FA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 763

Case No C5/2015/0415[2016] EWCA Civ 763
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Kopieczek
AA/09118/2014
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14 July 2016
Before
LORD JUSTICE MOORE-BICKVice-President of the Court of Appeal, Civil DivisionLORD JUSTICE TOMLINSONLORD JUSTICE KITCHIN
Between
FA (PAKISTAN)AppellantSECRETARY of STATE for the HOME DEPARTMENTRespondent
Mr. Eric Fripp (instructed by Lester Dominic Solicitors) for appellantMr. Russell Fortt (instructed by the Government Legal Department) for respondentHearing Hearing date : 16 th June 2016
JudgmentLord Justice Moore-Bick :
[1]This is an appeal by the appellant, FA, against the decision of the Upper Tribunal dismissing his appeal against the refusal of his claim for asylum by the Secretary of State for the Home Department. The appellant succeeded in his appeal to the First-tier Tribunal, but the Upper Tribunal re-made the decision after having found that the First-tier Tribunal had made an error of law in reaching its decision.[2]The appellant is an Ahmadi Muslim and as such is a member of a minority group within Pakistan which is subject to social discrimination, harassment and ill-treatment. In the main, however, those Ahmadis who practise their faith discreetly are able to live their lives without being exposed to a risk of persecution of a kind that engages the Refugee Convention.[3]The appellant began his working life as a teacher but, having lost two jobs as a result of his faith, in about 2004 he became a policeman. Eventually the fact that he was an Ahmadi became known and he began to experience discriminatory treatment by his colleagues and senior officers. That must have been unpleasant, but it did not amount to persecution. In 2014 he obtained a visa to visit this country and although his application for leave of absence was turned down, he decided to go anyway, both because he wanted to attend his brother’s wedding here and also because he wanted to attend the Ahmadi Jalsa Salana Convention (the Amadiyya Annual Convention) in London. He came at the beginning of August 2014 and stayed here for a little under two months before returning to Pakistan at the end of September 2014.[4]In October 2014, after he had returned to work, the appellant spoke to his colleagues about his visit to this country and showed some of them pictures he had taken of the Ahmadi festival on his mobile phone. Unfortunately, a clerk working in the office saw the pictures and became angry, accusing the appellant of having returned from abroad with fresh instructions from the leaders of the Ahmadi sect. The clerk was a member of an organisation called Khatme-e-Nubuwat (“KN”), which operates throughout Pakistan. It is virulently opposed to Ahmadis and take steps to suppress the open expression of their faith. The appellant subsequently received threats of physical harm culminating in a letter from a senior member of KN threatening his life. Graffiti were daubed on the side of his house denouncing him as a traitor to Islam. On 12th October the appellant took his wife and children to his parents’ house. Further threats to his life followed and soon after that he left Pakistan and returned to this country where he claimed asylum.[5]The respondent accepted that the appellant was a Pakistani national of the Ahmadi faith, but she rejected his claim for asylum because she was not satisfied that he was being pursued by KN because of his faith or that he was at risk of persecution at its hands. In particular, she thought that the clerk who had seen his photographs must have been aware of the appellant’s faith since at least 2007, when he had invited various colleagues to his wedding, and would not have waited until 2014 to organise attacks on him if he really had been a member of KN. Moreover, she did not accept that the appellant had been prevented from practising his faith as he wished to; in her view he could safely return to his home area and live as he had in the past.[6]The appellant appealed to the First-tier Tribunal, which accepted his account of what had happened to him in Pakistan. However, it also found that, although there is a climate of harassment and discrimination towards Ahmadis, the appellant had never personally felt any real fear until the events which occurred in October 2014. He had managed to live a pretty peaceful life in Pakistan working as a police constable and having some non-Ahmadis among his close friends. Having found that the appellant had been targeted by KN as he had described, the tribunal turned to the question of internal relocation, i.e. whether upon return he could safely live in another part of Pakistan. After considering various passages in the Country of Origin Information Report dated 19th July 2013 describing conditions for Ahmadis in Rabwah, the tribunal turned to consider the case of MN and Others (Ahmadis – country conditions – risk) Pakistan CG [2012] UKUT 389 (IAC). It said this:
“23. . . . MN is a case based on the factual matrix of an Ahmadi who wishes to proselytise his faith. The appellant has never proselytised his faith in the way envisaged in MN. He has had quiet conversations with friends who have asked him about his faith but he has never gone out of his way to breach the Pakistan Penal Code. I am not satisfied that the guidance in MN has any real bearing on the appellant’s case before me which is a well-founded fear of persecution from KN. 24. Having taken into account all the background material placed before me but in particular the respondent’s COI Report I do find as a matter of fact that internal relocation is not available to the appellant.”
[7]The tribunal therefore allowed the appeal.[8]The respondent obtained permission to appeal to the Upper Tribunal against that decision on the grounds that the First-tier Tribunal had failed to give proper reasons for finding the appellant credible and had failed properly to consider the decision in MN. When the matter came before the Upper Tribunal it dismissed the first ground of appeal, but upheld the second. It decided to re-make the decision and, after a fresh hearing, dismissed the appeal against the respondent’s decision.[9]The appellant obtained permission to appeal to this court on the grounds that the Upper Tribunal had been wrong to hold that the treatment by the First-tier Tribunal of the decision in MN involved an error of law which justified setting aside its decision; alternatively, that the Upper Tribunal had been wrong to find that internal relocation was an option open to the appellant. The respondent filed a respondent’s notice out of time, for which an extension of time was sought and granted, seeking to uphold the decision of the Upper Tribunal that the First-tier Tribunal had committed an error of law on the additional grounds that its finding that internal relocation was not available to the appellant was not supported by the evidence. The decision in MN[10]MN is the most recent Country Guidance case dealing with the position of Ahmadis in Pakistan. It is therefore a decision of some importance, which is likely to have a bearing on the determination of any claim for asylum by an Ahmadi from Pakistan. The significance of the decision for present purposes lies in the recognition that it is possible to identify two broad categories of Ahmadis: those who feel compelled to manifest their faith, if necessary in contravention of the Pakistan Penal Code, and those who are content to live quietly and practise their faith in private. The tribunal expressed these findings in the following way: “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.(ii) It is, and has long been, possible in general for Ahmadis to practise their faith on a restricted basis either in private or in community with other Ahmadis, without infringing domestic Pakistan law. 120. (i) If an Ahmadi is able to demonstrate that it is of particular importance to his religious identity to practise and manifest his faith openly in Pakistan in defiance of the restrictions in the Pakistan Penal Code (PPC) under sections 298B and 298C, by engaging in behaviour described in paragraph 2(i) above, he or she is likely to be in need of protection, in the light of the serious nature of the sanctions that potentially apply as well as the risk of prosecution under section 295C for blasphemy. (ii) It is no answer to expect an Ahmadi who fits the description just given to avoid engaging in behaviour described in paragraph 2(i) above (“paragraph 2(i) behaviour”) to avoid a risk of prosecution . . . 122. In light of the above, the first question the decision-maker must ask is (1) whether the claimant genuinely is an Ahmadi. . . . 123. 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. . . . 125.

