Yameen, R (on the application of) v Secretary of State for the Home Department

This is a claim for judicial review of the refusal by the Secretary of State for the Home Department to treat a series of further representations made on behalf of the Claimant as a fresh claim under paragraph 353 of the Immigration Rules.

The Claimant is a Pakistani national who was born on November 15th 1968. He is an Ahmadi Muslim. On May 16^th 2008 he was granted a multiple-entry visa to the United Kingdom expiring on March 16^th 2013. When he re-entered the United Kingdom on July 13^th 2010 using this visa, he claimed asylum. That claim was rejected by the Secretary of State on August 6^th 2010.

the Claimant’s claim for asylum

The Claimant’s appeal from the Secretary of State’s decision was on the basis that he was a refugee; that he was entitled to humanitarian protection; and that returning him to Pakistan would be incompatible with article 3 of the ECHR.

The Claimant said that he was a victim of an attack by terrorists on the Ahmadiyya Mosque in Bait ul Noor, Lahore, on May 28^th 2010. He claimed to have been in the mosque, sitting in the front row in the main hall, when the terrorists attacked. He said that he had received a shrapnel wound under his right eye from a hand grenade thrown into the hall and that, subsequently, after a terrorist had entered the mosque, he had been shot in the leg just above his right ankle.

The Claimant claimed that, having received these wounds, he had nonetheless played a pivotal role in catching one of the two terrorists involved in the attack on the mosque. He said that, having been shot in the leg, he managed to move to the “Mehrab” having jumped over an injured person lying in front of him. There he saw an individual lying on the floor in the main hall, with a boy sitting on top of him and with an elderly man hitting him over the head with a walking stick. Having been told by the boy, Nabeel, that the individual was one of the terrorists, he saw that his legs were free so he went over to the terrorist and tied his legs together with a tie that belonged to another injured person lying there.

The Claimant said that he was then taken to the Jinnah Hospital in Lahore and that he was filmed and interviewed on television while there. He claimed that he had described to APNA TV how he had tied one of the terrorists up and had handed him over to the police. He also told the Secretary of State that he had been asked what his name was; that he had said it was Yameen; and that he had been identified by that name when the news was read as the man who captured the terrorist. He claimed that, because he had been told the terrorists would attack the hospital, he then discharged himself from the hospital, where his sister worked, later that evening. On May 30^th 2010 the hospital was itself attacked by terrorists.

After the incident on May 28^th 2010 the Claimant said that he could not continue his normal life. He claimed that he had returned once to his place of work after this incident; that slogans written against Ahmadis had by then been put on the wall; that no one was willing even to say hello to him; and that some of the people called him a Kafir and said that he must be put to death. Because he had been identified as belonging to Ahmadiyya Jamaat as a result of the television interview he claimed that his life would not be safe anywhere in Pakistan from extremists and that the State would assist them rather than protect him. He claimed that since he had left his wife and child had been in hiding moving from place to place.

the Tribunal’s decision

The Claimant was represented on his appeal to the First-tier Tribunal (Immigration and Asylum Chamber) by his solicitor. The Claimant gave evidence. There was also evidence contained within two large ring binders of documents, much of it objective related to his claimed fear.

His appeal was dismissed by the First-tier Tribunal on September 22^nd 2010. It found that the Claimant’s evidence did not stand up and that his asylum claim was evidently false.

The Tribunal found that the Claimant’s leg had indeed been wounded on some occasion but it was certain that he had not received that wound as he claimed he had done. It considered that he could not have embarked on the physical manoeuvres in the mosque, which he had described, after receiving the wound he claimed to have suffered there and that a document purporting to come from the hospital recording his recommended treatment was inconsistent with that wound having been inflicted on that occasion. The Tribunal further found that the photographs that the Claimant relied on, which he said showed him in the mosque and in the hospital, were mutually inconsistent; that they were inconsistent with a laceration below the right eye of 3cm by 0.7 cm; and that they had been taken to support his claim and did not record him in the mosque on May 28^th 2010. The Tribunal considered that, whatever the provenance of the hospital record which the Claimant had produced, it could be discounted as a genuine record of his admission on May 28th 2010. Because it was not satisfied that the Claimant had been in the mosque or the Jinnah hospital on May 28th 2010, the Tribunal found that it was satisfied that the report and interview on the television news, which the Claimant said had put him at risk, had not taken place.

The Tribunal also found, however, that, even if the Claimant’s story had been accepted as true, it could not be satisfied that he was at risk on return to Pakistan, as, on the Claimant’s own evidence, nothing had happened to him there after the attack on the mosque, save that he received “some unfriendliness from his fellow employees at work”. The Claimant had told the Tribunal that slogans had been written against Ahmadis on the wall in the factory after the incident and some of the people had called him a Kafir/non-Muslim and said he must be put to death. If the Claimant had been on television (as he had claimed) then those non-Ahmadis who knew him could have found him at his house without difficulty (but there was no suggestion that they had), and he had not received any threats by any terrorist organisation, before he claimed asylum in this country.

The Tribunal was also not satisfied that his wife and child in Pakistan were in hiding. It thought there was no evidence that the Claimant and his wife were more than ordinary Ahmadi faith members. In its view he did not fall into any exceptional category which might place him at risk on return to Pakistan.

The Tribunal concluded that the Claimant wanted to relocate his family to this country where they could enjoy a far better standard of living than they had in Pakistan and that he had used the incident in the mosque as a basis for a false claim very shortly after other members of his family had been refused visit visas in April 2010.

Both the First-tier Tribunal and the Upper Tribunal refused the Claimant permission to appeal. The Upper Tribunal refused permission on December 20^th 2010.

Further representations and the claim for judicial review

On January 10^th 2011 the Claimant was detained and directions set for his removal on January 14^th 2011.

The Claimant made further representations on January 10^th, 11^th, 12^th and 13^th 2011, all of which the Secretary of State refused to treat as amounting to a fresh claim in various decisions. This claim for judicial review was then issued on January 13^th 2011.

