England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/07/2016

His Honour Judge Anthony Thornton QC:

Introduction

1. I will refer to the first claimant as Abdul and to the second as Rashida. Abdul was born in December 1952 in Pakistan and Rashida in March 1955 also in Pakistan. They were married in Pakistan in January 1980. It is now accepted by the Secretary for State for Home Department ("SSHD") that both were at all material times of the Ahmadi faith having been born into families of that faith. The SSHD now also accepts that if either claimant is now returned to Pakistan, each is to be regarded as wishing and intending to practise their faith and to be considered to be at risk of persecution. Accordingly, by two decisions dated 27 January 2014, each was granted asylum by the SSHD for five years because they were in need of international protection.
2. These two consolidated claims for judicial review were initially filed on 21 October 2013 claiming their release from immigration detention, a declaration that their detention was unlawful and damages for unlawful detention. Abdul and Rashida had originally been detained on 9 July 2013 at their port of entry into the United Kingdom on their arrival there from Pakistan which they had fled from fearing religious persecution based on their Ahmadi faith. They were detained until released on bail on 22 October 2013. This claim has been continued as a claim for damages for unlawful detention for the period of 106 days between 9 July and 22 October 2013.

Ahmadi persecution in Pakistan and relevant Pakistan Country Guidance

3. The following summary is based on the evidence filed on behalf of Abdul and Rashida in their immigration appeals heard by the First-tier Tribunal ("FtT") in August 2013 that was concerned with the then current situation in Pakistan. Ahmadis are a minority Muslim sect which is significantly discriminated against in Pakistan by law and by many Muslims acting on behalf of state or Muslim bodies or privately. This discrimination arises because many Sunnis have intense and fundamental opposition to the Ahmadi faith and to those who practise it. Many Sunnis of that persuasion have considerable antipathy to any Ahmadi who speaks about their faith or shows any encouragement to those who are thought to be susceptible to conversion to it.
4. A statement from the Asian Human Rights Commission in 2013 that was in evidence in the immigration appeal in these cases recounted how Ahmadis in Pakistan were currently being persecuted by the police and fundamentalist Muslim groups and that that persecution was unabated. In June 2013 alone, two Ahmadis were gunned down by what were officially described as "unknown killers" in Karachi and Lahore and another was shot and seriously injured. In Sialkot, Ahmadis were stopped from offering Friday prayers by police who asked them to produce non-existent "No Objection Certificates" for offering prayers. Since anti-Ahmadi legislation was introduced into Pakistan in 1994, Ahmadis have neither been allowed to build a place for worship nor to pray at home. Their places of worship may not be called Mosques and any holy verses written there are desecrated and erased by the police and by fundamentalists. Many Ahmadi Mosques have been closed down so that communal prayers have had to take place in Ahmadi Community Centres whose comings and goings were continuously watched by Sunni antagonists.
5. Privately, Ahmadis were harassed and threatened by fundamentalists if they were known to practise their religion, however discretely, without fear of reprisals or retaliatory action from the police and threatened Ahmadis found it difficult or impossible to obtain police protection.
6. There was also evidence that practicing the faith of an Ahmadi in both Pakistan and Saudi Arabia involved considerable caution and furtiveness throughout the period from 1994 to 2013. No Ahmadi place of worship could be called a Mosque by law in either of those countries and no preaching, prophesising or discussion about the Ahmadi faith with a non-Ahmadi was permitted. Anyone who attended an Ahmadi Community Centre – usually a misnomer adopted to describe a Mosque - was liable to be harassed or harmed by local people who would observe the comings and goings into and out of Ahmadi Community Centres by Ahmadis and threaten and at times harm them. Local people would also force their way into the houses of suspected Ahmadis to look for copies of Ahmadi-based religious tracts. Anyone suspected of following the Ahmadi faith was liable to be hounded and threatened with physical harm. Given the high incidence of attacks on suspected Ahmadis, it was likely that any significant surveillance would lead to a real risk of being caused harm.
7. The relevant Country Guidance case-law of MN & Others (Ahmadis - country conditions - risk) Pakistan CG [2012] UKUT 389 (IAC) (14 November 2012), which had been promulgated prior to Abdul and Rashida's immigration appeal, provides instructive guidance as to the threats posed to those Ahmadis seeking to practise their religion in Pakistan and as to what an Immigration Tribunal should consider when deciding an appeal involving a claim for international protection or asylum based on threatened Ahmadi persecution in Pakistan:

"2. (i) The background to the risk faced by Ahmadis is legislation that restricts the way in which they are able openly to practise their faith. The legislation not only prohibits preaching and other forms of proselytising but also in practice restricts other elements of manifesting one's religious beliefs, such as holding open discourse about religion with non-Ahmadis, although not amounting to proselytising. The prohibitions include openly referring to one's place of worship as a mosque and to one's religious leader as an Imam. In addition, Ahmadis are not permitted to refer to the call to prayer as azan nor to call themselves Muslims or refer to their faith as Islam. Sanctions include a fine and imprisonment and if blasphemy is found, there is a risk of the death penalty which to date has not been carried out although there is a risk of lengthy incarceration if the penalty is imposed.  There is clear evidence that this legislation is used by non-state actors to threaten and harass Ahmadis. This includes the filing of First Information Reports (FIRs) (the first step in any criminal proceedings) which can result in detentions whilst prosecutions are being pursued. Ahmadis are also subject to attacks by non-state actors from sectors of the majority Sunni Muslim population.

(ii) It is, and has long been, possible in general for Ahmadis to practise their faith on a restricted basis either in private or in community with other Ahmadis, without infringing domestic Pakistan law.

3. (i) If an Ahmadi is able to demonstrate that it is of particular importance to his religious identity to practise and manifest his faith openly in Pakistan in defiance of the restrictions in the Pakistan Penal Code (PPC) under sections 298B and 298C, by engaging in behaviour described in paragraph 2(i) above, he or she is likely to be in need of protection, in the light of the serious nature of the sanctions that potentially apply as well as the risk of prosecution under section 295C for blasphemy.

(ii) It is no answer to expect an Ahmadi who fits the description just given to avoid engaging in behaviour described in paragraph 2(i) above ("paragraph 2(i) behaviour") to avoid a risk of prosecution.

