant her asylum was appealed by the appellant and her appeal was dismissed by Judge of the First-tier Tribunal S P J Buchanan in a determination which was promulgated on 9 July 2013 following an oral hearing on 25 June 2013. Following a hearing before me on 18 September 2013 I found that the Judge of the First-Tier Tribunal materially erred and set aside the decision to dismiss the appeal. The main reason for setting the decision aside was that in my view the judge had misunderstood the appellant’s evidence this had led to him making adverse credibility findings against the appellant. The error of law decision is annexed hereto.
3. The appellant appeals against the decision of the respondent on 10 May 2013 to refuse to grant her asylum and the decision of the same date to remove her.
4. The appellant claims to be a refugee and that his removal would place the UK in breach of its obligations under the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (“the Qualification Regulations”). Alternatively, the appellant claims to be entitled to the grant of humanitarian protection (“humanitarian protection under paragraph 339C of the Immigration Rules”). In so far as applicable the appellant also claims that removal would place the UK in breach of its obligations under the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“the 1950 Convention”). The burden lies upon the appellant to establish that at the date of the hearing there are substantial grounds for believing that the respective requirements are satisfied. Decisions which may put an appellant’s life at risk call for the most anxious scrutiny.
The Background
5. The appellant applied for a UK visa on 7 June 2012 and this was issued on 22 June 2012. The visa gave the appellant leave to remain as a student in the UK until 22 November 2013. The appellant flew to the UK using her own passport on 10 July 2012 where she claimed asylum at the airport on arrival.
The Evidence and the Hearing
6. On the file is the respondent’s bundle which contains the Asylum Interview Record of 2 May 2013 and letters from the AMA (Ahmadiyya Muslim Association) UK of 10 August 2012 and 25 April 2013 (the appellant submitted these in support of her application). There was the appellant’s bundle that was before the First-tier Tribunal which contained her first witness statement of 25 June 2013. There was a second witness statement of 16 September 2013 which was not before the First-tier Tribunal.
The Evidence of the Appellant
7. The appellant’s evidence is contained in her two witness statements. In addition she gave oral evidence in Urdu through an interpreter Mr M Ahmed. Her evidence can be summarised.
8. The appellant is a Pakistani national from a high profile Ahmadi family living in Rebwah. Her family, consisting of her parents and two sisters, remain in Rebwah. She resided with them before she came to the UK. Her mother was very active doing community work as was one of her sisters. Her father is Ahmadi by faith but he does not have a post within the community. Prior to coming to the UK she and her family were residing in Rebwah. She was an active Ahmadi member of the Ahmadiyya community within which she held the position of secretary for preaching and education. Before 2010 her main duty within the organisation was to preach to non-Ahmadis. She would organise programmes in order to preach to non-Ahmadis who she invited to her home so they could watch an international television station about Islam in the Ahmadiyya faith. The meetings took place every three months and they were arranged by the appellant.
9. The appellant taught the Koran to Ahmadis and arranged preaching classes where she would teach Ahmadis how to preach and how to make contact with non-Ahmadis. The appellant also took part in fund raising activities. She helped poor non-Ahmadis.
10. In 2010 it became more difficult for Ahmadis to practise their faith in Pakistan. Her mother and sister are still active within the Ahmadi community but they do not do activities as often as they used to. They still have non-Ahmadi friends (whom they trust not to inform others) to visit them, but this is not a formal arrangement as it was previously. Her mother and sister do not preach openly, but they do preach to their non-Ahmadi friends who visit them at their home.
11. The appellant’s duties in Pakistan came to a standstill in 2010. Classes had to be held in secret. The appellant could not face this and the only way to openly do her work would be to stay in the UK. Things were deteriorating daily in Pakistan where there is no concept of freedom for Ahmadis. Her parents are not leading a free life and if they had the opportunity they would also come to the UK. The appellant had no alternative but to complete the Visa Application Form in the way that she did in order to flee Pakistan and come to the UK in order to practise her faith openly.
12. The appellant has never been attacked by anyone in Pakistan as a result of her faith. The appellant’s uncle who was a high profile Ahmadi a Doctor Munawwar Ahmad Sahib was killed on 14 May 1989 and his name appears on the list of martyrs.