After the Claimant refused to board a flight to Pakistan on January 14^th 2011, removal directions were reset for January 19^th 2011. On January 18^th 2011, however, Holman J granted an injunction to restrain the Secretary of State from removing the Claimant until after the question whether he should be given permission to claim judicial review had been considered.

Meanwhile the Claimant made further representations on January 17^th and January 28^th 2011 which led to a further decision by the Secretary of State on February 4^th 2011 when the Secretary of State also filed her Acknowledgement of Service.

Further representations on behalf of the Claimant were made on February 9^th, 11^th and 16^th 2011. The Treasury Solicitor responded to these on February 18^th 2011.

On February 23^rd 2011 the Claimant replied to the Defendant’s Acknowledgement of Service and set out further grounds for judicial review.

These led to a further decision by the Secretary of State dated March 11^th 2011. Further grounds for making a claim for judicial review were filed dated March 15^th 2011 to which the Secretary of State responded.

Permission to bring this claim was refused on the papers by Mr David Elvin QC on March 18^th 2011. He did not find persuasive what he regarded as the constant drip feeding of further representations in an attempt to overcome the Tribunal’s fundamental findings made only five months previously; that what the Claimant had sought to do was to put together, ex post facto, evidence to make good the issues he had failed to establish before the Tribunal; and that he had provided no convincing explanation of why this material could not have been added at the time to the evidence before the Tribunal.

That did not stop the making of further representations by the Claimant on March 28^th 2011 leading to a further decision by the Secretary of State dated April 1^st 2011.

The Claimant then filed further grounds for judicial review dated April 4^th 2011 to which the Secretary of State replied on April 6^th 2011.

On April 20^th 2011 Kenneth Parker J refused the Claimant’s application for an injunction to stay his removal from the United Kingdom pending the hearing of his renewed application for permission. He noted that the “drip feed” of representations had continued unabated. After that observation it appears that the making of further representations ceased.

On May 17^th 2011 Silber J granted the Claimant permission on his renewed application.

the grounds upon which this claim is now made

By the time Silber J considered the renewed application it would have been difficult to identify on what the claim then focussed from the papers. No doubt for that reason he also ordered the Claimant to file a skeleton argument within 14 days “setting out his case concisely clearly and comprehensively with precise references to every document relied upon”. The evident intention of this order was that there should be a single, concise, properly-referenced statement of the grounds upon which the Claimant relied.

The Claimant’s skeleton argument prepared by Ms Phelan unhelpfully started simply by stating that “the claimant relies on all his grounds”, referring to four sets of grounds, some 60 pages in all, scattered throughout the trial bundle. No attempt was made to link those grounds to specific passages in the trial bundle, which runs to over 1,000 pages. The skeleton argument itself appeared to be largely a reading list with some legal submissions, although it gave what were said to be some illustrations of where the Secretary of State erred. What it did not itself contain was a concise, clear and comprehensive identification of the specific errors alleged to have been made by the Secretary of State and relied on by the Claimant.

Having ascertained that that was the case, I accordingly invited Ms Phelan to provide a schedule identifying in respect of each such error relied on the specific material submitted by the Claimant to which it related, the consideration given by the Secretary of State to it and the reason or reasons why that consideration was said to be flawed. I also asked for the schedule to be arranged, where practicable, grouping any errors relied on by reference to the topic to which they related.

At the outset of the hearing at 2pm on Thursday July 14^th 2011, Ms Phelan handed in what she said was an incomplete schedule. When the hearing was adjourned that afternoon, I directed her to file and serve a completed schedule on Monday July 17^th 2011. The schedule then filed was substantially different from that initially filed.

Some points that had been raised in the Claimant’s grounds were not pursued in the schedules and some points appeared in the schedules that were not in the grounds. Dr Christopher Staker, who appeared on behalf of the Secretary of State, did not object to my considering the points raised in the final schedule. That I propose to do. This schedule consisted essentially of (a) a list of statements apparently made by 16 individuals (which it is alleged the Secretary of State erred when considering in various ways); (b) two documents which it is said the Secretary of State erred when addressing; (c) certain general errors made by the Secretary of State in relation to the Claimant’s role in the community in Pakistan; and (d) certain errors made by her in her approach to statements by the Admadi Muslim Association, to the risk of persecution to which he is said to be subject and to the cumulative effect of the totality of the evidence.

There is one further matter. On the first day of the hearing Ms Phelan accepted that the claim depended on whether or not the new material submitted might lead an immigration judge to take a different view about the credibility of the Claimant’s account of why he had left Pakistan. However she subsequently sought to rely on two contentions, which were not dependent on that question, but which had been raised in the Claimant’s grounds. One, not mentioned in either schedule, concerned how the Secretary of State had dealt with the Claimant’s contention that he will not be able to express his religious views and propagate his faith openly in Pakistan by reason of the persecution that he would suffer if he did so and that accordingly it would be incompatible with his rights to return him there. The other point concerned the contention that the standing of the Claimant and of his wife in the Ahmadi community in Pakistan and as professionals would be sufficient in any event to draw the adverse attention of the mullahs to them.

Paragraph 353 of the Immigration Rules provides that:

“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i)

had not already been considered; and

(ii)

taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

The task of the decision maker under paragraph 353 is potentially two-fold: (i) she must first consider the further submissions and decide whether they should be accepted or rejected; and (ii), if rejected, she must determine whether they amount to a fresh claim.

To amount to a fresh claim, any representations must first be significantly different from the content of the material previously considered. Ms Phelan submitted that it was not sufficient to say that any representations fail to pass this threshold merely because the material they contain has previously has been submitted; its content must have been considered. That I accept. If the Secretary of State or a Tribunal had refused to consider the content of some document for some reason, then that might enable the first threshold to be passed. But the mere fact that a decision maker does not refer to something which has been submitted does not of itself necessarily mean that it has not been considered.

