QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| 1) ABDUL HAMEED
2) RASHIDA JABEEN
|- and –
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Andrew Deakin (instructed by Government Legal) for the Defendant
Hearing dates: 15 December 2014
Crown Copyright ©
His Honour Judge Anthony Thornton QC:
Ahmadi persecution in Pakistan and relevant Pakistan Country Guidance
"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
Abdul and Rashida's involvement in Ahmadi faith activities
Particular acts of persecution since 1974
The Fast Track proceedings
Abdul and Rashida's claim for asylum and the decisions refusing it
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."
"[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."
(1) Should Abdul and Rashida be permitted to rely on the decision of the Court of Appeal in R (Detention Action) v SSHD  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.
"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.
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."
(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.
(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.
HH Judge Anthony Thornton QC