England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr STEPHEN MORRIS QC SITTING AS AN ADDITIONAL JUDGE OF THE QUEEN'S BENCH DIVISION
C0/2173/2006

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/01/2012

LORD JUSTICE WARD:

1. This is another of those frustrating appeals which characterise – and, some may even think, disfigure – certain aspects of the work in the immigration field. Here we have one of those whirligig cases where an asylum seeker goes up and down on the merry-go-round leaving one wondering when the music will ever stop. It is a typical case where asylum was refused years ago but endless fresh claims clog the process of removal. More specifically, it is an appeal against the dismissal by Mr Stephen Morris Q.C. sitting as an additional judge of the Queen's Bench Division on 19th June 2009 of the appellant's claim for judicial review of a decision of the Secretary of State refusing to accept that he was entitled to bring a fresh human rights or asylum claim.

The depressing story in more detail

2. The appellant was born on 28th November 1973 in Jaranwala in Pakistan. He and his family adhere to the Ahmadi faith. Because of a dispute with neighbours which he did not specifically claim was the result of the family being Ahmadis, his parents lost their home in Jaranwala and the family moved to Rabwah when he was about 15 years old. When he left school in 1989, he moved to Karachi. Although he was active in the Ahmadi community, particularly in relation to the youth wing, he received no adverse attention from religious extremists or the authorities until March 1997 by which time he had been in Karachi for some 8 years. He was then questioned by the extremists, suspected of being an Ahmadi and beaten. He was reported to the police and lost his job because his employer feared the extremists. So he moved a thousand miles to Sheikhupura where he had relatives. There he was harassed by other traders in the market because of his religious beliefs, reported to the police for preaching his faith and defaming Islam, arrested, kept in custody and beaten. As an Ahmadi by birth, preaching was an obligation for him "as important to me as reading is to a human being". Having paid a bribe he was released. Shortly afterwards the same police officers sought to extort more money from him, and again badly beat him. It was as a consequence of this that he decided to leave Pakistan.
3. The circumstances of his arrival in the United Kingdom lacked credibility. He apparently obtained a visitor's visa and arrived here on 20th August 1998 travelling on his own passport. When his claim for asylum eventually came to the Immigration Tribunal, the adjudicator would not accept that he had returned to Pakistan after 2 weeks only to come back a fortnight later on a false passport. That claim for asylum was made on 29th September 1998, over 11 years ago. He falsely assumed the identity of ST. He produced documents relating to ST's involvement in the Ahmadi community but the adjudicator was later to find that they cast doubt upon his credibility rather than enhanced it. The adjudicator also rejected as false other documents he put forward to support his claim of persecution.
4. His claim for asylum was refused by the Secretary of State on 11 August 2000. His appeal to the Immigration Appeal Tribunal was dismissed by the Adjudicator, Mr Yelloly, on 24 February 2001. His application to appeal was refused for being out of time and directions were set for his removal on 18 November 2001, all of ten years ago, but not implemented because he made representations that removal would breach his human rights. The merry-go-round had started. Within four days he submitted additional grounds.
5. His human rights application was refused on 7 December 2001 but five days later he submitted further representations and secured his release from detention on 21 December. More representations followed in February 2002. Somehow he submitted an application for permission to appeal out of time in February 2003 and followed this with fresh claims in February, March and April 2003 all which were rejected in June 2003. Permission to appeal was granted on 14th July 2003 and on 3rd December 2003 the matter was remitted for a fresh hearing. This was heard by the Adjudicator, Mr Strowger, in January 2004. His determination was promulgated on 2nd April 2004.
6. What did the adjudicator make of his claim? He found:

"26. … Whilst I consider there is a serious possibility that the events in Jaranwala occurred – essentially directed against his parents rather than the appellant who was in his mid-teens when the events occurred, I do not find that those events would lead to a serious likelihood of persecution being directed against the Appellant if he returned there now. … it is clear that he moved from Rabwah to Karachi to progress his education and to take advantage of work opportunities. It was not because he was persecuted in Rabwah. He lived in Karachi for eight years without any reported incident of persecution occurring. He held down a job that he was pleased with. He claims to have been active in the Ahmadi community as a voluntary worker from 1994 but does not report any problems until 1997. If he had been as active in his Ahmadi faith as he suggests, it is perhaps surprising that he had not experienced problems. Had he had significant problems I have no doubt that he would have mentioned them. Given the background evidence I accept there is a serious possibility that he was attacked in Karachi and did lose his job. It is claimed that he had established a good business in Sheikhupura but there is no evidence to support this and he was not in business there for very long before the further alleged persecution occurred. His evidence is that members of the Khatame Nabbuwat who opposed him were business rivals and used the pretext of his Ahmadi faith to oppose him. This does not suggest there was any link with the persecution he claims in Karachi … The physical ill-treatment he claims to have suffered was at the hands of the police rather than the Khatame Nabbuwat. …

27. I have nevertheless reached the conclusion that, notwithstanding my doubts as to his credibility on certain matters, the core of his story remains to the extent that there is a serious possibility he was persecuted in Karachi Pakistan because of his Ahmadi faith. I make no finding as to whether or not he was persecuted for a Convention reason in Sheikhupura; he may well have antagonised business rivals though his business there was short-lived. … The issue is whether he would face persecution if returned now. I reject the evidence as to current risk based on the FIR and similar doubts as to the poster.

