Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05002/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 1st November 2016
On 16th November 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

MB
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Fripp, Counsel instructed on behalf of the Appellant
For the Respondent: Mr Bates, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Pakistan. In the light of the circumstances of the Appellant's claim I make an anonymity order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
2. The Appellant appeals with permission against the decision of the First-tier Tribunal panel, who in a determination promulgated on 3rd August 2015, dismissed his appeal against the Respondent's decision to refuse his protection claim based on his religion as an Ahmadi.
3. The Appellant's immigration history is not in dispute. In summary, the Appellant was born into an Ahmadi household and in consequence followed the Ahmadi faith. There is no issue in this case as to whether the Appellant is in fact an Ahmadi Muslim. On 28th April 2006 he applied for a visa to enter the UK and was issued with a two year multivisit visa valid from 24th July 2006 until 24th July 2008. Pursuant to that visa he arrived in the UK on 13th September 2006. The Appellant remained in the UK after the visa expired unlawfully.
4. In July 2013, he was encountered on an immigration enforcement visit and was arrested and served with a notice of liability to be removed. Three days after that, the Appellant made his claim for asylum.
5. In pursuance of that claim, a substantive asylum interview was completed and on 10th March 2015 the Secretary of State refused his claim for protection on the basis that she was not satisfied that the Appellant established a well-founded fear of persecution on account of his religion. The Respondent set out the basis of her case in a detailed reasons for refusal letter taking into account the Appellant's factual claim, the country materials available and in the light of the country guidance case of MN and Others (Ahmadis - country conditions - risk) Pakistan CG [2012] UKUT 00389 (IAC).
6. The Appellant appealed that decision and as a consequence it came before the First-tier Tribunal panel on 5th June 2015.
7. In a determination promulgated on 3rd August 2015, the panel dismissed his claim. The panel set out the factual basis of his claim at paragraphs [8] to [20] of the determination. The Appellant's account was that when he was in Pakistan he would participate in activities with the Ahmadiyi Jamaat. The Appellant was a member of an auxiliary organisation called the Majlis Khuidamul Ahmadayya looking after the affairs of males under the age of 40.
8. He asserted that on 24th April 2005 he took a male friend, who was not of the Ahmadi faith, to an Ahmadi event and the friend had collected leaflets containing information. On the following day his friend's father and others came to the house and knocked on the door. He was beaten and sustained injuries to his arm. The incident was reported to the police but because of his faith as an Ahmadi the incident was not registered. The panel noted that there was no medical evidence provided in support of that account.
9. In April 2005 the Appellant went to live at his uncle's house however his friend had contacted him and on 13th August 2005 he was attacked after leaving his uncle's house. He lost consciousness and was treated in hospital for two days. Once he had been discharged, he remained at his uncle's house rarely venturing out save for every two to three weeks to visit his uncle's shop. His father arranged for an agent to obtain a visa to get to the UK.
10. The Appellant arrived in the UK on 13th September 2006.
11. Since his arrival in the UK, the Appellant has participated in activities on behalf of the A Association UK and at the hearing before the First-tier Tribunal, they heard evidence from a witness Mr A and considered the written documentary evidence from the association alongside a number of photographs showing the Appellant practising his faith.
12. The panel's findings are set out at paragraphs [22] to [33] and in reaching their findings of fact they considered the account of his experiences in Pakistan and also his activities in the UK.
13. As to the events in Pakistan, the panel rejected his account of having been beaten in April and August 2005 for the reasons given at paragraphs [24] to [26]. They took into account that the Appellant's uncle with whom he had lived in Pakistan now lived in the UK having arrived in 2008 however, he had not been called to give evidence despite the fact that he would have been able to corroborate the reasons given by the Appellant for coming to live with him in Pakistan; and that he would have been well placed to confirm that the Appellant had been beaten in August 2005 and also provide evidence to support the Appellant's claim given the Appellant's account was that he had lived with him for the last sixteen and a half months before he left Pakistan. The panel also found at [26] that a medical report had not been provided to corroborate or substantiate any injuries from having been beaten.