Dr Staker emphasised that the opportunity to make fresh representations was not an opportunity to advance again the very claim that has been rejected. The remedy for any error in an initial decision to a decision maker lies in an appeal. That I again accept. But I do not accept that any conclusions based on such material as was then available may not be revisited. New material may contain something that casts new light on the content of the material already considered and may thus create a realistic prospect of a successful appeal, notwithstanding the earlier rejection of the claim based on the material then available.

In substance, therefore, any further representations whose content has not already been considered will amount to a fresh claim (thereby giving the individual concerned a right to appeal against their rejection) if, but only if, when taken together with the content of material previously considered, they create a realistic prospect of success before the Tribunal (notwithstanding the Secretary of State has rejected them). A realistic prospect of success is one that is not merely fanciful: see eg R (TK) v Home Secretary [2009] EWCA Civ 1550 at [11]; R (AK (Sri Lanka)) v Home Secretary [2009] EWCA Civ 447 at [34]. As Buxton LJ said in WM (DRC) v Home Secretary [2006] EWCA Civ 1495 at [7], that is “a somewhat modest test”. That is no doubt because, if the test is failed, any appeal from the Secretary of State’s decision is excluded. The Secretary of State has herself to give anxious scrutiny to the further representations when answering the relevant question.

Where the claim relates to ill treatment to which an individual may be exposed on return to his country of nationality, the Tribunal has to consider giving the matter anxious scrutiny whether there is a real risk of his suffering such ill treatment on return. Accordingly the question for the Secretary of State in such a case is whether, when taken together with the content of the material previously considered, the further representations create a realistic prospect of persuading a Tribunal, which itself gives the matter anxious scrutiny, that there is a real risk of his suffering such ill treatment on return to his country of nationality. As Buxton LJ further stated in WM (DRC) v Home Secretary supra at [6], determining that question “will involve judging not only the reliability of the new material, but also judging the outcome of the tribunal proceedings based on that material”.

Ms Phelan submitted that the onus would be on the Secretary of State to show in the Tribunal that a document was not genuine to a high civil standard of proof. Generally, however, in my judgment, it is for the individual to show a document is reliable. The onus will be on the Secretary of State only when it is necessary to show that what would otherwise be treated as a reliable document is a forgery: see Tanveer Ahmed [2002] UKAIT 439 at [30], [32]-[34], [38]; R (Asif Naseer) v Home Secretary [2006] EWHC 1671 (Admin) at [22]-[24].

Ms Phelan also submitted that the Secretary of State had failed to distinguish between what was and what was not intrinsically incredible or incapable of belief. In my judgment it is not necessary for the Secretary of State to be able to conclude that something is itself incredible or incapable of belief for her to be entitled to conclude that there is no realistic prospect that a Tribunal would treat it as reliable. Whether a Tribunal could reasonably treat something as reliable is to be answered in the context of the evidence as a whole and in that connection it may be important to consider what evidence there is which explains how any document came into existence or any statement came to be made and which supports its reliability: see R (Asif Naseer) v Home Secretary supra at [37]-[40].

Even if new representations are based wholly or in part on material that is reliable or, at least, on that which an Immigration Judge might realistically treat as reliable, however, that does not necessarily mean that they will amount to a fresh claim. The Secretary of State still has to make a judgment about whether there is a realistic prospect of a successful outcome in the Tribunal proceedings based on such material giving it anxious scrutiny. As Carnwath LJ stated in R (YH) v Home Secretary [2010] EWCA Civ 116 at [24],

“the expression [anxious scrutiny] in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind: indeed, one which might be thought an “axiomatic” part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however,....that there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies.”

On a claim for judicial review the task of the Court is to ascertain whether the Secretary of State has asked herself the correct question and, if she has, to determine whether her decision is one which a reasonable person could reach giving the matter anxious scrutiny. Whether the material submitted amounts to a fresh claim is not a question which it is for the Court to determine for itself on the merits: see WM (DRC) v Home Secretary supra at [8]-[11]; R (MN Tanzania) v Home Secretary [2011] EWCA Civ 193 at [15].

However, precisely because the function of the Court on judicial review is one of review, if the Claimant can show that the Secretary of State has erred in law, for example by reaching a conclusion on a specific matter which no reasonable person could reach in the circumstances, then the Secretary of State’s decision is liable to be quashed unless the same decision would have been reached regardless of any such error.

In that respect it is right to note that the Secretary of State accepts that on occasion errors were made in letters sent on her behalf in this case. For example it was stated in one letter that the Claimant had contended that he had tied the hands of the terrorist together in the mosque. Throughout his claim has in fact been that he tied the terrorist’s feet together. That mistake, as the Secretary of State subsequently and correctly pointed out, of itself made no real difference to her reasoning on the particular point in issue. This and other errors made may raise doubts about the care with which the extensive further representations made were considered on occasion. It is self-evident that those charged with making decisions on behalf of the Secretary of State in cases such as this have to work under considerable pressure and they may be faced (as in this case) with voluminous, and sometimes repetitive, further representations. Mistakes may be understandable. But, given the consequences which mistakes may have in this type of case, they cannot be assumed, and they should not readily be judged, to be immaterial.

As will be apparent from the history of the further representations in this case, there is not a single decision letter that sets out comprehensively the Secretary of State’s views on all the representations received since the Tribunal’s decision. This does not in itself indicate any failure on the part of the Secretary of State to consider the material submitted to her. It is simply a function of the manner in which these representations have been submitted.

The Secretary of State’s general conclusion as stated in the letter dated April 1st 2011 was that she considered that the Claimant’s

“asylum claim would now have less prospect of success before a further immigration judge than before due to the mounting list of discrepancies, inadequate explanations and serious errors contained within his evidence submitted following his appeal hearing. Having given anxious scrutiny to the issues and considered the evidence in the round it is considered that there is no realistic prospect that [the Claimant’s] submissions when taken together with all the previously considered material, create a realistic prospect of an Immigration Judge deciding that your client should be allowed to stay in the United Kingdom.”

In my judgment it is clear that the Secretary of State repeatedly asked herself the correct question and said that she was applying anxious scrutiny to the matters raised. The main substantive issue in this case is thus whether her decisions that the further representations received did not create a realistic prospect of a successful appeal to the Tribunal were ones which a reasonable person could reach giving the matter anxious scrutiny.