28. The issue whether he would face persecution if returned now. I reject the evidence as to current risk based on the letter from Pakistan, the FIR and the poster. I do not find that he was particularly conspicuous to religious extremists because of his religious activities per se – or he would be now if he returned and resumed the same level of activities – he was after all in Karachi for eight years without recorded incident; the events in Sheikhupura appear to have been motivated by business rivalry with his Ahmadi faith and activities providing a pretext for his competitors acting against him. It is now approaching six years since he left and memories of his previous problems will have dimmed. He was not charged with any offence … However I accept that returning to live in Karachi where I have found he has suffered persecution and possibly to Sheikhupura where he may have been persecuted might place him in the position where there is a serious possibility that he would be persecuted again for his Ahmadi faith. I heard evidence from him that he would continue preaching – it was as important to him as reading and it was for every Ahmadi to preach their religion – but his evidence of his activities in Pakistan do not indicate that he was a high profile preacher who would attract attention as a result of proselytising his beliefs. I did not find on his evidence that he had a prominent role as a preacher with a significantly high profile that would draw particular attention of religious extremists to him. I accept there is a serious possibility that the incidents of alleged persecution occurred but I do not find it a real likelihood that he had a specific role of a preacher of the Ahmadi faith, over and above what every Ahmadi has a duty to do."

(To explain, the FIR refers to an incident occurring on 27th January 2003 and reported to the Daska police on the same day. The adjudicator accepted that false reports are made to the police against Ahmadis and that this FIR may have been initiated on the false information of his opponents. Thus he found:

"Clearly this is a false report as the appellant … was, of course, in the UK at the time."

Among the other documents the appellant produced was a poster that showed him to be a target of the Khatame Nabbuwat but the adjudicator could only assume that it dated from the same time as the FIR and was therefore unreliable.)

"29. However notwithstanding the inconsistencies in his story and his calculated efforts to boost his claim with manufactured evidence, I do find it credible, taken in the round and applying the lower standard of proof that he did suffer persecution at the hands of religious extremists against whom the state was unwilling or unable to provide protection … and there is a serious possibility that he would suffer such ill-treatment again if returned to those parts of Pakistan where Ahmadi are in a minority.

30. However in Rabwah, where 90% of the population are Ahmadi it is a different matter compared with Karachi, Shaikupura and other places where Ahmadi are very much in the minority.

…

31. However I find it would be safe and not unduly harsh for this Appellant to re-locate in Rabwah. … In the case of this Appellant I follow the conclusions in Mizra – referring to the US Department of State Report, Part V – in finding that notwithstanding the presence in Rabwah of members of the Khatame Nabbuwat, protection is available to Ahmadis and it is generally safe for them there. … I do not find his evidence credible that in Pakistan he was prominent and conspicuous as a preacher of the Ahmadi faith. In Rabwah it is not a serious possibility that he would be persecuted and without available protection.

32. There was no evidence as to why it would be unduly harsh for him to re-locate in Rabwah. He has family there and there is no reason why he would not be able to establish himself and exploit his obvious business acumen."

7. Notwithstanding that he had an established private life in the UK, removal was found to be in accordance with the law and proportionate to the legitimate aim of proper immigration control. Accordingly both his asylum appeal and his human rights appeal were dismissed. His application for permission to appeal was refused on 27 April 2004 by Mrs Gleeson who held that the Adjudicator's decision was "soundly reasoned, the core paragraphs being paragraphs 23 – 31."
8. Notwithstanding that set back, the carousel continued to go round and round, because, nothing daunted, the appellant had submitted a fresh claim barely eight weeks later on 30 June 2004. That was rejected on 1st October 2004 but the indefatigable appellant then submitted more fresh claims on 18 October 2004 and 25 January, 27 May and 13 December 2005.
9. He was detained on 23 February 2006 but his newly instructed solicitors immediately made yet another fresh claim. This was said to constitute a significantly different case. It boiled down to this. There was a tribunal decision since the determination of Mr Strowger that had held that Rabwah was not the safe haven it had been believed it was. Expert opinion also concluded that relocation in Rabwah was no proper solution. In the view of an expert, Dr Parker, the situation for Ahmadis had worsened, so much so that "it defies reason to characterise Rabwah as a safe haven for Ahmadis as no-one can hide from the authorities in Rabwah" leading to the conclusion that Rabwah is unsafe for resettlement. It was suggested that any adverse findings of credibility made by the adjudicator were "peripheral and not core".
10. On 10th March 2006 that fresh claim, with consideration also given to the earlier representations submitted in October 2004, January, May and December 2005, was rejected by the Secretary of State. He had paragraph 353 of the Immigration Rules expressly in mind this providing:

"When a human rights or asylum claim has been refused 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 would amount to a fresh claim if they are significantly different from the material that has been previously considered. The submissions will only be significantly different if the content had not already been considered and, taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

He reviewed the case on its merits and gave it anxious scrutiny. He considered that the documents submitted with the application, being photocopies, could not be verified and added little weight to the case. The poster and FIR had been rejected by the adjudicator as referring to some other person. No credible evidence had been submitted to show that the appellant would receive adverse attention or would be specifically targeted in Rabwah nor that he would be unable to be relocated safely to different parts of Pakistan. The submission did not have a realistic prospect of success and the submission did not amount to a fresh claim. The Secretary of State was of the view that the applicant had no basis to stay here and that action should be taken to ensure his removal from the United Kingdom without delay.

11. But the whirligig kept turning. On 13th March 2006 the applicant lodged his claim for judicial review seeking an order that the decision of 10th March 2006 be quashed. Permission to bring that claim was refused on paper by Mr James Goudie Q.C. sitting as a Deputy Judge of the High Court on 1st June 2006 but an oral hearing was sought. By an order made by consent on 30th October 2006 the application was adjourned to await the outcome of the determination by the Asylum and Immigration Tribunal of pending country guidance cases concerning issues relating to those of the Ahmadi faith in Pakistan. On 17th October 2007 the AIT promulgated its determination in the country guidance case of IA and Others (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT 00088. On 4th April 2008 the AIT promulgated another decision in MJ and ZM (Ahmadis, Risk) Pakistan CG [2008] UKAIT 00033. The Court of Appeal decided the appeal in the IA case on 22nd May 2008: see Secretary of State v IA (Pakistan) [2008] EWCA Civ 580.
12. On 21st July 2008 Walker J. gave permission to proceed with the judicial review claim but on grounds which were to be re-formulated. The appellant had effectively abandoned the grounds of his original challenge to the Secretary of State's decision of 10 March 2006. This was to all intents and purposes a new challenge, another ride on the round-about.
13. The further representations were submitted on the claimant's behalf on 4th August 2008. On my count this was the fifteenth submission of a fresh claim. I will deal with it in more detail later but, putting it broadly, it was contended that the Adjudicator's decision was "clearly premised upon the assumption that he would be able to safely relocate in Rabwah. This factual proposition has been undermined by recent case law", being the cases referred to in [11] above. So the appellant urged:

"8. In the light of the aforementioned case law, the claimant submits that:

(a) Adjudicator Strowger accepted that he had been subjected to persecution, and that he would be at risk in those areas of Pakistan where Ahmadis were in the minority.

(b) Rabwah is not a safe relocation alternative, simply on the basis of the number of Ahmadis present within the population.

(c) He is an exceptional Ahmadi who cannot return safely to his home area, and is unable to relocate in Rabwah."

14. The Home Secretary responded on 27th November 2008 stating in paragraph 8 that his task was "to give anxious scrutiny to the question of whether further submissions would create a realistic prospect of success before an immigration judge". He then reviewed the Adjudicator's findings in the light of the new country guidance that internal re-location depended on the individual's circumstances, that the general risk for returning Ahmadis who propagate the Ahmadi faith fell well below the level necessary to show a real risk of persecution or serious harm of persecution, and that the risk was usually of illegal or violent activity by the KN. Since the appellant was found to be at risk at the hands of the police and not from Khatame Nabbuwat, his circumstances differed from those in the decided cases upon which his solicitors placed reliance. It was pointed out that the appellant had "the option to relocate anywhere in Pakistan, apart from Karachi and Sheikhupura which are locations where the adjudicator found that your client may have suffered persecution." He noted that the appellant was born in Jaranwala where he spent most of his life. He had not been persecuted in Rabwah. It was not accepted that that he was "such an exception that he is at risk in Pakistan as a whole". So the Secretary of State concluded:

"17. In conclusion, for the reasons set out above, the Secretary of State is of the view that there is no realistic prospect that your client's submissions will, when taken together with all the previously considered material, lead an immigration judge to decide that your client should be allowed to stay in the United Kingdom and accordingly it does not amount to a fresh claim under paragraph 353."

The claim for judicial review

15. The claim as amended was to challenge the rationality and legality of the decision of 27th November 2008 and to seek a declaration that the representations dated 4 August should be treated as a fresh claim. No attempt was made to resurrect the original challenge to the decision of 10th March 2006. For that reason I would reject the attempt of Mr Manjit Gill, who had not appeared in the court below, to argue a case which has never had permission to proceed. This amended claim, to all intents and purposes a new claim, was heard by Mr Stephen Morris QC. This is the appeal against his order dismissing that claim for judicial review. In deference to the way the case was argued I shall set out his judgment quite fully even though, in my view, our task, like his, is to review the decision of the Secretary of State. He directed himself as follows:

"10. The approach to be adopted by the Secretary of State and by this court respectively, when dealing with an application under paragraph 353 is set out in the judgment of Buxton L.J. in R (on the application of WM (DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraphs 6-11. The Secretary of State has to consider whether there is new material which is significantly different from that already submitted, and if so, whether that material, taken together with the previous material, creates a realistic prospect of success in a further claim. In so doing, the Secretary of State must be informed by anxious scrutiny of the material.