14. The panel also took into account other matters relating to the Appellant's credibility at paragraphs [27] to [32]. At paragraph [27] they took into account the method by which he had gained admittance to the United Kingdom which included representations being made on his behalf which were false. Furthermore, he had overstayed in the UK rather than admit the deception referred to at paragraph [27] and that he had not made a claim for asylum until nearly seven years after his arrival in the United Kingdom and only after he had been arrested as an overstayer. The panel also rejected his claim, made for the first time in cross-examination, that he had influenced Mr S to convert to the Ahmadi faith. The panel found that to be a late embellishment to his claim.
15. The Respondent and the First-tier Tribunal panel accepted that the Appellant was an Ahmadi Muslim. The First-tier Tribunal panel set out and then sought to apply the country guidance decision in MN and Others (as cited), when applying the country guidance to the factual findings made, they stated at [31] that they had not accepted his account of what had happened in Pakistan and thus they had to consider whether there was any truth in the Appellant's assertion that the freedom to be more open about his faith in the UK had given him a "sincere desire to continue with the activities in the UK" which the panel accepted he had performed. The panel went on to state, "If that were true, it is clear that he would be evincing an intention to engage in what the country guidance refers to as paragraph 2(i) behaviour." At [32] the panel took into account that there was no evidence from the Appellant's uncle and that the finding they had made in which they had rejected his recent claim of having converted a person to the Ahmadi faith which they found to be a lie calculated to promote his case about how prominent a proselytiser he was in Pakistan.
16. At [33] the panel acknowledged that whilst it might seem to be a natural development for any Ahmadi to compare and contrast the freedom which this country afforded him to openly practise his faith with the lack of freedom which Pakistan affords him, the panel did not find there to be a reasonable degree of likelihood that the Appellant "has a sincere desire to practise and manifest his faith in such a manner as would attract persecution in Pakistan." Whilst the panel accepted that he had been involved in religious activities in the UK, in view of the Appellant's "severely damaged credibility" they did not accept the activities could be regarded as a sincere indication of how he would wish to practise his faith in Pakistan. Consequently they did not accept that fear of persecution would prevent him from practising his faith in the manner he wishes. Thus they dismissed his appeal.
17. The Appellant sought permission to appeal that decision and relied upon two principal grounds as set out in the papers before me. Permission was granted by the First-tier Tribunal on 21st August 2015.
18. In a determination promulgated on the 13th June 2016, the Upper Tribunal gave its reasons as to why the First-tier Tribunal panel had erred in law in reaching its overall decision to dismiss his appeal. This determination should be read in conjunction with that determination.
19. Consequently, the decision of the First-tier Tribunal was thus set aside and the appeal was listed for a resumed hearing on the 11th August 2016. The hearing did not go ahead due to witness availability and was adjourned until the 1st November. At that hearing the parties agreed a schedule of findings which was approved by UT Judge Rimmington. They are as follows:
20. Schedule of Findings
(1) The Appellant's identity (including his nationality has been accepted) (RFRL paragraph 22);
(2) It is accepted that the Appellant is an Ahmadi Muslim (RFRL paragraph 26, FTT paragraph 22);
(3) The Appellant's immigration history is not in dispute, the account of it in the Respondent's RFRL being accepted (UTJ Reeds paragraph 3);
(4) The following findings of the FTT are preserved;
(a) The Appellant was not beaten in 2005 because of his religion or religious activity (FTT paragraphs 26 - 28, 30 - 31);
(b) The Appellant did not convert another man, S, to the Appellant's own faith (FTT paragraphs 29 - 32);
(5) The Appellant has been able to express his faith more freely in the United Kingdom than in Pakistan and has been involved in at least some religious events whilst in the United Kingdom (FTT paragraph 33).
21. The issue for re-hearing is whether the Appellant is entitled to protection on the basis of a relevant threat to his freedom to manifest his faith in Pakistan, notwithstanding the rejection of parts of his evidence before the First-tier Tribunal.(See MN and Others (Ahmadis - country conditions - risk) Pakistan CG [2012] UKUT 00389 (IAC)).
22. Although some of the previous findings are preserved, the nature and extent of the Appellant's faith in Pakistan( as relevant) and the United Kingdom and his present commitment to manifest that faith, remain to be determined.
