Secretary of State for the Home Department v IA (Pakistan)

In form, this is an appeal by the Home Secretary, brought by permission of Laws LJ, against the allowing by the AIT of two of three conjoined appeals by Pakistani Ahmadis on the ground that they could not find safety in Rabwah from the religious persecution which they had good reason to fear if returned. In substance, however, it is a challenge to a new country guidance decision which the Home Secretary fears is capable of undermining almost every internal relocation answer to an Ahmadi asylum claim.

The Ahmadi faith is a branch of Islam which is regarded by the Sunni majority in Pakistan as heretical. The sect is denied constitutional and legal protection on grounds of blasphemy. It has between 2 and 5 million adherents scattered through Pakistan, many of whom find themselves targeted by – in particular – a militant Sunni fundamentalist organisation named Khatme Nabuwwat (KN). Sometimes the attacks simply have the venal object of driving an Ahmadi family from its land so that it can be seized by others. But there is evidence in other cases, notably where the fugitive has been proselytising, that persecution on religious grounds will follow them, making them refugees unless there is somewhere else in Pakistan where they can safely relocate without its being unduly harsh.

For a number of years that place has been regarded as being Rabwah, a town of 25,000 to 50,000 inhabitants located on a site of a little over a thousand acres which was bought to provide an Ahmadiyya headquarters when, following partition, the seat of the sect in Qadian became incorporated in India. More than 95% of the population of Rabwah is Ahmadi: hence the received view that an Ahmadi could always be safe there. But, as the AIT in the present group of cases found, Ahmadis play no part in the government or administration of Rabwah. Because adherents of the faith are listed on a separate electoral register, few Ahmadis enrol or therefore vote. The result is that if KN militants choose to make life difficult for Ahmadis in Rabwah, the authorities there will not intervene. KN is known to have a strong organisation in Rabwah and to hold rallies several times a year; but there is – in the AIT’s phrase - relatively little evidence that KN uses its power in Rabwah to cause trouble for individual Ahmadis.

While Rabwah is neither a ghetto nor economically deprived, Ahmadis who do not come from the town but who try to relocate there may find it difficult to obtain accommodation and legally impossible to buy land in one part of the town.

Before we turn to the dispute before the court, it is necessary to summarise the three cases before the AIT, of which the first two alone are now under appeal.

IA, a businessman, fled from his hometown when KN members attacked his house, threatening to kill him for having converted three employees, or friends of employees, to Ahmadism. He found work about 200 miles away, only to learn that the police in his hometown were investigating blasphemy charges against him. He bought off the complaint, but when he made two more converts the local mullah was told and he was again threatened with death. He fled to Lahore, but when he learnt that the blasphemy complaint against him had been reopened he fled to the United Kingdom. The immigration judge took the view that IA’s proselytising had been and would continue to be confined to people he already knew, so that he could be safe in Rawbah.

MM’s uncle (his entire family is Ahmadi) was murdered by KN in 2002. MM, perhaps defiantly, began preaching in his village, provoking a visit by KN in which he was threatened. The police would not act, so MM and his family moved to Lahore. There he began preaching again, with the result that KN members vandalised his home. Returning to his home village, he was shot at. A complaint to the police resulted in MM himself being arrested. A bribe secured his release, and he fled to the United Kingdom. The immigration judge found that he had a well-founded fear of persecution in his home village but that he could be safe in Rabwah.

MS, unlike the other two, comes from Rabwah. There, in 2000, she began preaching to non-Ahmadis. A group of KN mullahs attacked her and knocked her down. When she went to the police they arrested her for preaching. Released on payment of a bribe, she moved to Rawalpindi where a group of 20 to 25 mullahs, one of whom she recognised as having assaulted her in Rabwah, attacked the Ahmadi mosque. She fled to Lahore and from there to the United Kingdom. Giving qualified credence to MS’s subjective fear but finding that there was “an attendant risk of greater harm”, the adjudicator (sic: this was in 2003) held that she could nevertheless be safe in Rabwah. The paradox was obvious. It is less obvious how the sectarian manifestations which the appellant feared, however unpleasant, amounted to persecution; but that is not a question for us.