11. As to the approach to be adopted by the court when itself reviewing a decision of the Secretary of State taken pursuant to paragraph 353, the first issue for the court is whether the Secretary of State asked herself the right question, namely whether there is a realistic prospect of success before an immigration judge. The second issue for the court is whether the Secretary of State has applied the requirement of anxious scrutiny. Finally, the question for the court is whether the Secretary of State's conclusion of "no realistic prospect" is Wednesbury unreasonable; it will be unreasonable in particular, if the conclusion was not reached on the basis of anxious scrutiny. Most recently, in ZT (Kosovo) v SSHD [2009] UKHL 6, [2009] 1 WLR 348 the House of Lords confirmed this as the correct approach for the court. At the same time, the majority of their Lordships recognised that where there are no issues of primary fact, the court's own view as to whether there is a realistic prospect before the immigration judge is likely to inform its view as to whether the Secretary of State's conclusion was Wednesbury unreasonable and that in such a case if the court itself concludes that the claim has a realistic prospect of success, it will quash the Secretary of State's contrary view as being irrational: see opinions at paragraphs 21 to 23, 75 to 76 and 83. (The emphasis was added by the deputy judge.)

12. The issue before me therefore is whether, applying the requirement of anxious scrutiny, the decision of the defendant that, considering the claimant's personal circumstances in the light of IA and MJ and ZM, there is no realistic prospect of the claimant establishing, before an immigration judge, that there is a real risk of persecution or real treatment upon return to Pakistan was unreasonable and whether in reaching that conclusion the Defendant satisfied the requirement of anxious scrutiny."

16. He gave careful consideration to IA in the AIT and Court of Appeal and MJ and ZM which he summarised as follows and it was not suggested he was wrong to do so:

"24. … the following principles can be derived from the cases of IA and MJ and ZM.

(1) In Pakistan as a whole, the number of incidents recorded against Ahmadis are small, particularly when set against the number of Ahmadis in Pakistan. There is very sparse evidence of harm to Ahmadis from non-state agents. The risk today on return 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: MJ and ZM §§ 83 and 84.

(2) There may exceptionally be a case where the facts indicate that an individual cannot be returned safely to his home area, in which case the question of the existence of an internal relocation option arises: MJ and ZM § 84 and § 4 of the summary.

(3) Where a question of internal relocation does arise, the existence of an internal relocation option, either to Rabwah or elsewhere in Pakistan is a question of fact in relation to that individual: MJ and ZM § 84 and § 4 of the summary.

(4) Whilst Pakistan as a whole is safe, for an individual who does have a reasonable fear of persecution in one part of Pakistan, Rabwah does not necessarily constitute a safe haven: IA (CA paragraph 17 and 19(a)). For those that 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: IA (CA), § 19(e).

(5) A relevant factor in determining, on particular facts, whether a particular place of internal relocation is safe is whether there is evidence of "national" or "institutional pursuit" or, rather, whether the past persecution was "localised": IA (AIT) § 27: MJ and ZM §§ 91, 92 and 94; and IA (CA) § 2."

He then analysed the adjudicator's determination citing extensively from paragraphs 22, 26 to 33. Finally he summarised the fresh claim and in considerable detail the Secretary of State's response to it.

17. He pointed out that in making his assessment of the prospects before an immigration judge, the defendant was required to consider the position as it would be before an immigration judge now, having particular regard to the matters discussed in the latest Country Guidance Cases. He reached these conclusions:

"56. In my judgment the Defendant applied the relevant principles to be derived from IA and from MJ and ZM and there is no basis upon which it can be said that the Defendant's application of those principles to the particular facts of the claimant's case was irrational.

57. For those reasons I conclude that it was open to a reasonable Secretary of State, properly applying IA and MJ and ZM, and addressing matters with the requisite anxious scrutiny, to have concluded that there was no realistic prospect of the claimant establishing before an immigration judge that there is a real risk of persecution and/or ill-treatment upon his return to Pakistan. The Defendant's decision that the Claimant's further representations did not amount to a fresh claim under paragraph 353 of the Immigration Rules was therefore not unreasonable. Accordingly I dismiss the claimant's application for judicial review."

The grounds of appeal

18. In summary they are:

(1) the judge (and I would add, the Secretary of State) misapplied the test in WM (DRC)) in considering whether or not there was a fresh claim. They erred because they considered it only in terms of whether or not the Secretary of State's assessment of the merits of the appellant's representations was reasonable. There are on the contrary two separate questions to consider and the Secretary of State's decision betrayed no attempt to give any independent consideration to the separate and more important question: even if the Secretary of State's assessment of the facts is reasonable and the asylum and human rights claim is reasonably rejected by the Secretary of State, is it realistically possible that an immigration judge might take a different view from the Secretary of State?