As Dr Staker emphasised, the Tribunal found at paragraph [66] of its decision that it could not accept that the Claimant was at any risk on return to Pakistan, even if his story about what had happened to him there before leaving was true: see paragraphs [7] and [11] above. Dr Staker submitted that, unless the Claimant’s further representations created a realistic prospect of persuading another Tribunal to depart from this finding, there was no realistic prospect of any appeal by him succeeding.

On behalf of the Claimant Ms Phelan contended in effect that there were three reasons put to the Secretary of State why a Tribunal might depart from this earlier finding which she had erred in rejecting. These were: (i) that there was further evidence on the risk to which he would be subject as a person who helped catch a terrorist; (ii) that it would be incompatible with the Claimant’s rights to return him to Pakistan in any event as he will not be able to express his religious views and propagate his faith openly by reason of the persecution that he would suffer if he did so; and (iii) that his and his wife’s standing as Ahmadis and as professionals was again in any event of itself sufficient to draw the adverse attention of the mullahs to them.

the threat from the Claimant’s identification as a person who helped capture a terrorist in consequence of the television broadcasts

In relation to the events after the attack in the mosque Ms Phelan relied on two statements.

The first was apparently made by Mr Kashif Mohamed, a production manager at the place where the Claimant worked. He states that there was “aggressive behaviour” against the Claimant when he returned to work; that “anti-Ahmadiyya slogans were written on the walls of the factory due to the disclosure of” the Claimant’s faith; and that he had heard “extremist workers” saying that the Claimant was a Kafir and must be put to death. Whatever the Secretary of State may have made of Mr Kashif Mohamed’s statement more generally, this part of it, taken at its highest, merely corroborated the Claimant’s own account of what had happened to him on his return to his place of work. It did not add anything of substance to the account which the Claimant had given to the Tribunal which could realistically lead an Immigration Judge to a different conclusion.

The second statement Ms Phelan relied upon was one from the Claimant’s wife, Dr Shamim Akhtar, made on January 12^th 2011.

In relation to the period before the Claimant left Pakistan this statement simply says that “there was now open hatred towards him which became unbearable. It came to the point when he was unable to cope any longer and [he] left for the United Kingdom.” Quite apart from its lack of detail, this adds nothing in substance to the Claimant’s own account of what had happened to him before he left Pakistan.

Dr Akhtar’s statement also gives an account, however, of what she says happened to her and their son after her husband left Pakistan. She claims that she and her son have been constantly moving between various addresses (including her parent’s, sister’s and uncle’s houses) to ensure their survival; that she went to her old home on December 15^th 2010 where she saw anti-Ahmadi posters on the main gate; that she and her son have both been verbally and physically abused by people who consider them non-Muslims; that “many people have come looking for my husband” and that “extremists” are looking for him; that on December 4^th and 12^th 2010 they were stopped on the way to the dentist by men wanting to know where her husband was, threatening them, and on the second occasion saying they knew where she was and how to find her; that she noticed a car following them on December 18^th and 26^th 2010; that she had taken their son away from school until the start of 2011 but shortly after his return to school, on January 5^th 2011, her car was stopped and many people with beards tried to grasp her son unsuccessfully.

It should be noted that, at the hearing before the Tribunal in September 2010, the Claimant had asserted that his family had been shifting from place to place to save their lives and that they had had no problems as they had not been found. He explained that he had been in touch with his wife the day before the hearing at his mother in law’s house and that she had been there for ten days. When pressed he had to accept that he had told someone that his wife was there before that as she had told him she was there. The Tribunal rejected the assertion that the Claimant’s family was moving from one address to another in Pakistan. It found that he was in regular contact with her. It may also be noted that, when he was interviewed on January 10^th 2011, the Claimant said that he took medication sent to him from Pakistan by his wife.

Dr Akhtar’s statement was made on January 12^th 2011, two days after the Claimant had been detained and removal directions set. The Secretary of State in the letter dated January 13^th 2011 found the late arrival of Dr Akhtar’s statement perplexing as the Claimant could have sought a statement from her at any stage as he had clearly been aware of her whereabouts. She also found the statement incredible for a number of reasons, including her view that, should the risk be as great to Dr Akhtar and their son as it was claimed, it was not considered credible that those involved would be satisfied with simply making threats and that there was no explanation why the Claimant had not raised any threats to his son in December much earlier. The Secretary of State concluded that the claims made in Dr Akhtar’s statement were not genuine.

The Secretary of State’s consideration of this statement was not impugned in any of the four sets of grounds upon which this claim was made. Ms Phelan did seek to do so, however, in her schedule. She claimed that the Secretary of State’s consideration of it was flawed on the ground (i) that, although the statement was made on January 12^th 2011, the latest incident it recounted was on January 5^th 2011; (ii) that Dr Akhtar’s evidence was consistent with the objective evidence; and (iii) that there was no requirement that Dr Akhtar and her son should actually be harmed or killed.

In my judgment none of these three points establishes a legal error in the Secretary of State’s consideration of this statement. (i) Her concern about the late arrival of this statement was not focussed simply on the period after January 5^th 2011. (ii) Ms Phelan did not identify any objective evidence the Secretary of State had that supported the particular claims made by Dr Akhtar about the particular incidents she had recounted. But in any event (iii) the Secretary of State did not say that there was any requirement for Dr Akhtar and her son to be killed or harmed. What she found incredible was that those making the threats would be satisfied merely with making them if the risk was as had been claimed.

Ms Phelan accepted, however, that, if this statement was all the Secretary of State had had to go on, then she would probably be able to say, given its source, that it did not create a realistic prospect of success before a Tribunal. The specific allegations in it, however, were not corroborated by anything other than by the Claimant’s own statement on January 13^th 2011 in which he stated that his wife resided at her parent’s house, although he also said they were shifting from one place to another. The Claimant said he had “been told that my wife has experienced many problems since my departure and that there were a number of very worrying incidents even one as recently as last week when mullahs tried to grab my child”. He did not identify who had told him but said that he understood that she was giving a separate statement to his solicitor by e-mail, fax and phone. The Claimant’s own statement can scarcely be regarded as doing more than repeating what his wife may have told him.