13. Since the appellant has been in the UK she has been connected with the Ahmadiyya community and she continues to preach openly and freely. Initially she went to the Nasir mosque in Hartlepool, Middlesbrough and attended meetings. She attended Friday sermons followed by prayers. She teaches Ahmadi women and distributes leaflets to members of the public to increase their knowledge of the Ahmadiyya community. She openly practises her faith.
14. The appellant was interviewed at some length in relation to her claim. The relevant parts of the interview in relation to the appellant’s activities are as follows:-
“44. Q. How would you express your religious belief in Pak? What things would you do on behalf of the Ahmadi community?
A. I worked in the Education Dept – as the secretary of the Preaching Dept I did admin – I used to teach the Koran to our community – the correct pronunciation – if there were problems within the community I might help to solve these problems – our local group had an organisation, there is a local president, helping the present was one of my duties.
44. Q. Anything else at all? Did you attend mosque?
A. For the last three years our females have been banned from mosque – this is because of security concerns – the women have been stopped by our organisation due to security concerns – all the large gatherings have been stopped as well – there are some small groups up to twenty people to do our prayer – when there is a high level of threat we stop them – we change the venue and get private security.
56. Q. You state that you town was peaceful – you were experiencing no direct problems due to your religion – you were carrying out a full range of Ahmadi activities – why did you want to claim asylum?
A. All of our activities – going to the mosque, women’s activities, sports activities - all now stopped - our community is peaceful…[long pause] …the preaching activities are different now – we are told to do them carefully – before this there were gatherings when we invited non-Muslims – we organised medical camps where food was distributed – invited people through the Ahmadi TV channel.
68. Q. OK – that is not preaching – that is just having a discussion with individuals. No – it’s preaching – I tell them I am an Ahmadi – tell them we are the same but these are the difference – depending on levels of interest we might give out a book tell them about our websites.
69. Q. No – preaching implies that you stand up and talk to strangers - try to convert people?
A. No – our method is not like that – we don’t approach people directly – we befriend them and get to know them – if they are interested and we find this out we might raise it – if events are organised we might invite people to these things – only once we know – we had peace conferences – I didn’t go to that as it was in London.”
15. The appellant’s evidence in her witness statement in relation to her activities as an Ahmadi member of an Ahmadiyya community is as follows:-
“8. I was an active Ahmadi member of Ahmadiyya community. I have worked as secretary for Preaching and Education Department. I would teach holy Quran to Ahmadi and non-Ahmadi children and Ahmadi ladies.
9. I would devote my time for the community as a volunteer; I would teach holy Quran and translation for Namaz (prayer) to Ahmadi children and ladies. I would also advise Ahmadis to read religious books. I would also arrange monthly preaching classes. I would teach them how to preach, how to speak and how to make contacts with non-Ahmadis. I would also tell them about our basic beliefs.
12. I was a preacher of my faith; about ten to fifteen non-Ahmadi ladies were under my preaching. I was in the eye of mullahs and Khatm-e-Nabuwat that I am propagating my faith. I would arrange gathering for preaching and would invite non-Ahmadis at my home for preaching. I would show them MTV (Muslim Television Ahmadiyya) programmes. I would also help poor and needy non-Ahmadis. I would give them money and gifts on Eid festivals.
15. I am actively participating in religious activities since my arrival in the UK. I attend mosque regularly for congregational prayers. I have attended annual convention, Eid festivals, branch meetings.
16. I participate in all these activities to propagate my faith and convert people to Ahmadiyya faith.
17. Since I have arrived in the UK I am able to preach my religion openly, I can go to mosque and feel secure. I have also given books to my non-Ahmadi friends for preaching.”
16. In relation to the refusal letter the appellant’s evidence in her witness statement is as follows:-
“23. As regards paragraph 25 of the refusal letter I would like to state that as I have stated in my witness statement above. I was a preacher of my faith and secretary for Preaching Department. I would arrange gathering for preaching purposes. I was not able to perach openly, I was always scared of mullahs of Khatm-e-Nabuwat. Our local community has now prohibited us to preach in Pakistan.
24. As regards paragraph 26 of the refusal letter I would like to state that I have been working actively within the community since I arrived in the UK. I have been leafleting, attending preaching stores and preaching to non-Ahmadis by giving them books and literature to read.”