(2) In the light of the new country guidance, the view could not reasonably be held that there was no realistic prospect that an Immigration Judge might conclude that the appellant could be expected, safely and reasonably, to relocate in Rabwah.

(3) There was no realistic prospect that an Immigration Judge might hold that, given his persecution at the hands of both the extremists and the police, he could relocate elsewhere than Karachi and Shaikhupura.

Discussion

19. Generally: as I have already remarked, on an appeal from the judge on the judicial review of a decision of the Secretary of State, the task of the Court of Appeal is essentially the same as it was for the judge below, namely, to review the Secretary of State's decision on Wednesbury grounds. We will, of course, pay due respect to the views of the judge but are primarily more concerned with whether the Secretary of State has erred than with whether the judge has erred.
20. Ground 1: Mr Sarabjit Singh for the Secretary of State correctly points out that the appellant did not seek to suggest in the court below that the Secretary of State had failed to ask himself the correct question when considering the appellant's representations. That might be enough to dispose of that point but I prefer to eschew technicalities in an asylum appeal so I will consider Mr Gill's submissions on their merit.
21. The Secretary of State directed himself in paragraph 8 of his determination of 8th November 2008 in accordance with WM (DRC) that he was "to give anxious scrutiny to the question of whether further submissions would create a realistic prospect of success before an immigration judge". So he asked the right question. He then at stage 1 of the process of answering it assessed the representations and arrived at conclusions which the judge found were reasonable and were certainly not irrational. The main challenges are the subject of grounds 2 and 3. It is sufficient for present purposes to say I agree with him. Then at paragraph 17 of his determination recited at [14] above he turned to the second stage of his enquiry and concluded that "there is no realistic prospect that your client's submissions will, when taken together with all previously considered material, lead an immigration judge to decide that your client should be allowed to stay in the United Kingdom and accordingly it does not amount to a fresh claim under paragraph 353." This approach seems to me to be wholly in accordance with WM (DRC) where Buxton L.J. said:

"The task of the Secretary of State

[6] There was broad agreement as to the Secretary of State's task under para 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under para 353(i) according to whether the content of the material has already been considered. If the material is not 'significantly different' the Secretary of State has to go no further. Secondly, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material."

22. For his part the judge likewise gave proper attention to the important second question and in paragraph 57 of his judgment upheld the Secretary of State's view, concluding that it was open to a reasonable Secretary of State properly applying the new country guidance and addressing matters with the requisite anxious scrutiny to have concluded that there was no realistic prospect of the appellant establishing before an immigration judge that there was a real risk of persecution or real ill-treatment upon his return to Pakistan. By introducing that paragraph with the words "For these reasons I conclude …" the judge was perfectly properly taking the view that in the light of the Secretary of State's reasonable assessment of the merits, his conclusion, with which the judge agreed, was inevitable. As Lord Phillips of Worth Matravers said in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 348 at paragraph 23:

"… a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."

In my judgement there is no room whatsoever for finding the Secretary of State was in any way irrational either in his approach to or in his actual decision-making in this case. I can see no merit in the first ground of appeal.

23. Ground 2: the essential point argued by the appellant is that as the findings of the adjudicator simply cannot stand in the light of the subsequent Country Guidance cases, the Secretary of State was bound to find that these new submissions were significantly different from the material that had previously been considered and that there must, therefore, be a realistic prospect that an Immigration Judge would find that there was a real risk of persecution.
24. The appellant pointed to the contrast between the determinations of the adjudicator and the country guidance cases. As for the adjudicator, Mr Strowger, his findings set out in full at [6] above included, in particular:

(i) at [29] "There is a serious possibility that he would suffer such treatment again if he returned to those parts of Pakistan where Ahmadi are in a minority;

(ii) at [30] "However in Rabwah, where 90% of the population are Ahmadi it is a different matter compared with Karachi, Shaikhupura and other places where Ahmadi are very much in the minority; and

(iii) at [31] Accordingly, "I find it would be safe and not unduly harsh for this appellant to relocate to Rabwah."

Contrary to that reasoning, the case of IA established that:

"21. Nevertheless, Rabwah's status as an Ahmadi stronghold has given rise to the view expressed sometimes by the Secretary of State, particularly in letters of refusal, and sometimes by the Tribunal, whether in reliance on Country Guidance or otherwise, that a person at risk elsewhere and so in need of a place to relocate internally could reasonably be expected to go to Rabwah where he would obtain protection because of the Ahmadis there. We are satisfied that that is wrong. …

22. But although there is that safety in numbers, and there is a possibility of informal community support among Ahmadis, the advantages of Rabwah stop there, even for an Ahmadi who lives in Rabwah. Such a person cannot expect in Rabwah any more than anywhere else to obtain protection from the police (there are few or no Ahmadi policemen) or from other officials; because, despite being the majority population in Rabwah, Ahmadis are not represented in government. So there is no greater protection available for local Ahmadis in Rabwah than there is for Ahmadis elsewhere in Pakistan.