In my judgment it cannot be said that the Secretary of State was not entitled to conclude in all the circumstances that the claims made in Dr Akhtar’s statement were not genuine and that they did not themselves create a realistic prospect of a successful appeal to the Tribunal.

I note that the Claimant also submitted a report by Mr Lionel Blackman, the Chairman of the Solicitor’s International Human Rights Group and a member of the Parliamentary Human Rights Group Mission to Pakistan to examine the Human Rights Situation of the Ahmadiyya Community in February 2010. He took the view that the Claimant’s case turned on whether he had been exposed as an Amadiyya who had intervened and assisted the detention of one of the terrorists. If he was, then in his view his life and that of his family was at a high risk of violent retribution at the hands of the extremists: such action would place him at the highest end of risk within the Amadiyya Community.

In responding to Mr Blackman’s report, the Secretary of State pointed out (at paragraph [50] of the letter dated February 1st 2011) that the premise had not been established but that:

“The Secretary of State denies that [the Claimant] is widely known as an Ahmadi in Pakistan as he resided for nearly two months in Pakistan after the attack on 28 May 2010, and furthermore his family continue to remain at [the Claimant’s] wife’s mother’s house in Pakistan and have remained there since July 2010 without suffering any serious harm or attention from the terrorists.”

The points made by the Secretary of State echo the Tribunal’s finding that, if the television broadcasts identifying the Claimant as one of those Ahmadis who captured one of the terrorists had occurred and had generated any determination to harm him on the part of the terrorists (or those living near him), then the Claimant would have been the subject of an attack before he left (which he had not been on his own account). They also echo the Tribunal’s rejection of the Claimant’s account that the Claimant’s wife had been moving from place to place and the Secretary of State’s subsequent rejection of her statement on that matter as genuine.

In her schedule Ms Phelan did not identify any error on the part of the Secretary of State when dealing with Mr Blackman’s report. The question whether an individual having the notoriety which the Claimant asserted he had as a result of his identification as an Ahmadi who had helped capture a terrorist would be exposed to a real risk of relevant ill-treatment in Pakistan was one the Tribunal had addressed and it had answered it in the Claimant’s case by reference to what happened to him thereafter in Pakistan. The fact that Mr Blackman would have answered this question differently from the Tribunal does not of itself mean that the Secretary of State was bound to treat his views on this point as giving rise to a fresh claim, particularly when Mr Blackman did not consider the significance of what had not happened to the Claimant after the alleged television interview before he left Pakistan on which the Tribunal had relied. In such circumstances it cannot be said to be irrational for the Secretary of State to rely in effect on what the Tribunal had itself found.

the risk if the Claimant propagates his faith in Pakistan

Amid the further representations made to the Secretary of State, it was asserted (relying on the approach set out in HJ (Iran) and HT (Cameroon) v Home Secretary [2010] UKSC 31) that the Claimant will not be able to express his religious views and propagate his faith openly in Pakistan by reason of the persecution that he would suffer if he did so and that accordingly it would be incompatible with his rights to return him there.

In Home Secretary v Iftikhar Ahmed [2000] INLR 1 the Court of Appeal considered the case of an Ahmadi who had claimed asylum on the ground that, if returned to Pakistan, he would be liable to persecution if he propagated his beliefs. Simon Brown LJ (as he then was) stated that:

“the Ahmadis have been in long-standing dispute with mainstream Sunni Islam on the question of religious authority. The majority of Islam regards Mohammed as the last prophet: the Ahmadis claim to have received divine revelation since. Professor Friedmann records that:

“One of the essential differences between [the Ahmadis] and other contemporary Muslim movements is that the Ahmadis consider the peaceful propagation of their version of Islam among Muslims and non-Muslims alike to be an indispensable activity; in this they are persistent and unrelenting.”

On 26th April 1984 the President of Pakistan published an Ordinance, No XX of 1984, imposing severe curbs on the practice of the Ahmadi religion. The most important prohibition reads as follows:

“Any person of the Quadiani group or the Lahori group (who call themselves Ahmadis or by any other name), who, directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith by words, either spoken or written, or by visible representations, or in any manner whatsoever, outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which extends to three years and shall also be liable to fine.”

A further paragraph prohibits the sect from using any title or form of address appropriate to the Muslim religion in any part of its hierarchy. The decree was obviously directed to preventing the sect either practising the Muslim religion, calling themselves Muslim, or seeking converts on the basis that they were themselves Muslims.”

In that case the claimant had asserted that, if returned to Pakistan, he would behave again in the way he had previously done and that it would attract the violent hostility of those among whom he lived and that the authorities would not protect him but would in all likelihood only prosecute him under the Ordinance. The Immigration Appeal Tribunal had found that he could safely relocate in Pakistan if he exercised some discretion in propagating his faith, making allowances for the situation in Pakistan and for the sensitivities of others. The Court of Appeal allowed his appeal on the basis that the Tribunal had erred: the question was not whether the claimant would be safe if he acted reasonably; it was whether he would be safe if he acted as it was plain he would act, however unreasonably.

In HJ (Iran) v Home Secretary supra the Supreme Court considered the decision in Home Secretary v Iftikhar Ahmed supra. As Lord Rodger and Dyson JSC pointed out at [57] and [126], Simon Brown LJ had not addressed in that case the question whether an asylum seeker would have a well-founded fear of persecution if on his return he would act “discreetly” in order to avoid the persecution that he would suffer if he lived “openly”. In the case of two homosexuals at risk of persecution if they lived “openly” as such in their country of nationality, the Supreme Court held that they would be entitled to asylum if they would live “discreetly” there in order to avoid it. Those who have to suppress their political opinions in their country of nationality in order to avoid persecution may also be entitled to asylum: see RT (Zimbabwe) and others v Home Secretary [2010] EWCA Civ 1285.