4. The need for protection applies equally to men and women. There is no basis for considering that Ahmadi women as a whole are at a particular or additional risk; the decision that they should not attend mosques in Pakistan was made by the Ahmadi Community following attacks on the mosques in Lahore in 2010. There is no evidence that women in particular were the target of those attacks.

5. In light of the above, the first question the decision-maker must ask is (1) whether the claimant genuinely is an Ahmadi. As with all judicial fact-finding the judge will need to reach conclusions on all the evidence as a whole giving such weight to aspects of that evidence as appropriate in accordance with Article 4 of the Qualification Directive. This is likely to include an enquiry whether the claimant was registered with an Ahmadi community in Pakistan and worshipped and engaged there on a regular basis. Post-arrival activity will also be relevant. Evidence likely to be relevant includes confirmation from the UK Ahmadi headquarters regarding the activities relied on in Pakistan and confirmation from the local community in the UK where the claimant is worshipping.

6. The next step (2) involves an enquiry into the claimant's intentions or wishes as to his or her faith, if returned to Pakistan. This is relevant because of the need to establish whether it is of particular importance to the religious identity of the Ahmadi concerned to engage in paragraph 2(i) behaviour. The burden is on the claimant to demonstrate that any intention or wish to practise and manifest aspects of the faith openly that are not permitted by the Pakistan Penal Code (PPC) is genuinely held and of particular importance to the claimant to preserve his or her religious identity. The decision maker needs to evaluate all the evidence. Behaviour since arrival in the UK may also be relevant. If the claimant discharges this burden he is likely to be in need of protection.

7. The option of internal relocation, previously considered to be available in Rabwah, is not in general reasonably open to a claimant who genuinely wishes to engage in paragraph 2(i) behaviour, in the light of the nationwide effect in Pakistan of the anti-Ahmadi legislation.

8. Ahmadis who are not able to show that they practised their faith at all in Pakistan or that they did so on anything other than the restricted basis described in paragraph 2(ii) above are in general unlikely to be able to show that their genuine intentions or wishes are to practise and manifest their faith openly on return, as described in paragraph 2(i) above.

9. A sur place claim by an Ahmadi based on post-arrival conversion or revival in belief and practice will require careful evidential analysis. This will probably include consideration of evidence of the head of the claimant's local United Kingdom Ahmadi Community and from the UK headquarters, the latter particularly in cases where there has been a conversion. Any adverse findings in the claimant's account as a whole may be relevant to the assessment of likely behaviour on return.

10. Whilst an Ahmadi who has been found to be not reasonably likely to engage or to wish to engage in paragraph 2(i) behaviour is, in general, not at real risk on return to Pakistan, judicial fact-finders may in certain cases need to consider whether that person would nevertheless be reasonably likely to be targeted by non-state actors on return for religious persecution by reason of his/her prominent social and/or business profile."

The brief facts

8. General. I have taken this summary of Abdul and Rashida's relevant historical narrative from their witness statements filed in their respective immigration appeals against the SSHD's decisions refusing each of them asylum. Although relevant parts of this factual background were not accepted by the officers determining their applications or the immigration judge determining their fast track appeals, this factual background may be taken to have been accepted by the SSHD to the extent set out in the subsequent decisions dated 27 January 2014 granting each leave to remain for an initial period of five years.
9. Abdul was born into an Ahmadi family and was aged 60 when his immigration appeal was heard. As a child, he used to write his name as "Abdul Ahmadi". Until he was 21, there were no restrictions in Pakistan on Ahmadis in practicing their religion but in 1973, the Government of Pakistan enacted legislation that severely restricted their ability to practise it. Abdul regularly attended both the Mosque on Fridays and Ahmadi meetings on Sundays before and after this change in the law.
10. Rashida was also born into an Ahmadi family. Abdul and Rashida's families were related, Abdul being Rashida's paternal uncle's son. Her parents arranged for her to marry Abdul and they married in 1980. They had three sons and they lived in Karachi throughout their marriage before leaving Pakistan in July 2013. One of their sons still lives in Karachi, the other two live, respectively, in Germany and Canada.
11. Between 1980 and 1989, Abdul worked in Karachi as a representative for a company that sold cotton products. He then successfully applied for a position as a computer engineer in Saudi Arabia and he moved and worked there for a total of five different companies until June 2013. In that extended period in Saudi Arabia, he returned on about six occasions to Pakistan for family weddings and celebrations.
12. Rashida and their sons moved to Saudi Arabia in 1990 and they returned to Pakistan in 1995 to enable their sons to attend school in Pakistan since children were not permitted to study in Saudi Arabia after Year 10. Abdul remained in Saudi Arabia and Rashida paid an annual visit to Saudi Arabia as was permitted by their family visa. In 2007, she moved back to Saudi Arabia to join Abdul and rented out their family home in Karachi.
13. Abdul and Rashida returned to Pakistan on 16 June 2013. During their respective times in Pakistan and Saudi Arabia, each practised the Ahmadi faith assiduously but that adherence was clandestine given the restrictions and threats in force against Ahmadis. Abdul's stated reason for the couple's return to Pakistan in 2013 was the harassment and threats that they had received from a neighbour who had barged into their house whilst Ahmadi literature that they were reading was lying around openly in the house. This caused him to resign from his post and both of them to return to their previous home in Pakistan.
14. Having returned, they started to practise their faith in Pakistan, in Abdul's case by attending the Ahmadi Mosque or Community Centre twice daily in order to pray for his sons. Both had the firm intention of continuing with their activities associated with their Ahmadi faith including work for the Ahmadi Association and the Jamaat. On 9 July 2013, they left Pakistan for the United Kingdom to seek asylum because they had received threats from Mulvis on at least two occasions which made them fear for their lives.