23. For those who move to Rabwah, from other parts of Pakistan, the prospects are, on the evidence we have seen, to be viewed with even less equanimity. Unless they have friends or relations in Rabwah they may not, according to the evidence, be able to obtain accommodation. There are regulations prohibiting the sale of land in one part of Rabwah to Ahmadis, although there is some evidence of Ahmadi building on vacant land in the other part of Rabwah and outside the town centre. Further, the very fact of having moved to Rabwah may attract attention to an individual's religious affiliation.

…

25. It therefore seems to us that despite Rabwah's special profile in the Ahmadi religion it has no special status in the refugee related discourse relating to Pakistani Ahmadis. It is simply wrong to say in general that a person who has established a history of persecution or a fear of persecution as an Ahmadi in some other part of Pakistan can reasonably be expected to relocate to Rabwah. It may be that he can go to Rabwah for a short time. It may be that for that short time he will be safe. But, save in exceptional circumstances, for example if he has family or relatives in Rabwah, despite the majority of inhabitants there, he may not in fact be reasonably practicably able to live there and, if he does, he will be no safer than anywhere else: because the governmental, official structure and seat of power is the same as elsewhere in Pakistan and the fundamentalist anti-Ahmadi religious group, the KN, is as active there as anywhere else, if not more so."

25. The Secretary of State responded to that claim emphasising paragraph 26 of the adjudicator's decision and in particular that:

(i) "It is clear that he moved from Rabwah to Karachi to progress his education and to take advantage of work opportunities. It was not because he was persecuted in Rabwah."

(ii) "The physical ill-treatment he claims to have suffered was at the hands of the police rather than the Khatame Nabbuwat."

The Secretary of State then pointed out that the Immigration Appeal Tribunal in IA also found that:

(i) in [4], "Ahmadis in Pakistan are subject to more than occasional outbursts of persecution from Sunnis particularly acting under the auspices of the body called the Khatame Nabuwwat (KN). … But it is the activities of that organisation, the KN, which form the basis of many claims of persecution by Ahmadis. The organisation has branches throughout Pakistan and in particular throughout Punjab province and, specifically, there is a strong branch in Rabwah because, although ninety-five per cent or more of the population are Ahmadis, there is a minority who are not Ahmadis and Rabwah is the place where Ahmadis can evidently be found if there should be anybody who seeks to take action against them."

(ii) At [6], "Thus the position has sometimes been, in Ahmadi cases, that a person has claimed to be a follower of the religion; has been therefore assumed for the reason that we have already indicated to be a person who will attempt to convert others; has been at risk from activities of the KN; even if his conduct was clearly not illegal he has been at risk of unmerited prosecution against which defence would be difficult; there has been the further risk of illegal or violent activity by the KN."

(iii) At [30], "… On the findings of fact that the Immigration Judge made he should have recognised that the risk from the KN was as real in Rabwah as it was elsewhere in Pakistan …"

The Secretary of State therefore concluded in paragraph 13 of his decision letter that as the appellant was found credible of persecution in the hands of the police and not from Khatame Nabbuwat as was the case in paragraphs 4, 6 and 30 of IA, the appellant's circumstances differed from that case and it did not apply to the appellant.

26. Like the Deputy Judge, I am not persuaded that the Secretary of State was justified in saying that IA did not apply to the appellant because he was ill-treated by the police and not the KN. The distinction between persecution by the extremist KN and the police is a flimsy one. Furthermore on one reading of the decision he was beaten in Karachi by the extremists. But the matter does not end there.
27. The appellant now submits that the re-assessment of Rabwah in IA presents a radically different picture from the one found by the adjudicator in paragraphs 30 and 31 of his determination and on this ground alone the Secretary of State's conclusion cannot stand. I also see the force of that argument. But that is not the end of the matter. Rabwah may not be the safe haven it was once thought to be but, as this Court pointed out when IA was appealed, what the IAT meant was that "Rabwah does not necessarily constitute a safe haven for every Ahmadi," see [17] of our judgment reported at [2008] EWCA Civ 580. Thus at [19] Sedley L.J., giving the judgment of the Court of which I was a member, said:

"That reasoning [of the IAT in IA] … proceeds by the following steps:

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

(b) 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.

(c) 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.

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

(e) 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."

28. As the issue must be determined case by case with each case depending on its own facts, the Secretary of State was fully entitled to conclude that it was safe for this appellant to relocate in Rabwah because, as the adjudicator found:

(i) at [26], "It is clear that he moved from Rabwah to Karachi to progress his education and to take advantage of work opportunities. It was not because he was persecuted in Rabwah."

(ii) at [28], "I do not find that he was particularly conspicuous to religious extremists because of his religious activities per se – or would be now if he returned and resumed the same level of activities."