The decision in HJ (Iran) does not of course mean that the punishment of any form of sexual behaviour, or of any manner of expressing religious or other opinions, necessarily involves persecution. Indeed article 18.3 of the International Covenant on Civil and Political Rights (which echoes article 9.2 of the ECHR) envisages circumstances when the freedom to manifest one’s religion may be subject to limitations. But, for present purposes, what is significant is that the Supreme Court regarded the question of whether an individual is entitled to asylum on this basis as involving an individual and fact-specific enquiry.

Adapting what the Supreme Court said to an individual claiming asylum on the basis that he would be persecuted if he freely propagated his own religious beliefs, a tribunal would need to consider (i) whether that individual holds the beliefs in question; if so, (ii) whether it is satisfied on the available evidence that an individual who freely propagated such beliefs in the claimant’s country of nationality may be liable to persecution; and, if so, (iii) what the claimant would do if he was returned to that country. (a) If the claimant would in fact freely propagate his religious beliefs and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution, even if he could avoid that risk by propagating such beliefs more discreetly. Moreover, (b) if the claimant would choose not to propagate his beliefs or if he would do so “discreetly” (thus avoiding the risk of persecution), the tribunal will need to consider why he would do so. The claimant will only have a well-founded fear of persecution if a material reason for his not propagating his beliefs or for doing so “discreetly” on his return would be a fear of persecution which would follow if he were to propagate them freely: see per Lord Rodger JSC at [82], Lord Hope JSC at [35], Lord Walker JSC at [98], Lord Collins JSC at [100], and Dyson SJC at [132]. Depending on the facts of any case, there may also be further questions to be considered if protection is nonetheless available in a claimant’s country of nationality given internal relocation.

A claim based on the approach set out in HJ (Iran) was not one apparently advanced by the Claimant on his appeal to the First-tier Tribunal. In the grounds seeking permission to appeal from that decision to the Upper Tribunal, however, it was argued that the First-tier Tribunal had erred in not considering a claim based on HJ (Iran). When refusing permission to appeal, the Upper Tribunal stated that

“there is no substance to the HJ point. The [claimant] does not claim to have experienced particular problems as an Ahmadi in Pakistan otherwise than in respect to the claimed incident and his claim was based on that incident and not on being an Ahmadi per se.”

Representations based on the approach set out in HJ (Iran) were subsequently made on the Claimant’s behalf in a letter dated January 13th 2011 from his solicitors. They pointed out that hitherto the Claimant had practised his faith quietly but that he believed that an important part of his faith was to spread his beliefs; they accepted that he had never claimed to have preached; but they claimed that the only reason the Claimant had not been able to comply with this fundamental tenet of his faith was the wrath of the fundamentalists and the risk of death on conviction under the laws of blasphemy, which it was said the Claimant feared the most.

In his initial Grounds dated January 14^th 2011the Claimant contended that the Secretary of State had failed to consider his case in the light of HJ (Iran). The Secretary of State noted in her letter dated February 4th 2011 that the Claimant had adduced no credible account of instances in which he had been unable to practise his faith in Pakistan and that there remained many Ahmadi followers there who continue to follow the Ahmadi faith.

In her Acknowledgement of Service the Secretary of State made plain, however, that she had not relied on any assertion that the Claimant should hide his faith and contended that it would not be necessary for him to hide his faith on return. She supported that contention by reference to the country guidance case, MJ & ZM (Ahmadis - Risk) Pakistan [2008] UKAIT 33, in which it had been found by the Tribunal (in the last sentence of paragraph [84]) that the general level of risk on return to Pakistan for Ahmadis who propagate the Ahmadi faith falls well below the level necessary to show a real risk of persecution, serious harm or ill-treatment and thus to engage any form of international protection.

This response was not subsequently challenged in the subsequent representations and further grounds put forward on the Claimant’s behalf. However at the hearing of this claim (as I have already mentioned) Ms Phelan sought to do so.

The substantive issue (assuming that the guidance in MJ & ZM otherwise remains valid) is whether the sentence in the judgment in that case relied on by the Secretary of State reflects what Ahmadis generally do when propagating their faith because, if they did more, they would be at risk of persecution. If it does, then it may reflect the position of Ahmadis who propagate their faith “discreetly” and that in the circumstances in Pakistan that is how they behave. But it would not necessarily provide an answer to a case based on the approach in HJ (Iran) which would involve a more specific, fact-based inquiry into what the particular claimant would do on return, why he would do it and how well-founded any fears influencing his behaviour are.

On behalf of the Secretary of State Dr Staker submitted that the passage on which the Secretary of State relied does effectively represent what the Tribunal in MJ & ZM thought the position was for Ahmadis generally regardless of how they may choose to propagate their faith in Pakistan.

I accept that, looked at in isolation, the last sentence of paragraph [84] of that decision (which was relied on by the Secretary of State) could be so read. But in my judgment that is not the correct interpretation of the guidance in that case, which was, of course, given before the Supreme Court’s decision in HJ (Iran).

MJ & ZM is one of a number of country guidance cases dealing with the position of the estimated two to five million Ahmadis in Pakistan.

In KK (Ahmadi - Unexceptional - Risk on Return) Pakistan [2005] UKIAT 00033, the Tribunal noted (at [24]) that some of the attacks from non-state actors, a number of which were sufficiently serious to be persecutory, were “directed at persons of high profile (such as active preachers)”. In dealing with an appeal relating to another country guidance case, IA Pakistan, Sedley LJ noted (in Home Secretary v IA (Pakistan) [2008] EWCA Civ 580 at [2]) that

“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, making them refugees unless there is somewhere else in Pakistan where they can safely relocate without its being unduly harsh.”

In paragraph [82] of its decision in MJ & ZM the Tribunal stated that

“The evidence before us...indicated that the propagation question would be more properly approached on a case by case basis with the risk dependent on the lengths to which an individual Ahmadi carried his da’wa observance.”