Hearing and Evidence
23. At the hearing before me, further evidence was filed on behalf of the Appellant. This was prepared in a supplementary bundle which included an AMA (UK) letter dated 8th August 2013, a further updated letter of 8th August 2016 and the amended witness statement of the witness Mr A dated 29th May 2015 but amended on 1st November 2016. In addition I heard oral evidence from the Appellant which was the subject of cross-examination by Mr Bates.
24. At the conclusion of the evidence I heard submissions from each of the advocates which I will set out in my Record of Proceedings and which I will refer to in my assessment of the relevant issues.
25. As set out above, the relevant country guidance concerning the risk to Ahmadi Muslims on return to Pakistan is MN and Others (Ahmadis - country conditions - risk) Pakistan CG [2012] UKUT 00389 (IAC) which establishes that a risk of persecution may exist to an Ahmadi who openly (rather than privately) practises their faith.
26. At paragraph [2(i)] of the head note in MN and Others, the restrictions on Ahmadis practising their faith is summarised:-
"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."
27. However, at paragraph [2(ii)] of the head note the Upper Tribunal noted that practise of faith in private is different:-
"2. (ii) It is, and has 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."
28. At paragraph [3(i)] of the head note of MN and Others, the potential risk to those falling within paragraph [2(i)] is identified:-
"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."
29. Further, following HJ (Iran) and Another v the sshd [2010] UKSC 31, in MN and Others it is recognised at paragraph [3(ii)] of the head note that:-
"3. (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."
30. As the Upper Tribunal identified at paragraphs [5] and [6] of the head note, the steps which must be undertaken or answered are set out. Firstly in paragraph [5] it is recorded that the Tribunal must identify whether the individual is genuinely an Ahmadi. In this case it was accepted by the Secretary of State and by the First-tier Tribunal panel that the applicant was an Ahmadi. I therefore proceed on this basis.
31. Then at paragraph [6], the second step is set out relating to the individual's intentions or wishes as to their faith if returned to Pakistan. It reads as follows:-
"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."
32. At paragraph [8], the Upper Tribunal noted that for those seeking to bring themselves within paragraph [6]:-
"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."
33. The decision also considers sur place activity in the UK and its relevance to the issue of an individual's intentions on return to Pakistan at paragraph [9]:-
"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."
34. When applied to this particular appeal, the Appellant's case is that he falls within the risk category identified in paragraph [3(i)] read with paragraph [2(i)] of the head note in MN and Others.
35. I have given careful consideration to the evidence that I have heard from the Appellant and his witness and the written evidence that is set out in the supplementary bundle. I have also given careful consideration to the submissions made on behalf of both parties. I have reached the following conclusions from that evidence, having applied anxious scrutiny.
36. Mr Bates on behalf of the Secretary of State accepts that the adverse findings of credibility made by the First-tier Tribunal are not determinative, but he submits that they are strongly influential in making an assessment of this Appellant's motivation. He submitted that there was evidence from the AMA (UK) and that the Tribunal would have to consider whether the Appellant's motivation was genuine or whether his attendance and his activities was done out of the belief that it would assist him in establishing a claim. He further submitted that the vast majority of his activities were "unremarkable" and could be carried out in Pakistan and that in terms of practising his faith, he was not a "significant player" who was not the "driving force" behind the activities.
37. By way of reply, Mr Fripp invited the Tribunal to consider the Appellant's activities in the light of the country guidance decision and in particular the prohibition to practising his faith as set out in the Pakistani Penal Code as set in the country guidance decision. He reminded the Tribunal of the prohibitions as to the everyday expressions concerning the identity of those of the Ahmadi faith and the opposition that they faced in this regard (paragraphs 101 - 103 of MN and Others (as cited)), and that the PPC does not refer only to proselytising but how the faith is considered and interpreted by other Muslims. He acknowledged the adverse credibility findings made by the First-tier Tribunal but invited this Tribunal to consider the other evidence in support of the Appellant's case, including the letters from the AMA (UK) which shed light on his practise of his faith both in Pakistan and in the UK and the oral and documentary evidence of the witness Mr A. In particular, he submitted, weight should be given to the evidence notwithstanding his poor immigration history and that the Appellant had been practising his faith as an Ahmadi in the UK since 2007 which was a significant period of time before he had made his asylum claim in 2012.