17. The appellant submitted a letter of 10 August 2012 from the AMA UK. The author of the letter is Mubarka Qamar and the correspondence is to Thompson and Co Solicitors. The author of the letter indicates that according to information received from the organisation’s headquarters in Pakistan the appellant is an Ahmadi and a bona fide member of the Ahmadiyya Muslim community and that she participated in activities including the following:
“1. A teacher of the Quar’an class from 1996 to 2012.
2. The assistant general secretary of females of the branch from 1996 to 1998.
3. The secretary for education for the females of the branch 2000 to 2007.
4. The secretary of Islaho Irshad (self-reformation, reconciliation and compliance of instructions from the centre) for the females from 2009 to 2012 and
5. The group leader of Arabic grammar from 2008 to 2012.”
18. In the final paragraph of the letter it is stated that the appellant has participated in the preaching programmes of the branch including sending groups of people for preaching to various areas around Rabwah and taking part in holding free medical camps.
19. The appellant also submitted a letter from the AMA UK of 25 April 2013. The author of the letter was Dr Munawar Ahmad Chaudhry who stated that according to information received from the president of the Hartlepool branch the appellant participates in the following activities;
“(a) attended congregational prayers, Friday sermons/prayers, Eid prayers, annual convention of the community, gatherings of Iajna (females), preaching classes, and branches general monthly meeting;
(b) participated in the preaching programme of the branch including distribution of our literature and one to one conversation with non-Ahmadi Asian origin females;
(c) performed duties of general nature assigned to her by the community officials;
(d) helped in the maintenance and cleaning programme of the branch;
(e) taught translation and pronunciation of the holy Quar’an to the girls.”
Submissions
20. Mr Bramble indicated that he relied on the reasons for refusal and accepted that in this case the issue was one of credibility and how much weight to attach to the two letters from the AMA. He accepted that the case turned on credibility and should the appellant be found credible her appeal should be allowed on the basis that she would be at risk. At [25] of the refusal letter the respondent indicated that it was not accepted that the appellant had preached in Pakistan. According to the respondent the appellant’s own evidence (in her interview) was that she did not engage in direct preaching or proselytising in Pakistan but chose administrative work behind the scenes.
21. Mr Bramble stated that it was accepted that the appellant is of Ahmadi faith. It was not accepted she was from a high profile Ahmadi family as there was a dearth of evidence in relation to this. The evidence that the appellant produced namely the list of martyrs and a photograph did not substantiate her claim.
22. The appellant was unable to confirm whether her family were preaching in Pakistan or not although this is not consistent with her evidence that she is in contact with them. The appellant in her witness statement [10] asserted that she had been targeted whilst it is clear from her evidence that she has not been individually specifically targeted and it is the case that her family are still allowing people into their home. If one looks at the background evidence in relation to Ahmadis it is surprising that a family of such high profile are not being targeted particularly as non-Ahmadis are attending their home. Mr Bramble referred me to question 56 of the AIR where the appellant refers to her activities. She did not mention preaching to non-Ahmadis as a priority, but now her evidence is that it was her main activity. The respondent’s case is that the appellant is an Ahmadi and she arranged in-house education programmes as she explained in her interview. However, she has gone on to bolster her claim.
23. The appellant’s evidence in her witness statements is inconsistent with the evidence contained in the letters from the AMA. The 2013 letter from the AMA is, in Mr Bramble’s view, a generic letter. There is no proper detail about the preaching programmes that the appellant has been involved in and there is no reasonable explanation why the author of the letter or anyone from the organisation has not attended the Tribunal in order to give evidence in support of the appellant. Mr Bramble referred me to the appellant’s most recent witness statement where in his view the appellant has exaggerated her claim even further. She mentions activities that pre-date the hearing before the First-tier Tribunal; however, there is no reasonable explanation why this evidence was not before the First-tier Tribunal and it is not supported by the letter from the AMA.
24. It is accepted that the appellant has studied the Ahmadiyya faith, but this indicates that she is someone who is active within the Ahmadiyya community and interested in understanding her faith. It does not establish that she would be at risk on return because she would want to practise her faith in such a way that it would put her at risk.
25. In submissions Mr Khan confirmed that the appellant would not be relying on Article 8 of the 1950 Convention on Human Rights. In his submission the appellant has simply amplified her evidence in her statements. She has had the opportunity to prepare witness statements in a comfortable environment and she has simply expanded on the facts already told to the respondent during the interview.