“Da’wa” refers to an Ahmadi’s obligation to propagate his faith. The Tribunal continued, stating that:

“83.....Whilst it is clear that local pressure is exerted to restrict the building of new Ahmadi mosques, schools and cemeteries from time to time, and some Ahmadis are arrested and charged with blasphemy or behaviour which is offensive to Muslims, the numbers recorded are small and have declined since the Musharraf Government took power. Set against the number of Ahmadis in Pakistan as a whole, they are very low indeed.

84.

There is very sparse evidence indeed of harm to Ahmadis (though rather more anecdotal evidence of difficulties for Christians). We note the great care exercised by the preaching teams who operate out of private homes, by invitation only and after careful vetting of those to whom they propagate the Ahmadi faith. We remind ourselves of the number of small Ahmadi mosques with established officers and security guards in the towns about which we heard evidence, large and small. We remind ourselves that the first appellant was able to hand out leaflets on his stall openly without harm for many years. We note that the courts do grant bail and that all appeals against blasphemy convictions have succeeded in recent years. We consider that the risk today on return to Pakistan for Ahmadis who propagate the Ahmadi faith falls well below the level necessary to show a real risk of persecution, serious harm or ill-treatment and thus to engage any form of international protection.”

The Tribunal did not consider that the first appellant in that case was ever at risk on account of his proselytising activities which were carried on privately; that the objective of the Khatame Nabuwwat mullahs was limited to stopping the open advertisement of the Ahmadi religion in his shop; and that, if he were to relocate, the evidence was not sufficient to establish that he would be at any greater risk than any other devout Ahmadi who was inclined to proselytise, given his evidence that he would choose carefully whom he would seek to persuade avoiding trouble makers: see [32],[35], [91]-[92]. The second appellant in MJ & ZM also failed to establish his claim, as it was found that he would propagate his faith discreetly and privately and not to people at large: see at [97] and [98].

Ms Phelan referred to a subsequent decision of the Upper Tribunal (Immigration and Asylum Chamber), MT (Ahmadi - HJ (Iran)) Pakistan [2011] UKUT 277. In this decision the Upper Tribunal found that the First-tier Tribunal had erred in failing to apply HJ (Iran) to the circumstances of the claimant’s case, even though it had not been drawn to its attention. The Upper Tribunal noted that it had not heard full evidence or submissions on whether the position for Ahmadis had altered significantly since the Tribunal decision in MJ & ZM and that it was unnecessary for the Tribunal to resolve that question given the manner in which the case had been argued and their conclusions. The Tribunal said that it was dealing with the case on its own particular facts. These facts appeared to be in particular that the claimant in that case preached only to those who were “not dangerous” precisely for that reason and that he would be liable to persecution if were to do so to those who were “dangerous”: see at [24]-[28], [31]. In reaching the view that, by preaching to the “dangerous”, an Ahmadi would be liable to persecution to Pakistan, the Upper Tribunal in MT appears to have read MJ as premised on the absence of risk if an Ahmadi was “discreet” to some extent in his preaching: see at [22], [24] and [25]. In doing so it relied on the second sentence of paragraph [84] of the judgment in MJ & ZM.

In my judgment the Tribunal in MJ and ZM considered that Ahmadis might be subject to a risk of persecution in Pakistan depending on how and where they propagated their beliefs but that generally they were not at risk of relevant ill-treatment in practice given how Ahmadis in fact propagate their beliefs in the circumstances in Pakistan. But the Tribunal did not address the question whether a material reason why some Ahmadis only propagated their beliefs in the manner they do, for example with great care and after carefully vetting those whom they may seek to persuade, was because of the risk of persecution if they did not do so. That is scarcely surprising given that the guidance was promulgated before the decision in HJ (Iran).

Since the result of propagating the Ahmadi faith in certain ways may in certain circumstances in Pakistan make an individual liable to persecution, what MT undoubtedly illustrates, in my judgment, is the need for an individual and fact-specific approach to claims made by Ahmadis that, if returned to Pakistan, they would seek to propagate their faith freely but for the risk of persecution.

In my judgment the Secretary of State failed to make any such individual and fact-specific appraisal in this case. The Claimant said in his statement on January 13th 2011 that spreading the message of his faith was a fundamental part of being an Ahmadi; that he did everything he could to be a good Ahmadi; but that “I have had to practise quietly for fear of persecution”; that he knew that, if he “spread our faith to the general public there, I will be caught, tortured and very likely killed”; and that “I feel I am unable to do what is said to be correct for my religion and practice my faith openly without fear of persecution.” The Secretary of State’s response, that it was not necessary for the Claimant to hide his faith on return to avoid persecution, was not based on any appraisal of what the Claimant might or might not do to propagate his faith if returned to Pakistan; why he might conduct himself in that way; and whether a material reason for his conduct in that manner was a well-founded fear of persecution if he acted as he would otherwise have done but for any such fear. The Secretary of State simply relied on the last sentence of paragraph [84] of the judgment in MJ & ZM, not recognising that the assessment it contained was based on the behaviour of Ahmadis who were discreet in their activities without having considered the extent to which that behaviour may have been the result of the risks to which they would otherwise have been exposed.

None of this is to suggest that the Secretary of State was obliged to accept what the Claimant asserted about what he might do on return to Pakistan but for his alleged subjective fear; nor that, if he did not refrain from seeking to spread his faith to the general public, it would be exposed to a real risk of relevant ill-treatment. The scope for self-serving claims in such cases is obvious. The fact that the claim was also only advanced after the Claimant’s appeal had been dismissed by the First-tier Tribunal may also suggest that it could be regarded with some scepticism, quite apart from any other reason there may be for doubting the Claimant’s credibility. Moreover the objective risk involved in doing what the Claimant says he would do but for his fears would need to be considered. But in my judgment the Secretary of State erred in dealing with this claim and it cannot be said on the basis of the material available to me that, but for this error, she would have concluded that this claim had no realistic prospect of success before a Tribunal.

