Yaqub -v- Secretary of State for the Home Department  UKIAT 19569
Date of hearing: 17 June 1999
Date Determination notified: 29 July 1999
|SHAH FAISAL YAQUB||APPELLANT|
|Secretary of State for the Home Department||RESPONDENT|
The Appellant, a citizen of Pakistan, appeals with leave which was deemed to have been granted on 27 November 1998 from the determination of a special adjudicator, Mr M I Khan. Mr Khan had dismissed the appeal by Mr Yaqub from refusal of asylum by the respondent.
At the hearing of-the appeal the Appellant was represented by Mr Kothari of counsel, and the respondent by Mr Oeller, A skeleton argument, bundles of documents, and further cases, were either submitted at the hearing or had been received several days earlier. There was no objection to the reception of any of this and it does not appear obvious to us that the late submission of the documents was entirely due to the fault of the parties.
The appeal is allowed.
The Appellant was born a follower of Islam, in Pakistan, in 1971. He obtained entry clearance to come to the United Kingdom and arrived here as a student in Septemper 1990. He remained until 1994 being sponsored by his brother who lives here. In 1992 he ran into financial difficulties. He was arrested, served with illegal entry papers, detained for ten days and then served with a decision to deport him. The respondent says that he was working but he denies this. Nonetheless, an appeal from the decision to deport him was dismissed, leave to appeal to the Tribunal was refused and a deportation order was duly signed on 31 October 1995, Judicial review of that was also refused.
The adjudicator accepted that during this entire period, which he thought was one involving undoubted-stress, he prayed to Allah for help and, considering that Allah did not answer his prayers, he lost faith and became a disbeliever.
He now claims that should he be returned to Pakistan he may be persecuted for apostasy.
The short issue since these facts are accepted is whether the total abandonment of all belief, becoming an Atheist, is apostasy. If it is apostasy (or even if it is not strictly) is the Appellant is at risk of persecution should he return to Pakistan.
As we say, the facts are not in issue. The adjudicator, who is most experienced and in what appears to us to be an impeccable determination, came to the conclusion that even if the Appellant's family do disown him and his friends disassociate themselves from him, he does not have to live with them and he can go anywhere else in Pakistan and "I do not think that it can be said that the Appellant's decision defiles the name of the Prophet and so in my view, s.295(c) of the Pakistan Penal Code could not apply to him." In other words there is no serious risk that he will be visited with any penalty on account of his abandonment of Islam and therefore it cannot be said that he will be persecuted for a Convention reason. The Convention reason in any event would be because of religious reasons.
Mr Kothari relies upon the skeleton argument which most helpfully he submitted in advance and we have had an opportunity to read. He made additional submissions and those can, without any disrespect to them, be summarised as follows:
1. It is clear from the letter written by the respondent on 18 July 1996 why he considers that, granted he had abandoned his faith in Islam, he was not at risk. In paragraph 4 of that letter the HOme Office makes the following points:
a) Conversion from Islam to Atheism is an offence under Sharia law.
b) Nobody in Pakistan will be aware of this and there is no reason to suppose that he would be of any interest either to the authorities or the local community.
c) If however his apostasy were to become known he would have a fair trial.
2. Atheism is the ultimate blasphemy and therefore even more important than conversion to another religion.
3. Islam is a total way of life.
4. The burden of proof rests upon the respondent and if it does not then it is only up to the reasonably likelihood standard.
Mr Deller relies upon the reasons for refusal and emphasises that the Appellant comes from Rawalpindi which is a very large city. There are a very small number of blasphemy cases pending in a very large population. The likelihood, therefore, so far as the Appellant is concerned of being persecuted for his beliefs is so low as not to satisfy even the low-standard of proof imposed.
Although Mr Oeller argued that the internal flight alternative did apply he said in any event, even if it did not, we are looking at the safety from persecution or the protection therefrom in a unitary state and either way the Appellant was safe.
Reasons for Decision
It seems to us from a reading of the letter of 18 July, that the respondent accepts that abandonment of Islam is apostasy. Apostasy does not, it seems, in the view of the respondent necessarily to involve the adoption of another religion. That would seem to accord with the view of Or Werner Menski, whose opinion is before us and is dated 11 May 1999. Or Menski agrees that s.295(c) of the Pakistan Penal Code 1960 does not explicitly cover cases of individuals who have abandoned their allegiance to Islam but did not replace it with belief in any other religion, however, he points out that abandonment of all belief in Allah as a Divine force who regulates everything has many and far reaching consequences in his every day life and cannot escape the notice of others. In this he quite specifically disagrees with the special adjudicator. He goes on to say that what Mr Yaqub has done will outrage the feelings of good Muslims and could easily be brought under the umbrella of s.295, 295a, 295b and, more probably, s.295(c). That he said is the risk.