Abdul and Rashida's involvement in Ahmadi faith activities

15. It is significant that both Abdul and Rashida were actively involved in Ahmadi religious life in, respectively, Saudi Arabia and Karachi between 1995 and 2007 and were also actively involved in Saudi Arabia between 2007 and 2013.
16. From the age of 17 in 1969 until 1994 when the law was changed so as to preclude visible active involvement in the Ahmadi faith, Abdul was an openly practicing Ahmadi who additionally preached, taught the Quran, acted as a Muntazim in charge of boys, attended meetings, travelled to Rabwah two or three times a year and was a very active member of the local Jamaat where his father was also active as its finance secretary.
17. Following the change in the law in Pakistan in 1994, both Abdul and Rashida remained active in pursuing their faith. Abdul, as required by the law, avoided public demonstrations of and public involvement in his Ahmadi faith. Rashida also practised her Ahmadi faith privately, largely through the Jamaat which is an Ahmadi organisation concerned with children, education and women.
18. Soon after his arrival in Saudi Arabia, Abdul became involved with the Saudi branch of the Ahmadi Association. He was finance secretary at the local level between 1990 and 2000 and at the city level between 2000 and 2003 and was general secretary between 2000 and 2007. In his role as general secretary, he arranged meetings and prepared agendas. In 2008, he was elevated to the national level of the Ahmadi Association and raised funds and sent regular reports to the Ahmadi Association's Headquarters that are located in the United Kingdom.
19. Abdul was also a member of the General Body or cabinet of the Ahmadi Association in Saudi Arabia and was a Guide of Tarbiyyat being the body that guides other Ahmadis aged over 40 in the practice of their faith. In addition, he was National Secretary of Tehrike Jahid, responsible for fund raising for Ahmadi faith-based charitable work in Saudi Arabia and Waqfe Jahid, responsible for similar fund raising in Saudi Arabia for Ahmadi faith-based charitable work in Pakistan and India. He held these two posts between 2009 and 2013. These activities were only carried out amongst practicing Ahmadis since any association and fund-raising activities related to his Ahmadi faith were prohibited by Sharia law and severely punishable in Saudi Arabia.
20. Rashida started to work for the Jamaat in the period after marriage and before she left for Saudi Arabia as well as in Saudi Arabia when she was living there. Between 1995 and 2007 she worked in various departments including the children's, general secretary and women's departments in Pakistan whilst bringing up her three sons. In Saudi Arabia, she became the National Secretary for Women's Education and Discipline in 2009 and she was National President of Lajna-e-Maillah of the women's organisation between 2012 and 2013.
21. Both Abdul and Rashida's Ahmadi faith was undertaken in Saudi Arabia in secret. Their sons were often threatened when they were teenagers in Paksistan and their eldest son was not allowed to join the Pakistani Air Force due to his faith. They were, therefore, unable to practise their religion freely and, since 1974, they were in constant fear of being discovered practicing their Ahmadi faith and for the physical safety of both their children and themselves.
22. Both Abdul and Rashida left Pakistan to seek asylum in the UK because they felt strongly that, having been unable to practise their Ahmadi faith openly since 1974, they had to leave Pakistan in July 2013 in a great hurry to seek international protection since they would otherwise be continuously harassed by many in their local community, unable to obtain protection anywhere in Pakistan and in constant fear of death, harm, threats and other reprisals.

Particular acts of persecution since 1974

23. Saudi Arabia. According to both Abdul and Rashida, they were living in Riyadh when, in June 2013, Abdul had to give up his employment and they were forced to leave the country in a great hurry because their neighbours had discovered that they were Ahmadis. This discovery had occurred when they were unexpectedly visited at home at a time that the Ahmadi TV channel was turned on and Ahmadi literature and books were lying openly on the table. The neighbours also discovered that both of them were involved with Jamaat. The neighbours left having informed them that they would be immediately reported to the police and they would then be imprisoned. Abdul and Rashida left Saudi Arabia for their house in Pakistan soon afterwards and arrived home in Karachi on 16 June 2013.
24. Pakistan. About one week after Abdul and Rashida had arrived back in Pakistan, about four Mulvis arrived at their house and threatened Abdul with his life and told him that he should become a Muslim. About 10 to 12 days later, a man came to the house in the night. He was a security guard and he said that he had been sent by a member of Khaam-Nubwat who had told him to warn Abdul and Rashida that they would be its next target. Abdul went to the police the following day who told him that they were not prepared to act or to assist him. Abdul and Rashida decided that they would leave Pakistan immediately. They left on 9 July 2013 and entered the UK the same day using a multi-family visit visa and each claimed asylum on arrival at Birmingham airport, Rashida basing her claim on her being Abdul's dependent.

The Fast Track proceedings

25. Chronology of Abdul and Rashida's DFT proceedings. Both Abdul and Rashida were immediately detained in Yarls Wood IRC and on the same day their asylum claims and the follow-up procedures were placed in the Fast Track ("FT"). They were each given a screening interview and then a full interview. On two dates, the second being 22 July 2013, solicitors on their behalf submitted written representations to the SSHD in support of their claims for asylum. On 24 July 2013, 15 days after their arrival, each was served with a notice of refusal. The SSHD also served reasons for their detention to the effect that they were likely to abscond if granted temporary admission and that their respective claims for asylum could be decided quickly. On 25 and 26 July 2013 respectively, Rashida and Abdul lodged separate notices of appeal against the SSHD's refusals of asylum. On 29 July 2013, their solicitors applied for their cases to be taken out of the FT. The application was made under Rule 30 of the FT Rules that permitted an immigration judge to order the transfer of a FT case out of the FT due to the evidential complexities of the case that prevented a case being decided quickly and to the impossibility of determining their cases justly without further evidence being obtained. This application was refused by FtT Judge Appleyard on 30 July 2013. The application was renewed on 2 August 2013 before FtT Judge Herlihy and was refused again.
26. Abdul and Rashida's appeals were listed for hearing by the First-tier Tribunal ("FtT") on 2 August 2013. When the hearing was called on, their legal representative applied again for their cases to be taken out of the FT and for an adjournment and these applications were dismissed. The appeals were then heard and were dismissed in decisions that were made on 6 August 2013 and sent out by the FtT on 6 August 2013.
27. On 9 August 2013, their applications for permission to appeal to the Upper Tribunal ("UT") were lodged with the FtT and were dismissed. On 12 August 2013, applications for permission to appeal were lodged with the UT and on 13 August 2013 the UT granted them permission to appeal on the grounds of errors of law. Each applied for bail in applications dated 19 August 2013. These applications were withdrawn on 21 August 2013 due to the practical difficulties in the time available of obtaining sufficient evidence to establish the prospective sureties' ability to pay and their entitlement to allow Abdul and Rashida to stay with them.
28. The UT appeal hearing took place and on 21 August 2013. Their application for temporary admission was also heard and refused. The UT dismissed the appeal in a decision served on 6 September 2013. An application for permission to appeal to the Court of Appeal was lodged in time and was dismissed by the UT on 19 September 2013. A renewed application was lodged with the Court of Appeal which was allowed in a written reasoned decision dated 24 October 2013.
29. In addition to these various steps, three further requests for release from immigration detention were made to the SSHD, all of which were refused. A further application for bail was lodged but was withdrawn on the day of the hearing to enable Abdul and Rashida's legal representative to consider the decision of the UT which had been received on the morning of the bail hearing. A Pre-action Protocol letter was sent to the SSHD notifying her of their intention to seek judicial review of their continued immigration detention. This was not pursued since they were released from detention on 22 October 2013.
30. On 27 January 2014, the SSHD granted Abdul and Rashida leave to remain for five years and, on 28 April 2014, each of their appeals to the Court of Appeal was allowed by consent.
31. Abdul and Rashida's ill-health. Whilst in detention, Abdul was aged 60 and Rashida 58. At that time, neither was in good health. Abdul had a long-term heart condition and had suffered from angina attacks in the two-year period prior to his detention. Whilst in Yarls Wood IRC, he was referred to hospital and he underwent major heart surgery on 16 October 2013 requiring lengthy recuperation. Rashida suffered a seizure and was placed in isolation at Yarls Wood IRC due to a suspected airborne virus. She underwent a CT scan at Bedford Hospital. It followed that for parts of the period that they were in detention, neither was fit to fly.