(i) behaviour”) to avoid a risk of prosecution

[11]Inevitably there will be some Ahmadis who do not fall neatly into either category, perhaps because they feel impelled to discuss their faith with those with whom they come into contact, but do not resort to the kind of public preaching that contravenes the Penal Code. However, the findings of the tribunal in that case provide a basic framework for assessing the degree of risk of persecution to which any individual may be exposed on his or her return to Pakistan. It is perhaps not surprising, therefore, that the relatively cursory attention paid to the decision by the First-tier Tribunal in this case should have led to permission to appeal being granted on that ground. Did the First-tier Tribunal make an error of law?[12]Mr. Fripp submitted that, having considered the guidance given in MN, the First-tier Tribunal was entitled to conclude that it had no real bearing on the appellant’s case. It therefore did not make any error of law, much less one that was material in the sense that it could have affected the outcome of the appeal. He argued that the appeal had raised two points: whether the appellant had been threatened by KN and was at risk of harm if he returned to Pakistan, as he claimed; and whether the appellant could safely relocate to another area of the country. The tribunal had decided the appeal on the basis of the first question and had dealt with the possibility of internal relocation by reference to the specific evidence in the case, particularly the Country of Origin Information Report. Its comment that MN had no real bearing on the case was unnecessary to its decision, but was in any event justified, since it was a case about how the ways in which Ahmadis choose to practise their faith affect the risk of persecution.[13]In my view the decision in MN is of potential significance to any case in which a Pakistani Ahmadi makes a claim for asylum, because it provides the basic findings about the risks to which such persons are exposed in their country of origin. It is clear from that decision that the key question is the extent to which the individual concerned feels impelled to manifest his faith to third parties, by actively seeking converts, preaching or merely talking openly to others with whom he comes into contact. Those who profess their faith openly or actively seek to interest others in it are at significant risk, the extent of which may vary depending on the precise nature and scale of their activities, whereas those who practise their faith privately are not. Although individual cases must be considered on their own facts, MN provides a template against which they may be assessed. The risk of persecution on return cannot be divorced from that of internal relocation and the possibility of internal relocation cannot be divorced from the way in which the claimant chooses to practise his faith. Although KN operates throughout Pakistan, there was no finding in this case that it has the will or the means to track individual Ahmadis, such as the appellant, who move to a different part of the country, so that internal relocation is not an effective option for someone who had come to their attention. Given the tribunal’s findings about the appellant’s way of life before he returned from his first visit to this country in 2014, it was not possible in my view for the First-tier Tribunal to assess the effectiveness of internal relocation without having regard to the findings in MN. In my opinion, therefore, the Upper Tribunal was right to find that a failure to address its findings constituted an error of law which, in view of its potential significance, could not be described as immaterial and justified setting aside the tribunal’s decision. This makes it unnecessary to decide whether the tribunal’s finding that the appellant could not escape persecution by internal relocation was inadequately reasoned or unsupported by the evidence. Did the Upper Tribunal make an error of law?[14]Once it had decided to set aside the decision of the First-tier Tribunal and remake the decision, there was only one issue for the Upper Tribunal to determine: whether the appellant could relocate safely to another part of Pakistan. The tribunal considered MN and found that the appellant fell into the category of those who choose to practise their faith discreetly and would not be likely to act in a way that would attract the immediate attention of KN. The tribunal rejected the suggestion that the appellant could relocate to Rabwah, but it considered that any fear he might have of persecution by KN was not well-founded outside his home area and that relocation to another part of Pakistan would not be unduly harsh.[15]Mr. Fripp submitted that the question of relocation had not been clearly raised by the respondent in her grounds of appeal to the Upper Tribunal and that she should not be allowed to raise it on the appeal. The defect in that argument, however, is that the decision in MN, which the respondent said the First-tier Tribunal had ignored, had a direct bearing on the issue of relocation. He also reminded us of the principle to be derived from HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, [2011] 1 A.C. 596 that a person cannot be expected to conceal an essential aspect of his identity in order to avoid persecution in his country of origin, but that principle, which applies in the case of Ahmadis who feel impelled to practise their faith publicly, is also reflected in the decision in MN itself. It is clear, therefore, that the decision had a direct bearing on the issues which the tribunal had to decide.[16]Mr. Fripp submitted that the First-tier Tribunal’s findings did not really address the issues to which MN was directed, because they did not make it clear why the appellant had chosen to practise his faith discreetly or whether he had contravened the Penal Code without setting out to do so. That was not the view of the Upper Tribunal, however, and indeed in my view the findings of the First-tier Tribunal when read fairly do not support the conclusion that the appellant felt constrained by a fear of persecution to live in a more discreet way than he would otherwise have chosen. The very fact that he was prepared to discuss his faith with close friends and that he invited some of his colleagues to his wedding suggest that he felt comfortable in his way of life until it was turned upside down by the events that occurred in October 2014.[17]In those circumstances it was in my view open to the Upper Tribunal to find that the appellant could relocate safely to another part of Pakistan where he is not known and where he is unlikely to come to the attention of KN. For those reasons I would dismiss the appeal.

Lord Justice Tomlinson :

[18]I agree.

Lord Justice Kitchin :

[19]I also agree.

Cited in 1 later judgment