38. The first issues relates to the Appellant's practice of his faith in Pakistan. I begin my consideration the preserved findings of the First-tier Tribunal. The panel were not satisfied that he had converted Mr S to the Ahmadi faith. At paragraph [29] they considered that claim to have done so was a late embellishment of his claim and that had it occurred it would have been put forward at an earlier stage.
39. At paragraph [9], the panel repeated the Appellant's claim that he had participated in activities with the Ahmadiyi Jamaat and considered his circumstances in Pakistan and the events in April and August of 2005. At paragraph [17], they recorded his evidence that:-
"He had felt a sense of relief in this country knowing that he will not be persecuted for his religious identity. He is able to be open about his faith in a manner he could not be in Pakistan. He asserts he is more than determined to continue with the activities he has performed in this country in connection with his faith. He says 'I am at the stage where I do not wish to compromise my religious identity any more or live the rest of my life as a hypocrite.'"
The only finding on this issue is at paragraph [25] whereby the panel stated:-
"To some degree the Appellant himself seeks to draw a distinction between the manner in which he practised his religion in Pakistan and in the UK. It was in Pakistan that he was compromising his religious identity. Now, having tasted the freedom afforded him in this country, he no longer wishes to compromise his religious identity."
40. The Appellant's evidence is that he actively engaged in duties in Pakistan and had tried to attend prayers discreetly because to do so openly would bring "danger to my life". He stated that he could not preach publicly because it was not allowed by the authorities in Pakistan it being against the Pakistani Penal Code and because of the Kathum Nabawat. He further stated that if there had not been any restrictions in place he would have carried out the duties such as leafleting and organising exhibitions as he did in the UK (oral evidence).
41. In cross-examination he was asked about how he practised his faith in Pakistan and he said that he went to the mosque "daily" or "regularly". When asked to indicate the longest period that he went without visiting the mosque he stated that it was a "day and a half" and that he could not go there openly.
42. It is plain that the account given by the Appellant now in his evidence is inconsistent with the evidence given by him before the First-tier Tribunal. As set out at paragraph [13] the First-tier Tribunal recorded his account that following the alleged attack in August 2005, he had remained at his uncle's home rarely venturing out save for visits every two to three weeks to visit his uncle's shop. On his account he had continued to live with his uncle for approximately thirteen months. Thus the account of going to the mosque "daily" and the longest period of his non-attendance being one day to a day and a half is inconsistent with that account.
43. However the First-tier Tribunal rejected his account of persecution in Pakistan and his account of the attack in August 2005 and thus the factual account set out at [13] and recited above. However they did accept that he was an Ahmadi Muslim and that he had practised his faith in Pakistan.
44. I have therefore considered the other evidence available. The witness could not give evidence concerning the Appellant's practise of his faith in Pakistan. However there is some written evidence which provide and lend support to the Appellant's account of practising his faith there. The AMA (UK) has provided a letter of support (see document 1; 8/2013) in which they set out relevant evidence concerning the Appellant's faith which had been confirmed by their headquarters in Pakistan on 28th December 2011. That information confirmed that he was an Ahmadi Muslim by birth and in terms of his faith that he had been connected to the auxiliary organisation which looked after the affairs of male members under the age of 40 years. They set out that he discharged his financial obligations to the community and the duties assigned to him.
45. Having considered the evidence, I am satisfied to the lower standard, and as the First-tier Tribunal found, that he had been born an Ahmadi Muslim (both parents were Ahmadis) and that he had practised his faith in Pakistan and had been connected to the auxiliary organisation who looked after the affairs of male members. The decision of the Upper Tribunal in AB (Ahmadiyya Association UK: letters) Pakistan [2013] UKUT 511, makes reference to the weight to be given to information provided by the organisation and its provenance. Having considered that evidence in its totality, I am satisfied that the contents of the letter (see document 1 of the supplementary bundle) are an accurate summary of the Appellant's practise of his faith in Pakistan. Whilst the panel did not believe his account of the events in April and August of 2005, the Appellant has therefore not demonstrated that he has been subjected to persecution in Pakistan by reason of his faith. However I find, as the First-tier Tribunal panel did, that the Appellant did not practise his faith openly.