Abdul and Rashida's claim for asylum and the decisions refusing it

32. Introduction. As can be seen from the passage from MN quoted above, Abdul and Rashida had to establish that each was an Ahmadi and that each had practised their faith in the manner identified in paragraph 2(i) of that passage. They also had to establish that they intended to continue to practise their faith and as a result were in need of international protection and asylum.
33. Abdul's particular case. Abdul's particular case was to the effect that he had been born into an Ahmadi family whose members had always actively practised their faith with deep commitment. Abdul had done the same during his schooldays, as a student at Karachi University and on graduation between 1969 and 1974. He had in that period preached and taught the Ahmadi faith to boys and young men, had attended Ahmadi meetings and had been active in his local Jamaat.
34. These activities were legal. However, the law changed in 1974 in Pakistan and for 15 years he was forced to practise his faith in Pakistan with the same intensity but in secret. This practice continued throughout his time in Saudi Arabia between 1989 and 2013 where religious intolerance towards Ahmadis was also both pronounced and backed by the law.
35. Throughout that lengthy period, he was always at risk of being found out and of being the subject of reprisals. He was, despite the risks, very heavily involved in the organisation, fund-raising and supervision of the Ahmadi faith both locally and internationally as a result of his deep commitment to that faith. His situation worsened considerably as intolerance intensified in both Saudi Arabia and, on his return in June 2013, in Pakistan and it had become very clear in the very short time that he was living back in Pakistan in June and July 2013 that his life and well-being were severely threatened and that he would be unable to practise his faith safely.
36. Rashida's particular case. Rashida relied on her husband's evidence coupled with her further evidence of her own deep commitment to the Ahmadi faith and her active involvement in that faith. She also relied on her involvement in her local Ahmadi group and its activities throughout the period from her graduation in 1974 until her marriage in 1980, throughout the first phase of her married life whilst living with her husband between 1980 and 1995, her life in Pakistan separated from her husband by his work between 1995 and 2007 and their resumed married life together in Saudi Arabia from 2007 until she fled to the UK with Abdul in July 2013.
37. Abdul and Rashida's joint case. It was part of each of their cases that their marriage remained and remains strong and with deep personal commitment, a commitment cemented by their shared Ahmadi faith and by their involvement in Ahmadi faith-based ways of expressing it. They also contend most strongly that they have been active in pursuing their faith in many ways involving not only private faith-based activities but in active involvement in the Ahmadi communities in which they have lived in both Pakistan and Saudi Arabia. Throughout their marriage, they have been careful not to publicise their adherence to their faith and were successful in doing so until 2013 despite the growing state-sponsored and private intolerance towards Ahmadis in both Pakistan and Saudi Arabia.
38. They rely on the twin outing of their faith in both Saudi Arabia and Pakistan in quick succession. These events brought their faith into the open and put their lives at significant risk and in need of international protection. However, without either or both of these events, the worsening situation for security and safety for each of them, particularly in Pakistan, meant that their lives would still have been at risk unless they had sought international protection outside both those countries.
39. It was not therefore necessary for either of them to prove that they had left Saudi Arabia as a result of threats or reprisals related to their Ahmadi faith that had triggered their leaving Pakistan for the UK with the intention of claiming asylum. These facts, if established would of course have added further weight to their respective claims that they were in need of protection. These facts were therefore facts capable of supporting a sufficient case for asylum but it was not necessary for Abdul and Rashida to establish them if they could otherwise establish their cases for asylum with other evidence.
40. However, it would always have been difficult for each of them to establish the credibility of their respective cases without extensive corroborative evidence from independent witnesses and authenticated documents and by way of in-country reports and relevant Country Guidance. Such evidence was readily available but the task of assembling it in a credible and acceptable form would have been considerable. Moreover, the necessary pre-hearing work would have been extensive and time-consuming and would have required considerable litigation experience coupled with detailed knowledge of the relevant immigration law and practice as well as of the relevant Country Guidance.
41. The initial claims and their refusals – SSHD decisions. Abdul and Rashida were not legally represented during their screening interview although they had legal representation at the substantive interview, these interviews took place separately. There was no obvious or glaring divergence between them in their respective interviews. They were fortunate in being able to contact experienced asylum solicitors at short notice who made two sets of written submissions on their behalf. The legal representative who drafted these representations had good knowledge of the then recently decided Country Guidance case of MN and the submissions were structured around the need to establish that each was a genuine adherent of the Ahmadi faith and that each had to show that they were in genuine need of international protection because it was of particular importance to them to publicly continue to carry out their faith with the result that they would be persecuted if they were not granted asylum. It was not, of course, possible for the submissions to provide much factual detail let alone independent corroborative evidence given the short time available to prepare them.
42. The refusal decisions in both cases were based on an almost complete rejection of each of their cases. All that was accepted was that both were Ahmadis. Neither of the groups of events showing that Abdul's and Rashida's practising of the Ahmadi faith had been outed – to use jargon - in relation to their Ahmadi-faith based practice was accepted as being credible. A significant reason for that lack of acceptance was because their evidence was not supported by genuine original documents. These were available but time pressure had prevented them from being obtained.
43. Ahmadiyya Muslim Association evidence. Abdul was able to place in evidence for his and Rashida's appeals against those decisions a letter from the Ahmadiyya Muslim Association UK dated 26 July 2013 that referred to evidence from the Saudi Arabian Ahmadi community that supported Abdul's evidence that he had been an active member of that community in Saudi Arabia. This evidence was provided in second-hand hearsay form and was not supported by corroborating evidence whether in original documents or in copies of originals.
44. FtT appeal. At the hearing of their joint appeal, the SSHD accepted that both Abdul and Rashida had been involved in Ahmadi organisations in Saudi Arabia. They contended that their cases should be taken out of the FT but the FtT held that the appeals could be disposed of fairly without an adjournment and that there was no indication that the additional evidence that they wished to obtain if an adjournment was granted could make any significant difference to the result of their appeals. In the decision dismissing their joint appeals promulgated on 6 August 2013, the FtT found that the evidence of each of them concerning the reasons for their departure from Saudi Arabia and Pakistan and that they had openly practised their Ahmadi faith in Saudi Arabia was not credible. The FtT also considered that neither Abdul nor Rashida had shown that they had substantial grounds for believing that they faced a real risk of serious harm if they remained in Pakistan.
45. UT appeal. In their undated "Grounds of Appeal t the Upper Tribunal for Permission to Appeal from the First Tier Tribunal" permission was sought to appeal on five grounds. Permission was granted on 13 August 2013. UTJ Lane considered and dismissed all grounds in his decision of 5 September 2013.
46. Permission to appeal to the Court of Appeal. Abdul and Rashida then applied for permission to appeal to the Court of Appeal. They appealed on the basis that (a) the FtT Judge's finding (as upheld on appeal) that Abdul had not demonstrated that it is his genuine desire to manifest religious faith in a manner that would be likely to attract persecution in Pakistan could not be sustained and (b) the FtT Judge failed to have regards to various aspects of the Appellant's evidence (exacerbated by the fact that the SSHD refused to take the Appellants out of the DFT).
47. Permission granted. In a written decision dated 30 October 2013 which was as succinct as it was powerful, Sullivan LJ granted both Abdul and Rashida permission to appeal. It is most helpful to set out his decision in full:

1. "1. This is a troubling case. There seems to me to have been no dispute that before the FtT that [Abdul and Rashida's] Ahmadi beliefs were genuinely held by them (cf paragraph 10 of the UT's determination).

2. The FtT's conclusion (paragraph 59 determination) that [Abdul and Rashida] had not demonstrated an intention to practise their faith openly appears to have been based, at least in part, upon the finding that they had not previously demonstrated any open practice of their faith, but that finding does not accord with [Abdul's] witness statement which he had adopted in his oral evidence (paragraph 32 determination) and his chronology, in which he said that prior to the more restrictive legal regime introduce in Pakistan in 1973 he did preach and teach, went to the mosque, attended meetings and was a very active member of the Ahmadi community. While the FtT did not believe [Abdul's] accounts of the events in 2013, it did not reject [his] unchallenged account of events in Pakistan prior to his leaving for Saudi Arabia in 1988.

3. Insofar as the FtT relied on the fact that [Abdul and Rashida] had privately practised their Ahmadi faith in Saudi Arabia, their explanation that this was "due to restrictions against religious minorities in Saudi Arabia" appears to have been accepted.

4. In his witness statement, [Abdul] explained that he would "not attempt to hide his faith" (see paragraphs 2 – 14). Even if it is accepted that the FtT rejected this evidence (see the decision in paragraph 10 of the UT's determination) the FtT arguably did not engage with the point made in paragraph 3(ii) of the Country Guidance in MN: was the reason why [Abdul] would not openly practice and manifest aspects of his faith on return to Pakistan a desire to avoid the risk of persecution, as was arguably the position while he lived in Saudi Arabia?

5. I am satisfied that the Grounds of Appeal have a real prospect of success and that if the FtT did err the potential consequences for [Abdul and Rashida] who do genuinely hold Ahmadi beliefs are so grave that there is a sufficiently compelling reason to grant permission for a second appeal."

48. Bail granted. Abdul and Rashida were released on bail on 22 October 2013 - following the information from the Court of Appeal that permission to appeal had been granted. They had both been in detention since 9 July 2013, a total of 106 days.
49. Asylum granted. In two decisions both dated 27 January 2014, the SSHD – no doubt having read and taken on board the permission decision of Sullivan LJ – granted both Abdul and Rashida asylum so as to provide each with international protection on account of their religion. This was manifested in a grant to each of five years leave to remain with the opportunity to apply for further leave to remain and ultimately for indefinite leave to remain and British Citizenship if no impediments to those further developments had arisen in the meantime.
50. The core reasoning of each decision was identical and was as follows:

"[Paragraphs 5 & 6 of [MN] explain the two steps to be taken in Ahmadi cases. [Abdul and Rashida] have already been found to be Ahmadis. They have given a consistent account of their involvement with the Ahmadi faith in Saudi Arabia. The correspondence from the Ahmadiyya Muslim Association UK confirms [Abdul's] active involvement with his faith. [Abdul and Rashida's] activities fit in to the description given in paragraph 2i) of MN. Continuing to practise his faith in Pakistan will put them at risk of both ill-treatment from society and Khatme Nabuwaat and of possible persecution. It is not reasonable to expect them to compromise their beliefs by no longer engaging in their activities."

51. Abdul and Rashida's Court of Appeal decision. Following these grants of asylum, Abdul and Rashida consented to their appeals being allowed by consent in an order made by the Court of Appeal and dated 28 April 2014.