Dr Staker sought to persuade me, however, that the Claimant’s representations on this matter did not amount to a fresh claim on the basis that their content had previously been considered by the Upper Tribunal when refusing the Claimant permission to appeal. I have already referred to that Tribunal’s reasons for refusing permission to appeal on this point, namely (in effect) that this had not been the Claimant’s case before the First-tier Tribunal. It is clear, however, that the merits of this claim were not considered either by the First-tier Tribunal or by the Upper Tribunal. In those circumstances it cannot be said that its “content” has “already been considered” for the purpose of paragraph 353 of the Immigration Rules. Were it otherwise, a tribunal would be precluded from determining a claim which has a realistic prospect of success before it which no tribunal has considered on its merits. That would be incompatible with the limited purpose of the filter which paragraph 353 is intended to create.

The other ground on which it was said that the Claimant would be at risk if returned to Pakistan (apart from his alleged involvement in apprehending a terrorist) was that the standing that he and his wife had in Ahmadi community in Pakistan and as professionals would of itself be sufficient to draw the adverse attention of the mullahs to them.

The Claimant stated (and there was a statement from the Ahmadiyya Muslim Association supporting this claim) that he had served as head of a local Ahmadi organisation for men between 15 and 40 and as the local Additional Finance Secretary and collector for the local community where he lived. He was also employed as a Senior Financial Analyst for an international company and his wife is a doctor.

As Dr Staker pointed out, the Claimant informed the Tribunal of these matters and also that his wife was also the President of Lajna (female) in the local Ahmadiyya community (see his witness statement at [10] and [24]). Dr Staker pointed out the Tribunal’s finding that the Claimant did not fall into any exceptional category as an Ahmadi Muslim to place him at risk on return. He submitted, therefore, that the content of this claim had already been considered and rejected by the Tribunal.

Although the claim was once again advanced on this basis in the letter dated February 9^th 2011 from the Claimant’s solicitors, no complaint about its treatment was advanced in any of the four sets of grounds upon which this claim was made.

In her final schedule, however, Ms Phelan complained that the Claimant’s role in the community had not been considered at all, thus showing a lack of anxious scrutiny on the part of the Secretary of State, as his profile went to the Claimant’s credibility generally and risk on return. No reference was made in the Schedule to an explanation why the positions which the Claimant and his wife may have held and the standing which they may have would put the Claimant at risk of persecution on return. When asked, however, Ms Phelan directed my attention to an opinion given by Dr Martin Lau, a Reader in Law at the School of Oriental and African Studies who also visited Pakistan in February 2010 as a member of a mission organised by the Parliamentary Human Rights Group to examine the human rights situation of Ahmadis there. In that report he expressed the view that the Claimant’s high profile in the Ahmaddiyya community, coupled with the fact that he is a successful professional married to a well-qualified wife, makes him an “attractive” target for extremist groups. In his view professionals are being attacked so as to intimidate the community and to raise the profile of the extremist group. Similar views were also expressed in Mr Blackman’s report. Dr Staker pointed out that Dr Lau has referred to no specific evidence of such specific groups being targeted. Nor did Mr Blackman.

The Secretary of State subsequently considered the reports of both individuals and that of the Parliamentary Human Rights Group. Her views on those reports were not impugned in the grounds thereafter nor in Ms Phelan’s schedule.

I have already referred above to what the Secretary of State stated in response to Mr Blackman when dealing with the risk to the Claimant on return on the assumption that his story about his identification on television as an Ahmadi and as one who captured a terrorist was true. In my judgment, if the Secretary of State was entitled to reject the representations made as a fresh claim on that basis, it is hard to see any rational basis for her reaching a different conclusion on this claim (again assuming that the fact that he was an Ahmadi was revealed by that broadcast or by any broadcast showing him as one of those injured in the attack on the mosque).

Such broadcasts are not alleged to have revealed what positions the Claimant or his wife held in the Ahmadi community. The alleged risk on this basis consists in the Claimant’s exposure as an Ahmadi coupled simply with the professional standing which he and his wife have. Plainly non-Ahmadis living locally might know about their occupations, where they lived and worked and (on the assumption that they saw any such broadcasts) they may have learnt that the Claimant and his wife were Ahmadis, as he had been injured in the attack on the mosque. The Tribunal rejected the Claimant’s claim that he was at any real risk on return having been thus revealed as an Ahmadi on the basis of what had, or rather had not, happened to him after these broadcasts are said to have taken place.

Even if this is a claim whose content could be said not to have been considered by the Tribunal, as it was subsequently supported by the opinions of Dr Lau and Mr Blackman, in my judgment the Claimant has not shown that the Secretary of State was unreasonable in concluding that it was not one that gave rise to a realistic prospect of success before a Tribunal if the Claimant’s exposure as an Ahmadi who captured a terrorist did not itself do so. The opinions of Dr Lau and Mr Blackman on this point were expressed without reference to any apparent analysis of the evidence to show that Ahmadis having the professional standing of the Claimant and his wife were “attractive” targets for extremists and that, if recognised as Ahmadis, they would be at a real risk of relevant ill-treatment for that reason alone.

I do not propose to deal with the multitude of complaints which the Claimant makes about how the Secretary of State erred in dealing with the further representations made which sought to support the Claimant’s account of what happened to him in Pakistan. Many of them were devoid of any merit. But whether any of those complaints have merit is irrelevant, as Dr Staker pointed out, unless the Claimant can also show that there is further material which creates a realistic prospect that a Tribunal would find he would be at a real risk of relevant ill treatment on his return to Pakistan if his account was true that he had been identified on national television as an Ahmadi who helped apprehend a terrorist (given that the Tribunal has already found he would not be). I have already considered the claim for judicial review insofar as it touches on that issue above. As I have explained, in my judgment the Claimant has not shown that the Secretary of State erred when dealing with matters relevant to that issue.

For the reasons given above, the Secretary of State’s decision rejecting the Claimant’s representations, based on HJ (Iran), that he would be at a real risk of persecution if he propagated his Ahmadi faith freely in Pakistan was flawed. Her decision accordingly falls to be quashed on that ground.