26. The letters from the AMA confirm the core elements of the appellant’s claim. It is not within the appellant’s control to determine what is written in the letters. She is participating in open discourse and preaching. Mr Khan referred me to page 107 of MN and Others (Ahmadis - Country Conditions – Risk) Pakistan CG [2012] UKUT 00389, Appendix A at page 109 which is a glossary of words as provided by the parties. Entry number 64 refers to tabligh and the literal translation of this is shown to be preaching; however, the Ahmadi context translation is preaching, propagation to non-Ahmadis. When the appellant stated that she preached this meant to non-Ahmadis.
27. It is accepted that the appellant did not receive direct threats, but her evidence was that she ceased preaching in 2010 in order to avoid ill-treatment and that she lead a compromised life in Pakistan. Mr Khan referred me to the interview at questions 74 and 79. In answer to question 79 the appellant stated that the situation in Pakistan was unbearable to her.
The Law
28. In order to succeed the appellant must show that she falls within the country guidance decision of MN and Others. This decision sets out the current practice for Ahmadis in Pakistan. It states that it is possible in general for Ahmadis to practise their faith on a restricted basis, either in private or in the community with other Ahmadis, without infringing domestic Pakistan law. The background to the risk faced by Ahmadis is legislation that restricts the way in they are able to practise their faith openly. This legislation not only prohibits preaching in other forms of proselytising but also in practice restricts other elements of manifesting religious belief, such as holding open discourse about religion with non-Ahmadis, even where these do not amount to proselytising. The prohibitions include referring openly to one’s place of worship as a mosque and to one’s religious leader as an imam. Ahmadis are not allowed to refer to the call to prayer as “azan,” or to call themselves the Muslims, or to refer to their faith as Islam. Sanctions include a fine and imprisonment, and if blasphemy is found, there is the possibility of the death penalty, although to date this has not been carried out. If the death penalty is imposed there is a risk of lengthy incarceration. This legislation is used by non-state actors to threaten and harass Ahmadis.
29. The decision proceeds to state that 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 penal code, he or she is likely to be in need of protection, in the light of the very serious nature of the sanctions that potentially apply as well as the risk of persecution for blasphemy. It is no answer to expect an Ahmadi who fits this description to avoid engaging in behaviour to avoid a risk of protection.
30. According to MN, the first question the decision maker must ask is (1) Whether the claimant genuinely is an Ahmadi. This is likely to include an enquiry as to whether the claimant is registered with an Ahmadi community in Pakistan and worshipped and engaged there on a regular basis. Post-arrival activity will also be relevant, as well as evidence from the UKAMA headquarters regarding activities in Pakistan. The next step (2) involves an enquiry into the claimant’s intentions or wishes as to his or her faith if returned to Pakistan. There is a need to establish whether it is of particular importance to the religious identity of the Ahmadi concerned to engage in behaviour contrary to the penal code. The burden is on the claimant to demonstrate that any intention to practise or manifest their faith in this way is genuinely held and of particular importance to the claimant to preserve his or her religious identity. All the evidence must be evaluated including behaviour since arrival in the UK, where relevant. If the claimant discharges this burden, he or she is likely to be in need of protection.
Findings and Reasons
31. In this case it was accepted by the respondent that the appellant is an Ahmadi and that she engages in activities, but that these activities are within the community. It was not accepted that she preaches to or holds open discourse with non-Ahmadis.
32. I had the benefit of hearing the appellant give oral evidence. She was competently cross-examined by Mr Bramble at some length. In my view her evidence was credible. I accept that the evidence contained in the letters from AMA, the appellant’s interview and her witness statements is not perfectly consistent. However, having considered the evidence as a whole including the appellant’s oral evidence, I find that she has established on the lower standard of proof, that whilst she was in Pakistan prior to coming to the UK she was an active member of the Ahmadiyya community. I find that she worked as a secretary for preaching and education and part of her activities included arranging meetings at her home where she would preach to non-Ahmadis. I accept that prior to 2010 she would hold open discourse about religion with non-Ahmadis. I accept that when the appellant uses the word preaching she means preaching or open discourse with non-Ahmadis. I accept that appellant’s evidence in relation to activities in the UK.