Mr Fyzee in his outlines of Mohamadan Law 1964, at page 170, appears to adopt the same view.
The next point relied upon by the respondent is that there is no reason to suppose that Mr Yaqub's actions will be known to anyone and therefore he cannot be of any interest to them should he return. Or Menski has opined upon that as we have seen.
Mr Kothari points to the evidence concerning the Appellant's own family and how impossible it would be for the Appellant to return and go through life without it coming to the notice of others that he is an Atheist. This is particularly so because his family is very orthodox and he himself was not only a practising Muslim but a member of the Tableeghi Jamat, which is a group which evangelises, exhorting people to practice their religion. A return to Pakistan, adopting such a different pattern of life, could not 8 but be noticed. On the other hand as the adjudicator says there must be very large numbers of people in Pakistan who do not actively practice their faith. Indeed the very existence of the Tableeghi Jamat testifies to that fact. It is impossible to conceive the state argues that everybody who does not go to Mosque attend prayers and otherwise faithfully and openly manifest adherence to Islam is at risk. There is even, says the adjudicator, a common dispensation to say prayers at home so who could know whether he had such a dispensation.
Finally, says the respondent, if the worst comes to the worst and he is charged he will have a fair trial. Not to put too fine a point upon it, we think that Or Menski and Mr Kothari decry that as arrant nonsense, but as Or Menski puts it:
"In this context, it is also necessary to emphasise that Mr Yaqub cannot expect a fair trial if he was ever dragged into court as an apostate. In other words, whilst the Pakistani court struggle valiantly to maintain judicial independence and to protect an accused person from being treated as guilty before proven so by a court of law, individuals who are accused of challenging basic norms of Pakistani society must always account for the possibility of a swift end by an assassin's bullet or by other means instead of judicial justice in accordance with the letter of the law."
We think that Mr Kothari takes it rather further asking, rhetorically, how can there be a fair trial when the only law under which he will be tried is that of Islam and where on a blasphemy charge any evidence of a non-Muslim is valued at half that of a Muslim.
We have noted the penalties for blasphemy and we have noted the background information which appears to indicate that the situation in Pakistan has not improved so far as either a fair trial of in respect of those seen to be in conflict with Islam.
The UNHCR Ref: World Country of Information, we notice, has this to say on Freedom of Religion:
"Pakistan is an Islamic Republic in which 96% of the people are Muslim ... the Government permits Muslims to convert to other faiths but prohibits procilitising. S.295(c) with the death penalty was introduced in 1986 and has been used to threaten and intimidate even Muslims. It was in Pashawa High Court, however, in January 1995 two Shi'a Afghans who had been condemned to death for blasphemy were acquitted."
We are satisfied that the abandonment of Islam by a follower is covered by s.295(c) of the Pakistan Penal Code. It appears to be more likely than not that it would be regarded as blasphemy should anybody be charged thereunder.
We are satisfied also because it has been so accepted that the Appellant did convert whilst in this country. There is no suggestion that he did so in order to give himself a better chance of staying in this country. It is nowhere suggested that he abandoned his faith for any wrong motives.
He is fully entitled to abandon his faith in just the same way as under the law in this country at least, he is entitled to adopt another faith and indeed in Pakistan under the Constitution apart from apostasy there is the freedom to follow any religion.
If the Appellant were to be charged with blasphemy the penalty could be death. In any trial we find it extremely difficult to conclude that he would have what we would know as a fair trial. If for no other reason that witnesses should be valued for their extraneous unconnected situations such as sex, or belief, it makes no more sense and can be no fairer than to do so by reason of, for example, colour. We cannot see how a trial under such circumstances could be fair.
There still remains the most important question whether or not the Appellant would be likely to be charged, whether he can live without serious likelihood of persecution in Pakistan, whether in his own home area or somewhere else. The question of whether he will be protected is bound up with the question of a fair trial and we think we must conclude the question of protection in the same way as we conclude our view in relation to a fair trial. In other words there would be no protection.
That brings us finally to the question of whether or not he can go back to Pakistan
and be an Atheist and be left alone.
We would have thought that he could, save for two factors; the first is his orthodox family. It seems to us that wherever he lives he cannot escape from their finding out, and secondly, his membership of the Tableeghi Jamat - his earlier evangelism.
We think the best we can do with the information at our disposal is to say that he is entitled to the benefit of the doubt on this and it is for that reason that we conclude that his appeal must succeed.
R G CARE