All three appeals were allowed by the AIT (C.M.G.Ockleton D-P, SIJ Storey and SIJ Gleeson) on the ground that Rabwah was not a safe place for any of the three appellants. Because the third appellant’s fear of persecution arose from events in Rabwah itself, the Home Secretary has not sought to disturb the decision that she cannot expect to be safe there. What now concerns the Home Secretary is that, although the tribunal stressed that safety in Rabwah remained a case-specific question, their determination was given country guidance status and is framed in terms which might be thought to lay down that Rabwah is not a safe place for Ahmadis.

Although Upali Cooray for the two respondents has not sought – because he had no need to – to sustain more than the immediate findings in his clients’ favour, the Home Secretary seeks a decision of this court either setting aside the determination of the AIT in relation to them or directing the tribunal to remove the country guidance status accorded to the determination as a whole. Her reasons, as advanced by John-Paul Waite, are summarised in this way:

One of Mr Waite’s grounds is that the AIT have failed to address, save in rudimentary form, the question whether relocation to Rabwah is in any or all cases unduly harsh. The reason why they have not dealt with it is that, as he accepted in argument, until and unless an alternative location in the country of origin is found to be sufficiently safe, the question whether relocating there would be unduly harsh does not arise.

IA’s case was remitted by this court to the AIT by consent. The agreed terms of remission were that it was “for re-determination, limited to the issue of whether the appellant can be expected to relocate to Rabwah. Such issue is to include consideration of the general safety of Rabwah for Ahmadis, as well as whether it would be unduly harsh to relocate there.” The AIT took the view that these terms of remission and its remits in the other two appeals prevented them from embarking on “larger issues”. They went on

Mr Waite’s fourth ground of appeal is that the decision to give the determination country guidance status was irrational, since the AIT had decided that the terms of the consensual remission precluded them from looking at the distribution of Ahmadis elsewhere in Pakistan, a question, Mr Waite submits, “pivotal in assessing the relative safety of Rabwah”. His fifth ground, however, is that the order for remission carried no such inhibition. Put in perhaps more logical order, the argument is that there was nothing to prevent the tribunal considering the demographic distribution of Ahmadis, but that if they were not going to do so their determination should not have been accorded country guidance status.

The reason why it is submitted that the determination could not both ignore the distribution of Ahmadis in Pakistan and at the same time be accorded country guidance status is said to be that it is only possible to gauge the relative safety of Rabwah if you know the extent of risk in the rest of the country. For reasons to which we are about to come, we do not have to decide this question, but we do not necessarily accept Mr Waite’s submission. The starting-point of an internal relocation argument is not that the rest of the country is unsafe but that the appellant personally has good reason to fear persecution if returned to where he or she came from. Such a fear does not have to have a stochastic basis: it may well arise from a single and unrepeatable set of facts. If the consequent fear of persecution is so far well-founded, the fact-finder must ask whether there is in the home country a place (a) of sufficient – not absolute – safety to which (b) the appellant can move without undue hardship. The legal effect of a finding that there is such a place is to take away the objective, and possibly also the subjective, foundation of the fear.

The decision of the House of Lords in Januzi [2006] UKHL 6 relates principally to question (b), while the present case relates to question (a). It may also be noted that, despite having secured two adjournments and been refused a third, the Home Office in the present case did not seek to adduce any evidence about the relative safety of Ahmadis elsewhere in Pakistan.