33. I have taken on board Mr Bramble’s submissions that are not without merit. It is a fact that the appellant’s evidence is not entirely consistent. Her witness statements, in particular the second statement, contain details of her activities that are not particularised in the letters from the AMA. In addition there is no explanation why the evidence contained in the second statement was not before the First-tier Tribunal. It is likely considering the evidence as a whole that the appellant has exaggerated and embellished certain aspects of her evidence (including evidence relating to her family’s profile); however, this is not fatal to the appeal. The appellant has been consistent in relation to the core of her account. It has always been the case that the appellant has preached her faith (to non-Ahmadis in Pakistan and the UK). This is supported by the evidence of the letters from AMA. In relation to the appellant’s interview, I accept that the details given by an appellant are very much dependent on the questions that are asked and what is said must be considered in the context of an interview situation which is by its very nature stressful. However, notwithstanding this, the appellant stated in her interview (see AIR Q 56) that she preached to non-Ahmadis.
34. The first letter from AMA UK of 10 August 2012 supports that appellant’s evidence that she participated in preaching programmes. It is in general terms, but it is broadly consistent with the appellant’s evidence. Likewise the letter of 25 April 2013 is lacking in detailed, but it is not at odds with the appellant’s evidence. Significantly in my view the appellant mentioned in her interview that she engaged in preaching activities and she referred to gatherings where non-Muslims were invited (the appellant stated that this was an error in translation and should read non-Ahmadis and this was accepted by Mr Bramble). The evidence from the AMA must be considered in the context of the evidence as a whole and in the context of the findings of the Upper Tribunal in AB (Ahmadiyya Association UK – Letters) Pakistan [2013] UKUT 511 (IAC). In this appeal, the letters are not determinative and the letter from Hartlepool branch does not give specific information as to the claimant’s activities in the UK. However, having considered the evidence as a whole, I find that they are reliable and broadly speaking support the appellant’s evidence.
35. From the evidence overall, the appellant has demonstrated that it is of particular importance to her religious identity to practise and manifest her faith openly in Pakistan. I accept that the position for Ahmadis deteriorated after 2010 and the appellant did not then participate so much in open discourse and preaching to non- Ahmadis. I accept that she found this “unbearable” as she stated in her interview and she corroborated this in oral evidence. I find that she avoided engaging in behaviour that would put her risk (post-2010 before coming to the UK) in order to avoid the risk of persecution.
36. Mr Bramble is correct to point out that there is no corroboration from family members or members of the community in Pakistan. The appellant in oral evidence stated that she did not think this was necessary because she had obtained letters from the AMA. The appellant was asked by Mr Bramble why she had not obtained better evidence in relation to the death of her uncle and again the appellant stated that she did not believe that it was necessary for her to do so. I accept the appellant’s evidence about this. In my view the appellant’s first witness statement was poorly drafted. Considering the evidence as a whole I accept that the appellant has been guided by her legal representatives in this case and that she genuinely did not consider that it would be necessary for her to obtain further and better evidence or to make further contact with the AMA in order to clarify issues.
37. Mr Bramble submitted that it was not credible that the appellant would not be aware of whether or not her family were preaching in Pakistan as she is in regular contact with them. In my view the appellant’s evidence on the point was that her mother and sister were preaching in Pakistan up until 2010 and that since then non-Ahmadis still come to the home but this is in an informal context. I accept the appellant’s evidence in relation to this.
38. The appellant made an application for entry clearance in order to obtain a student visa. It is a fact that she completed the form giving details which are at odds with the appellant’s evidence in this appeal. I have considered this in the context of the evidence as a whole and I have attached significance to the fact that the she claimed asylum on entry to the UK at the airport.
39. Having accepted the appellant’s activities in Pakistan and the UK, the appellant has established that she would wish to practise and manifest aspects of her faith openly that are not permitted by the Pakistan penal code and therefore she has discharged the burden and in my view is in need of international protection.
40. Internal relocation is not a safe option for the appellant.

The Decision
41. The appeal is allowed on asylum grounds.
42. The appeal is allowed under Article 3 of the 1950 Convention on Human Rights.

Signed Joanna McWilliam Date 21 November 2013

Deputy Upper Tribunal Judge McWilliam