“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. (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. 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. (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. 4. The need for protection applies equally to men and women. There is no basis for considering that Ahmadi women as a whole are at a particular or additional risk; the decision that they should not attend mosques in Pakistan was made by the Ahmadi Community following attacks on the mosques in Lahore in 2010. There is no evidence that women in particular were the target of those attacks. 5. In light of the above, the first question the decision-maker must ask is (1) whether the claimant genuinely is an Ahmadi. As with all judicial fact-finding the judge will need toreach conclusions on all the evidence as a whole giving such weight to aspects of that evidence as appropriate in accordance with Article 4 of the Qualification Directive. This is likely to include an enquiry whether the claimant was registered with an Ahmadi community in Pakistan and worshipped and engaged there on a regular basis. Post-arrival activity will also be relevant. Evidence likely to be relevant includes confirmation from the UK Ahmadi headquarters regarding the activities relied on in Pakistan and confirmation from the local community in the UK where the claimant is worshipping. 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. 7. The option of internal relocation, previously considered to be available in Rabwah, is not in general reasonably open to a claimant who genuinely wishes to engage in paragraph 2(i) behaviour, in the light of the nationwide effect in Pakistan of the anti-Ahmadi legislation. 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. 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. 10. Whilst an Ahmadi who has been found to be not reasonably likely to engage or to wish to engage in paragraph 2(i) behaviour is, in general, not at real risk on return to Pakistan, judicial fact-finders may in certain cases need toconsider whether that person would nevertheless be reasonably likely to be targeted by non-state actors on return for religious persecution by reason of his/her prominent social and/or business profile.”
“[Paragraphs 5 & 6 of [MN] explain the two steps to be taken in Ahmadi cases. [Abdul and Rashida] have already been found to be Ahmadis. They have given a consistent account of their involvement with the Ahmadi faith in Saudi Arabia. The correspondence from the Ahmadiyya Muslim Association UK confirms [Abdul’s] active involvement with his faith. [Abdul and Rashida’s] activities fit in to the description given in paragraph 2i) of MN. Continuing to practise his faith in Pakistan will put them at risk of both ill-treatment from society and Khatme Nabuwaat and of possible persecution. It is not reasonable to expect them to compromise their beliefs by no longer engaging in their activities.”
“12. The material differences between the FTR and the Principal Rules including those differences between the Fast Track and ordinary provisions of theTribunal Procedure (Upper Tribunal) Rules 2008 can be tabulated as follows …”
“42. I am, however, satisfied that rule 14 does not provide the complete answer to the claimant's case that at first sight it seems to offer. First, it may be difficult for the appellant to persuade the tribunal that the appeal cannot be justly determined in the limited time available. There may not have been sufficient time to complete inquiries into possible further evidence. An appeal is bound to seek to challenge the reasons given by the SSHD for refusing the asylum claim. As I have said, many refusals turn on adverse findings on the appellant's credibility. The focus of the preparation for an appeal will often, therefore, be on the search for evidence to corroborate the appellant's account in rebuttal of the adverse findings. The period of 7 days between the date of the refusal decision and the hearing of the appeal is bound to be insufficient in a significant number of cases. I have referred to the difficulties facing legal representatives who have to take instructions from clients who are in detention. It may not be possible for them to say whether the further inquiries that they wish to make are likely to be fruitful. In such a situation, it may be difficult to persuade the tribunal that there are cogent reasons to transfer a case out of the fast track. 43. Secondly, the fact that the opportunity to seek a transfer out of the fast track only arises at the appeal hearing itself has the consequence that the appellant is required to argue that the evidence that has already been submitted in support of the appeal is insufficient. The appellant is placed in a very difficult position. The stronger the case he seeks to advance for a transfer on the footing that there are material gaps in his evidence which he needs time to fill by obtaining further evidence, the more he damages his prospects of succeeding in his appeal if the tribunal refuses to transfer the case out of the fast track. In short, in order to explain why the time scales are unjust, the appellant has to identify all the evidential gaps in his case. But if the application to transfer is refused, the appellant will then have to persuade the judge that the appeal should be allowed notwithstanding these gaps. I accept the submission of Ms Lieven that this puts the appellant in an invidious position and is unfair and unjust. 44. Thirdly, it is likely (to put it no higher) that judges will consider the FTR time limits to be the default position. The rule 12 power and the rule 14 duty are mechanisms which are intended to ensure that the tight time limits imposed do not produce injustice in individual cases. But the expectation must be that the time limits will usually be applied. Otherwise the object of the FTR would be defeated. There is bound to be a reluctance to postpone or transfer an appeal on the day of the hearing when time has been allocated for the full hearing of the appeal and the parties and witnesses have come to give their evidence and advance their submissions. The tribunal would be likely to be more sympathetic to an application to postpone or transfer out if it were made at a case management hearing before the date of the hearing. But the timescales of the FTR do not permit this. We were told that typically the FTT hears two or three asylum appeals per day. Rule 10 requires the decision and the reasons for it (which may be extensive and detailed) to be given no later than 2 working days after the day of the hearing. I have little doubt that the judges of the FTT know that, if they were regularly to adjourn or transfer cases out of the fast track, this would be inconsistent with section 22(4)(e) of the 2007 Act which requires that the rules, where appropriate, confer on members of the FTT "responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently". As Ms Lieven puts it, by the time of the hearing, the SSHD and the FTT will have prepared for the appeal and there will be a momentum in favour of proceeding with the hearing which it will be difficult for an appellant to stop. 45. To summarise, in my view the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases. For the reasons that I have given, the safeguards on which the SSHD and the Lord Chancellor rely do not provide a sufficient answer. The system is therefore structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficulty of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention. It seems to me that some relaxation of the time limits is necessary, but it is not for the court to prescribe what is required to remedy the problem. A lawful scheme must, however, properly take into account the factors to which I have referred whilst, I acknowledge, giving effect to the entirely proper aim of processing asylum appeals as quickly as possible consistently with fairness and justice. … Conclusion 49. For the reasons that I have given, the FTR are systemically unfair and unjust. The appeal must, therefore, be dismissed. The object of the SSHD in placing asylum appeals in the fast track is the entirely laudable one of dealing with them quickly. This is not because she considers that they are all hopeless cases. Far from it. Although many of the appeals are dismissed, many succeed. They are placed in the fast track so that they can be handled quickly and efficiently. But the consequences for an asylum seeker of mistakes in the process are potentially disastrous. That is why section 22(4) of the 2007 Act recognises that justice and fairness should not be sacrificed on the altar of speed and efficiency. As I have explained, the FTR do not strike the correct balance between (i) speed and efficiency and (ii) fairness and justice. It is too heavily weighted in favour of the former and needs to be adjusted. Precisely how that is done is a matter for the TPC and Parliament.”