The issues

52. There are four issues for me to decide:

(1) Should Abdul and Rashida be permitted to rely on the decision of the Court of Appeal in R (Detention Action) v SSHD [2014] EWCA Civ 1634 despite it being decided after the hearing had been concluded and judgment was awaited and without an amendment to their pleaded case having been formulated;

(2) If so, is the effect of that decision that their detention was wrongful;

(3) If their detention was wrongful, can it be justified on other grounds;

(4) If their detention was wrongful, for what period may damages for wrongful detention be awarded.

Issue 1

53. Introduction. The claims brought by Abdul and Rashida are for damages for wrongful detention from 9 July to 22 October 2013, a total of 106 days. The claims were first made in their solicitor's pre-action protocol letter dated 25 September 2013 and in the subsequent judicial review claims issued on 21 October 2013. These claims were based on the assertion that they were detained for all of their period in detention unlawfully and that they should have been released on bail from the outset. However, their solicitor reserved the right to challenge their detention on the basis of a generic challenge to the FT process.
54. By the time these claims were heard in December 2014, the Court of Appeal was just about to hand down judgment in the appeal in the first of the two relevant decisions of the Court of Appeal in R (Detention Action) v SSHD [2014] EWCA Civ 1634. That decision was handed down on the day following the hearing.
55. Counsel for Abdul and Rashida made it clear at the hearing that he relied on that decision at first instance and applied for permission to make submissions in writing on the effect of the judgment in the Court of Appeal once it became available. I granted permission. Submissions were sent into the Administrative Court but, due to administrative error, these submissions were not received by me until after I had become aware of a pending decision of the Court of Appeal in the second of the two relevant decisions of the court of Appeal in R (Detention Action) [2015] EWCA Civ 840. Judgment in that latter case was handed down on 29 July 2015. I then asked the parties to prepare and submit written submissions on both judgments and these were received by me in February 2016.
56. Both Detention Action decisions are highly relevant to these claims since they both address the question of whether the FT procedure is so inherently unfair that it was unlawful. Thus, both decisions relate to the issue of whether the FT procedure was generically unfair and unlawful. This was the issue which was reserved by the solicitor acting for Abdul and Rashida in their original claim, which was referred to at the hearing of this claim, which was ordered to be the subject of post-hearing written submissions once the Court of Appeal judgments in the first Detention Action became available and was again ordered to be the subject of written submissions once the Court of Appeal judgments in the second Detention Action became available.
57. The effect of both Detention Action decisions read together, and in particular the effect of the second Detention Action decision is that the entire FT process is generically unfair and that in consequence asylum seekers who wish to challenge the refusal to grant them asylum should not be placed in the FT process but should have their asylum claims dealt with under the normal procedures applicable to asylum claims.
58. It is also highly material to consider what happened following the decision at first instance in the second Detention Action decision which was subsequently affirmed by the Court of Appeal. On 2 July 2015, the Minister for Immigration in a written statement to Parliament announced the suspension of the FT procedure. The procedure has not been reinstated following the Court of Appeal decision in the second Detention Action and it now appears that it will never be reintroduced – at least in the form that led to the decision in the second Detention Action appeal.
59. Discussion. It follows that both Abdul and Rashida have always maintained a claim based on the generic unlawfulness of the FT procedure, that that issue was raised at the hearing and in subsequent submissions about two successive Court of Appeal decisions that addressed that issue that I ordered and which were provided and that the FT procedure is now known to have been unlawful from the outset, to have been unlawful in the ways it was used in their cases and to have been suspended indefinitely by the relevant minister as a result of the two Court of Appeal decisions. It would, in those circumstances be grossly unjust to deprive Abdul and Rashida of the opportunity of relying on those decisions and, in particular, on the second Detention Action decision.
60. The SSHD took a further procedural objection to the effect that Abdul and Rashida have not sought to amend their pleadings to address this issue. That objection has no substance since the issue is simple to state, requires no additional pleading, was raised in the original claim and a formal amendment is all that would be needed in any event.
61. The SSHD also contended that Abdul and Rashida's cases were dealt with under an earlier version of the FT Rules than were applicable to the second Detention Action case and that the issues raised by that decision are unduly complex. However, the two schemes are identical in the material respects that I am concerned with, the relevant timescales are the same and the considerations leading to the decision in that case are equally applicable to the FT scheme applicable to Abdul and Rashida's cases. Furthermore, the issues of law arising in my consideration of the effect of the second Detention Action case are simple to express and apply.
62. Conclusion. I conclude that Abdul and Rashida may rely on the second Detention Action case despite it having been decided some months after the hearing was concluded in their cases but before judgment had been handed down. That conclusion arises because the issue decided in the second Detention Action case has always been in play, have been the subject of detailed submissions and may be raised without a formal amendment to the pleadings since any pleading raising the issue would be short and would not add anything to the case.

Issue 2

63. Introduction. This issue raises the question of the effect of the second Detention Action decision on the claims in this case for damages for unlawful detention.
64. The following passages from the judgment in the second Detention Action case set out the relevant differences between the applicable timetable provided for in the later version of the FT Rules applicable to that case and the FtT Principal Rules that were applicable in both cases. The same FT time periods were applicable to both sets of cases even though there was a different and earlier version of the FT Rules in play in Abdul's and Rashida's cases. The following passage from the judgment in Detention Action sets out a tabular comparison between the timescales applicable under the applicable FT Rules and the FtT Principal Rules. I have annotated this schedule by inserting in bold italics the timescales that were actually applied in Abdul's and Rashida's cases. These timescales were all within the requirements of the prevailing FT Rules applicable in Abdul's and Rashida's cases and the replacement FT Rules applicable to the case considered in the second Detention Action decision.
65. The relevant part of the judgment of the Master of the Rolls, Lord Dyson, which sets out this schedule is as follows:

"12. The material differences between the FTR and the Principal Rules including those differences between the Fast Track and ordinary provisions of the Tribunal Procedure (Upper Tribunal) Rules 2008 can be tabulated as follows …"