(iii) at [28], "His evidence of his activities in Pakistan do not indicate that he was a high-profile preacher who would attract attention as a result of proselytising his beliefs. I did not find on his evidence that he had a prominent role as a preacher with a significantly high profile that would call particular attention of religious extremists to him. … I do not find a real likelihood that he had a specific role of a preacher of the Ahmadi faith, over and above what every Ahmadi has a duty to do."

29. Given that low profile and the comparatively low level of persecution over the many years, it was not irrational for the Secretary of State to conclude that an Immigration Judge would not take a different view of the prospect of safe relocation in Rabwah from that in fact taken, albeit for different reasons, by the adjudicator, Mr Strowger.
30. Ground 3: this ground alleges that the Secretary of State was not reasonably entitled to conclude that the appellant could relocate to any location other than Karachi and Sheikhupura and erroneously relied on the Tribunal's Country Guidance decision in MJ and ZM. Even if the Secretary of State was reasonably entitled to reach such a conclusion, it did not follow that there was no realistic possibility that an Immigration Judge might not hold otherwise because:

"i. The fact that the appellant and his family have been targeted in more than one town in Pakistan by non-State agents connected to extremist groups itself suggests that they are likely to be known or to become known as previous targets of non-State agents who themselves are likely to have national connections which bring this information to light, and

ii. Because the appellants in MJ and ZM had suffered ill-treatment at the hands of non-State agents whereas the appellant's case involves not merely past ill-treatment by non-State agents but also ill-treatment from organs of the State, namely the police, and a future risk of ill-treatment from both non-State and State organs (note the appellant's case as to continuing police interest and accordingly the risk of institutionalised or national interest, which, having referred to the comments made by the Tribunal in IA about the difficulties in Rabwah, may well be enough to persuade an Immigration Judge that this particular appellant cannot be safely expected to go there)."

31. The appellant's representation to the Secretary of State was that in the light of the Country Guidance case law he was an exceptional Ahmadi who could not safely return to his home area and is unable to relocate in Rabwah. The Secretary of State's response was that he had the option to relocate anywhere in Pakistan, apart from Karachi and Sheikhupura which were locations where the adjudicator had found that he may have suffered persecution. In [16] the Secretary of State asserted:

"Furthermore as you stated in paragraph 8C of your letter: 'He is an exceptional Ahmadi who cannot return safely to his home area and is unable to relocate to Rabwah'. Your client was born in Jaranwala where he spent most of his life. He then moved to live in Rabwah and as noted paragraph 22 of the determination promulgated, the adjudicator states: 'However he gave no evidence of having been persecuted in Rabwah, he moved there to Karachi for his education and because of work opportunities – in reply to question 9 of the interview he said he moved to Karachi because there were no job opportunities in Rabwah'. Your client did not state that he had been persecuted in Rabwah to move to Karachi because there were no job opportunities in Rabwah. In paragraph 4 of the headnote of MJ and ZM … to which you refer in your submissions, the AIT concluded that:

"Where exceptionally the facts of a particular appellant's case indicate that such an appellant cannot be returned safely to their home area, the existence of an internal relocation option, either to Rabwah or elsewhere in Pakistan, is a question of fact in each such appeal [paragraph 4, headnote – emphasis added].

It is not accepted that your client is such an exception that he is at risk in Pakistan as a whole."

32. That was not an irrational conclusion. As already set out, the adjudicator found that the appellant had no high profile as an Ahmadi preacher such as would attract attention from the extremists. On the contrary he was not particularly conspicuous. Regard must be had to the decision in MJ and ZM in which, as the headnote makes clear, it was held that in Pakistan as a whole the number of problems encountered by the Ahmadis is small and had declined since the Musharraf Government took power. Set against the number of Ahmadis in Pakistan as a whole, they are very low indeed. There is, moreover, very sparse evidence indeed of harm to Ahmadis from non-State agents (though rather more anecdotal evidence of difficulties for Christians). The general risk today on return to Pakistan for Ahmadis who propagate the cause 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. Where, exceptionally, the facts of a particular appellant's case indicate that such an appellant cannot be returned safely to their home area, the existence of an internal relocation option either in Rabwah or elsewhere in Pakistan, is a question of fact in each such appeal.
33. On the facts of his particular case, the appellant was born and lived in Jaranwala and did not specifically claim that the loss of his parents' home was the result of the family being Ahmadi. The adjudicator expressly held at [26]

"Whilst I consider there is a serious possibility that the events in Jaranwala occurred – essentially directed against his parents rather than the Appellant who was in his mid-teens when the events occurred. I do not find that those events would lead to a serious likelihood of persecution being directed against the Appellant if he returned there now," (my emphasis being added).