When in §26 (see below) the tribunal find that “the evidence does not suggest … that Rabwah is safer than anywhere else” they are, with respect, adopting what is arguably the same relativist fallacy as the Home Secretary. The comparison is not between two places, each more or less safe or unsafe. It is between the appellant’s well-founded fear, whatever its source, and the possibility of living free from that fear somewhere else in the same country. So, for example, an individual may be found to have experienced persecution, and to have good reason to fear its recurrence, in an area otherwise known to be quite safe. If they are able to relocate to a place which, albeit not in general so safe, affords them reasonable protection from any recurrence of the particular persecution, their fear of it will no longer be well-founded. If not, then the fact that their persecution was a unique event does nothing to diminish their claim to international protection. As the tribunal themselves say at the end of §19, “the question for an individual is whether he is at risk, not whether everybody is at risk”. In this light we do not need to address Mr Waite’s critique of the AIT’s methodology for omitting to factor in the much greater proportion of Ahmadis in Rabwah than elsewhere.

So the real issue is whether the AIT’s reasoning about the general safety of Ahmadis in Rabwah stands up. It is necessary first to set it out in full.

As Mr Cooray points out, the most radical departure in these findings is the reversal of the assumption – relayed from case to case as fact – that Rabwah is largely or significantly governed by Ahmadis. With that assumption goes any supposition or inference that Ahmadi rather than Sunni control is exercised over the police or other civic authorities. But, as Mr Cooray also accepts, it does not mean that no Ahmadi is safe in Rabwah.

The first problem in this light is with the headnote which forms part of the promulgated decision. It reads:

There is at best an ambiguity and at worst an error in the phrase “a safe haven for any Ahmadi”. What the tribunal goes on to hold, and what is evidently meant here, is that Rabwah does not necessarily constitute a safe haven for every Ahmadi. Counsel agree, as we do, that the headnote should be so read.

This addresses the Home Secretary’s first concern but not her second one. This is that the substance of the determination, particularly in the passage we have highlighted in §25, either holds or comes closer than the evidence will bear to holding that it is only exceptionally that an Ahmadi who is fleeing persecution can be safe in Rabwah.

We accept that, read alone, the passage could be so construed. But it has to be read as part of the process of reasoning which culminates in §28, which we have also highlighted. That reasoning, as we understand it, proceeds by the following steps:

It is not necessarily the case that an Ahmadi who reasonably fears persecution elsewhere in Pakistan can safely relocate to Rabwah.

An Ahmadi who does move to Rabwah may not be able to remain there for long; and for those who are able to remain in Rabwah, safety is not assured because local power is not in Ahmadi hands and the KN is at least as active in Rabwah as elsewhere.

But this does not mean that no Ahmadi can be reasonably safe in Rabwah. As in the rest of Pakistan, the incidence of harm to Ahmadis there is not high.

What matters therefore is the particular risk faced by the individual Ahmadi and the reasons for it.

It follows that, for those who can establish a well-founded fear of persecution elsewhere in Pakistan, Rabwah is not to be assumed to be either generically safe or generically unsafe. The issue must be determined case by case.

This determination was promulgated on 17 October 2007. Later that year another division of the AIT chaired by SIJ Gleeson, who was a party to the present decision, in MJ and ZM (Ahmadis – risk) (Pakistan) [2008] UKAIT 00033 were able to deal with two further Ahmadi asylum cases on the basis of the present determination without adopting the wide premise anticipated by the Home Secretary. Since Mr Cooray tells us that a renewed application for permission to appeal against the determination may be pending, we limit what we say about the case; but we observe that, having recited the headnote of IA, the AIT directed themselves (§5):

The Home Secretary is less concerned to reverse these particular decisions than to ensure that the AIT’s reasoning does not foreclose findings in other cases that a persecuted Ahmadi can be reasonably safe in Rabwah.

Mr Waite suggests that one way of making this clear would be to remove the determination’s country guidance status. We do not agree. Unless the determination keeps this status it may not have the intended effect of undoing earlier country guidance which is agreed on all hands to have had a faulty factual basis.

Failing this, Mr Waite invites us to remit the appeals to be decided by a freshly constituted tribunal. For reasons we have given we do not consider that this is necessary. The determination, fairly read, does not have the meaning, and will not have the effect, which the Home Secretary fears it will have. This appeal has been valuable in enabling the court to clarify the AIT’s reasoning and clear up an error in their headnote. This done, the determination can stand.

The appeal will accordingly be dismissed.