Stage	Fast-track Rules	Principal Rules
Notice of Appeal	Two working days from notice of decision (Schedule, Rule 5) Abdul: Notice of Appeal served one working day from notice of decision Rashida: Notice of Appeal served two working days from notice of decision	14 days from notice of decision (2014 Rules, Rule 19)
Service of Respondent's Bundle on FTT	Two working days from service of notice of appeal (Schedule, Rule 7) Not known. However, the Respondent appears to have complied with this two-working day requirement	28 days from receipt of notice of appeal (2014 Rules, Rule 24)
Hearing of appeal by FTT	Three working days after service of Respondent's Bundle on FTT (Schedule, Rule 8) Not known. However, the FtT appears to have complied with this requirement since the hearing took place seven working days after the service of Rashida's notice of appeal and, apparently, three working days after the service of Respondent's bundle	No fixed time limits
Adjournments	Maximum of 10 working days permitted (Schedule, Rule 12) Had an adjournment been granted, the maximum permitted period of ten working days would have been applicable	No fixed time limits (2014 Rules, Rule 4(3)(h))
Service of Determination by FTT	Two working days after hearing (Schedule, Rule 10) The period of two working days was complied with by FtT	No fixed time limits (2014 Rules, Rule 29)
Application to FTT for Permission to appeal to UT	Three working days from service of determination (Schedule, Rule 11) The period of three working days was complied with by Abdul and Rashida's solicitor	14 days after service of the determination (2014 Rules, Rule 33)
Renewed application to UT for PTA	Four working days after FTT sends notice of refusal of leave (UT Rules, Rule 21(3)(a)(ii)) The period of four working days was complied with by Abdul and Rashida's solicitor	14 days after FTT sends notice of refusal of leave (UT Rules, Rule 21(3)(a)(i))
Hearing of appeal by Upper Tribunal	Two working days after permission granted if decision granting permission sent electronically or delivered personally, otherwise five working days.  (UT Rules 36A) The period of five working days was complied with by UT	No time limits.
Notice of appeal	One day's notice of hearing date. (UT Rules, Rule 36(2)(aa)) The period of one day's notice was complied with by UT	At least 14 days notice of hearing date required. (UT Rules, Rule 36(2))

The material part of the reasoning and decision set out in the judgment is as follows:

"42. I am, however, satisfied that rule 14 does not provide the complete answer to the claimant's case that at first sight it seems to offer. First, it may be difficult for the appellant to persuade the tribunal that the appeal cannot be justly determined in the limited time available. There may not have been sufficient time to complete inquiries into possible further evidence. An appeal is bound to seek to challenge the reasons given by the SSHD for refusing the asylum claim. As I have said, many refusals turn on adverse findings on the appellant's credibility. The focus of the preparation for an appeal will often, therefore, be on the search for evidence to corroborate the appellant's account in rebuttal of the adverse findings. The period of 7 days between the date of the refusal decision and the hearing of the appeal is bound to be insufficient in a significant number of cases. I have referred to the difficulties facing legal representatives who have to take instructions from clients who are in detention. It may not be possible for them to say whether the further inquiries that they wish to make are likely to be fruitful. In such a situation, it may be difficult to persuade the tribunal that there are cogent reasons to transfer a case out of the fast track.

43. Secondly, the fact that the opportunity to seek a transfer out of the fast track only arises at the appeal hearing itself has the consequence that the appellant is required to argue that the evidence that has already been submitted in support of the appeal is insufficient. The appellant is placed in a very difficult position. The stronger the case he seeks to advance for a transfer on the footing that there are material gaps in his evidence which he needs time to fill by obtaining further evidence, the more he damages his prospects of succeeding in his appeal if the tribunal refuses to transfer the case out of the fast track. In short, in order to explain why the time scales are unjust, the appellant has to identify all the evidential gaps in his case. But if the application to transfer is refused, the appellant will then have to persuade the judge that the appeal should be allowed notwithstanding these gaps. I accept the submission of Ms Lieven that this puts the appellant in an invidious position and is unfair and unjust.

44. Thirdly, it is likely (to put it no higher) that judges will consider the FTR time limits to be the default position. The rule 12 power and the rule 14 duty are mechanisms which are intended to ensure that the tight time limits imposed do not produce injustice in individual cases. But the expectation must be that the time limits will usually be applied. Otherwise the object of the FTR would be defeated. There is bound to be a reluctance to postpone or transfer an appeal on the day of the hearing when time has been allocated for the full hearing of the appeal and the parties and witnesses have come to give their evidence and advance their submissions. The tribunal would be likely to be more sympathetic to an application to postpone or transfer out if it were made at a case management hearing before the date of the hearing. But the timescales of the FTR do not permit this. We were told that typically the FTT hears two or three asylum appeals per day. Rule 10 requires the decision and the reasons for it (which may be extensive and detailed) to be given no later than 2 working days after the day of the hearing. I have little doubt that the judges of the FTT know that, if they were regularly to adjourn or transfer cases out of the fast track, this would be inconsistent with section 22(4)(e) of the 2007 Act which requires that the rules, where appropriate, confer on members of the FTT "responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently". As Ms Lieven puts it, by the time of the hearing, the SSHD and the FTT will have prepared for the appeal and there will be a momentum in favour of proceeding with the hearing which it will be difficult for an appellant to stop.

45. To summarise, in my view the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases. For the reasons that I have given, the safeguards on which the SSHD and the Lord Chancellor rely do not provide a sufficient answer. The system is therefore structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficulty of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention. It seems to me that some relaxation of the time limits is necessary, but it is not for the court to prescribe what is required to remedy the problem. A lawful scheme must, however, properly take into account the factors to which I have referred whilst, I acknowledge, giving effect to the entirely proper aim of processing asylum appeals as quickly as possible consistently with fairness and justice.

…

Conclusion

49. For the reasons that I have given, the FTR are systemically unfair and unjust. The appeal must, therefore, be dismissed. The object of the SSHD in placing asylum appeals in the fast track is the entirely laudable one of dealing with them quickly. This is not because she considers that they are all hopeless cases. Far from it. Although many of the appeals are dismissed, many succeed. They are placed in the fast track so that they can be handled quickly and efficiently. But the consequences for an asylum seeker of mistakes in the process are potentially disastrous. That is why section 22(4) of the 2007 Act recognises that justice and fairness should not be sacrificed on the altar of speed and efficiency. As I have explained, the FTR do not strike the correct balance between (i) speed and efficiency and (ii) fairness and justice. It is too heavily weighted in favour of the former and needs to be adjusted. Precisely how that is done is a matter for the TPC and Parliament."