46. I have had to consider the reasons as to why he was "compromising his religious identity"; was it because he was satisfied to practise his faith privately or because of the risk of persecution from others? (see HJ (Iran) and another v SSHD [2010] UKSC 31 and paragraph 3(ii) of MN and Others).
47. I have considered this question in the context of the totality of the evidence before me, including that of the Appellant, his witness and the documentary evidence. I have also considered it in the light of the oral evidence given before the First-tier Tribunal and the findings of fact which were preserved.
48. The Appellant's evidence before the FTT at [17] and [25] was that he had been able to practise his faith openly in the UK and that he no longer wished to compromise his religious identity. The evidence before the Upper Tribunal is to the same effect and that he contrasted the freedom that he had had in the United Kingdom and the nature and the practice of his Ahmadi faith now.
49. As the decision in AB (as cited) makes plain, where credibility is a significant issue, the more that a letter from the AMA (UK) as to the individual's activities in the UK can be supported by specific information, the more likely that it would be given greater weight. When applied to this case, the documentary evidence makes reference to the activities carried out by the Appellant in furtherance of his faith which includes attendance at congregation prayers, annual gatherings and participating in preaching programmes including attending the tabligh stall and training classes (I refer to the evidence in the original appeal bundle and letters therein and also the photographs and the AMA (UK) letters in the supplementary bundle).
50. I consider that the evidence should be afforded weight in the light of the written and oral evidence of Mr A, whose evidence I wholly accept. He makes reference to knowing the Appellant since 2007 as a community member and that he has served the Ahmadi community in various capacities including catering and cleaning, that he is a regular attender at prayers and has called the azan (call to prayer) and confirmed that he had assisted in preaching and actively participating in leaflet distribution.
51. In his submissions, Mr Bates made reference to what he termed is a discrepancy between the evidence of the Appellant as to the number of times he would distribute such literature and that of Mr A. The documentary evidence refers to twice per month as did the oral evidence of the witness however the Appellant's evidence was that it would be three weekends. I do not consider that there was such a discrepancy. The evidence of the witness focused on one particular branch of the AMA (UK) whereas the Appellant's evidence referred to his participation with a number of other branches and participation at their stalls. Consequently I do not find there to be a discrepancy as submitted by Mr Bates.
52. Furthermore I do not accept the submission that his activities are "unremarkable". The nature of the enquiry at paragraph [6] of MN is whether the Appellant would be active in Pakistan in breach of the ban and whether he would be suppressing any activity because of persecution. As Mr Fripp pointed out in his submissions, the country guidance case identifies a range of behaviour linked to the identity of Ahmadi Muslims which includes private prayers, prayers with family.
53. Having considered the evidence in its totality I am satisfied to the lower standard of proof that notwithstanding, the Appellant's poor immigration history as set out in the determination of the First-tier Tribunal, the Appellant has been an active member of the Ahmadi community since 2007. For the reasons I have given I accept the body of the written evidence from the AMA (UK), which has been supported by the oral evidence of a credible witness before the Tribunal. That body of evidence does not depend on the Appellant's own credibility, aspects of which have been found to be adverse to him, but that evidence lends support and weight to his account that he is an Ahmadi Muslim whose intention to practise and manifest his faith is genuinely held and of particular importance to hi given his lengthy involvement with his faith in the UK.
54. Furthermore I am satisfied to the lower standard of proof that he has not practised his faith openly because he has suppressed his activity due to the risk of persecution.
55. Consequently for those reasons that I have given, the Appellant brings himself within the categories set out in MN and Others (as cited). I am satisfied that there is a reasonable likelihood that upon return to Pakistan he would continue to manifest his faith as he has now done in the United Kingdom which would bring him to the attention of others in Pakistan and would therefore be at risk on return.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law on a point of law and the decision is set aside. The decision is remade as follows;
The appeal is allowed.

Signed Date 6/11/2016

Upper Tribunal Judge Reeds