34. He did not suffer persecution in Rabwah and, having moved to Karachi in 1989, he made no reference to any adverse attention from extremists or the authorities until March 1997 even though he was active in the Ahmadi community, particularly in relation to the youth wing, certainly from 1994. The adjudicator accepted that there was a serious possibility that he was persecuted in Karachi because of his Ahmadi faith but he made no findings as to whether or not he was persecuted for a Convention reason in Sheikhupura where he moved on leaving Karachi. Such trouble as he experienced there may well have been because he antagonised business rivals. It did not suggest any link with the persecution he claims occurred in Karachi. Although the adjudicator found [29] that "there is a serious possibility he would suffer such treatment again if he returned to those parts of Pakistan where Ahmadi are in a minority", that view has to be read in conjunction with the earlier finding that there was no persecution in Jaranwala and in the light of the subsequent Country Guidance in MJ and ZM set out above.
35. Against that background the Secretary of State was entitled to conclude that the appellant was not such an exceptional Ahmadi that he was at risk in Pakistan as a whole.
36. As for the arguments addressed to us by Mr Gill, I prefer the answers proffered by Mr Singh. There was no evidence that the appellant and his family had been targeted in more than one town in Pakistan by non-State agents connected to extremist groups. There was no evidence of the alleged continuing police interest in him or that there is some computer link to him. Indeed it was not alleged before the judge that he could be identified from computer records and this is a completely new allegation not previously made.
37. In the light of the adjudicator's determination that he would not be at risk in Jaranwala "if he returned there now" and in the light of the subsequent Country Guidance which makes it clear that it cannot be assumed that an applicant who is at risk in one part of Pakistan where Ahmadis are in a minority is automatically at risk everywhere in Pakistan where Ahmadis are in a minority, I am satisfied that there is no realistic prospect of an Immigration Judge finding he is at risk of persecution in the whole of Pakistan even if, which is not accepted, there is now a risk for him in Rabwah. The question of whether he is at risk in the whole of Pakistan is one of fact and he has produced nothing to the Secretary of State, to the judge or to us to support that proposition. His ill-treatment in Karachi and, if it be so, in Sheikhupura was localised. There was no "institutional pursuit" of the appellant by the extremists or the police. The established facts do not give rise to a fear of persecution in Jaranwala. There was no evidence to show he would be at risk in Jaranwala. There is, therefore, no proper ground for submitting that an Immigration Judge would today find that he is at such risk in Pakistan as a whole.

Conclusions

38. That might be thought to be enough to dispose of this appeal. But the carousel is kept turning by Mr Gill's newest submission made to us for the first time. This new case is that the Secretary of State and the judge should have applied the learning from the Supreme Court in HJ (Iran) (FC) v the Secretary of State for the Home Department [2010] UKSC 31. That case concerned a gay man who, if he lived openly would be liable for persecution in his country of nationality. In such a case the Tribunal has to consider what the individual applicant would do if he were returned to that country. If he would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by living "discreetly". If, on the other hand, the Tribunal concluded that the applicant would in fact live discreetly and so avoid prosecution, it must go on to ask itself why he would do so. If he chose to live discreetly simply because that is how he would wish to live, then he has no well-founded fear but if the material reason for his living discreetly on his return would be a fear of persecution which would follow if he were to live openly as a gay man, then his application for asylum should be accepted. Mr Gill submits that in this case the appellant should not be required to lie to conceal his Ahmadi faith. He should not be expected to deny his faith and live a lie. He was thus entitled to our protection.
39. If and in so far as this was a new submission, it should not be entertained by us. The judgment of the Supreme Court was given on 7th July, over a year after the judge's decision and 18 months after the Secretary of State's decision. They cannot fairly be blamed for failing to take account of it. For that reason I was disinclined, as I said in the course of argument, to entertain this new point but Mr Gill, attractively and persuasively as ever, persisted. So for what it is worth I will express my view about it. In my judgment it takes the case no further. The appellant's own evidence was that, as an Ahmadi, he would continue preaching because "it was as important to him as reading and it was for every Ahmadi to preach their religion". The adjudicator accepted that the appellant would continue preaching, that being his duty as it is for every Ahmadi – see [28] of the adjudicator's determination. This is a case where the appellant simply would not feel able to lie in order to escape persecution. But it is a case where on the adjudicator's findings he did not have a prominent role as a preacher, he did not have a significantly high profile such as would draw the attention of the religious extremists to him: he was not particularly conspicuous. It is for those reasons that the persecution he suffered was comparatively limited and why he was not thought to be at risk in Rabwah or in Jaranwala. A reference to HJ (Iran) adds nothing to the case.
40. I would therefore dismiss this appeal. It is time the music stopped and the merry-go-round stops turning. The Secretary of State concluded his letter of 27 November 2008 saying:

"I must remind you that your client has no basis to stay here, however arrangements will not be made to remove your client to Pakistan while his application for judicial review is ongoing."

His claim for judicial review is now dismissed. Enough of the whirligig. The Secretary of State is now entitled to take steps to remove him.

Lord Justice Tomlinson:

41. I agree.

Sir Mark Potter:

42. I agree that the appeal should be dismissed for the reasons given by Lord Justice Ward.