66. Discussion. The reasoning of the Master of the Rolls is applicable in full to the application of the earlier version of the FT Rules in Abdul's and Rashida's cases. The applicable timetable was the same, the tasks to be performed by Abdul and Rashida's legal representative were the same and the type of case was the same. Furthermore, the factual and legal difficulties and the impossibility of adequately and fairly preparing for a FtT appeal were also the same or, possibly, were even more difficult in Abdul's and Rashida's cases.
67. These similarities can be seen by an examination of a summary of the procedural history that I have set out in detail earlier in this judgment. The following conclusions may be drawn from that summary:

(1) The applications for asylum and for international protection from the faith-based persecution of Ahmadis by state-based action and private zealotry were the subject of the Country Guidance case of MN that had been promulgated only 9 months previously. Despite that detailed guidance, which the interviewers, decision-makers and FtT and UT judges deciding the appeals in this case all stated that they had had in mind, the salient requirements identified by that guidance were ignored. This failure is highlighted by the reasoned decision of Sullivan LJ in granting Abdul and Rashida permission to appeal the UT decision to the Court of Appeal. The failure at each previous level of decision-making occurred because of the rushed timetable imposed on each decision-maker by the FT Rules which prevented adequate evidence-gathering, submission drafting, preparation, presentation, consideration and decision-making by all concerned.

(2) The adverse decisions that were made at each level below the Court of Appeal were all based on a minute examination of inadequately prepared secondary parts of Abdul's and Rashida's cases leading to questionable adverse credibility findings which should not have been but were determinative of each decision.

(3) The inadequate preparation of all the required evidence, including the evidence relied on by the decision-makers, occurred through no fault of Abdul and Rashida or of their legal representative. Indeed, the work of their legal representative in preparing and conducting Abdul's and Rashida's representation and the various applications for transfer out of the FT procedure, for an adjournment, for bail and for temporary admission were of an exceptionally high standard. This was particularly so given the impossibly short timescales and exceptionally difficult working conditions governing all of that representative's work. These arose as a result of the decisions taken by the SSHD on 9 July 2013 and not subsequently revoked that Abdul's and Rashida's asylum applications would be dealt with under the FT Rules.

68. Conclusion. The applicable FT Rules were systemically unfair and unlawful due to the inability that they created of a hearing in the FtT or the UT that provided minimum acceptable standards of fairness and which enabled Abdul's and Rashida's cases to be presented fairly and adequately and to be decided following an appropriate consideration of all available evidence.
69. Moreover, the manner in which their cases were considered and the procedure adopted for their cases by both the FtT and the UT was such that, even if the FT Rules were not systemically unfair, they operated in their particular cases so as to prevent them from obtaining a fair hearing.
70. It follows that their asylum applications were referred to a decision-making process that was inherently flawed in all its principal respects and that that process was unlawfully applied and operated. Thus, their asylum applications were never lawfully considered with the result that neither Abdul nor Rashida could or should have been removed or deported from the UK unless and until decisions had been taken following appropriate and lawful consideration of their asylum claims had occurred.
71. The overall conclusion is that no part of the period of their detention was lawful insofar as it was based on their likely removal from the UK within a reasonable timescale. This was because any lawful consideration of their asylum applications would have taken far longer to resolve than they could lawfully have been detained for. It also follows that they are entitled to substantial and not merely nominal damages.

Issue 3

72. Introduction. The SSHD contended that even if the FT procedure was unlawful, was unlawfully imposed and produced an unlawful removal decision, nonetheless the immigration detention of Abdul and Rashida was justified since a sustainable and lawful decision was taken to the effect that their removal was likely within a reasonable time and that they were each abscond risks.
73. Discussion. These submissions are unsustainable for these reasons:

(1) The FT procedure was imposed on their arrival in the UK on 9 July 2013. The timescales started to run from that date. Had it been appreciated, as it should have been, that the FT procedure was both inappropriate and systemically unlawful, the ordinary procedure applicable to asylum applications would have applied. Subject to there being a risk that Abdul and Rashida would abscond, that procedure would inherently have taken longer than the maximum lawfully permissible period of detention pending removal.

(2) The only other basis for detention that was asserted was that each was an absconding risk. However, both Abdul and Rashida had claimed asylum as soon as they arrived at Birmingham airport, both had completely unblemished immigration histories, both were on any considered basis honest and reliable individuals claiming asylum for faith-based reasons and both had reliable friends, potential sureties and accommodation who were all apparently available to them.

(3) No structured risk assessment of their absconding risk was put in evidence and, by inference, was never carried out.

74. Conclusion. No alternative basis for lawfully detaining Abdul and Rashida for any part of the period between 9 July and 22 October 2013 has been made out. Indeed, there was no such lawful basis.

Issue 4

75. Both Abdul and Rashida were detained on 9 July 2013 and released on bail on 22 October 2013. The question arises as to whether their detention for any part of that period was lawful. The answer is that no part was lawful. Both Abdul and Rashida were referred to the FT procedure on arrival and were in consequence detained. Had their claim for asylum not been referred to the FT procedure, there was no evidence to suggest that they could or would have been detained at all. Instead, they would have been granted temporary admission on arrival and permitted to leave their arrival port and to proceed to temporary accommodation arranged through the Ahmadi Organisation based in the UK.
76. It follows that no part of their period of detention was lawful.

Overall Conclusion

77. Both Abdul and Rashida are entitled to substantial damages for the entire period of 106 days between 9 July 2013 and 22 October 2013 being the period during which they were unlawfully detained. Such damages are to be assessed by the Central London Trial Centre to which this case is to be referred if the recoverable damages cannot be agreed within a period of three months starting with the date of the order in this case. Such damages are not to be reduced or assessed as being nominal and should take account of the ill-health of each of them, the general inconvenience, humiliation and distress at their lengthy period of unlawful detention, the glaringly unlawful nature of that detention and the failure by the SSHD to recognise, accept or apologise for that unlawful detention at any stage up to and including the present.

HH Judge Anthony Thornton QC