WA (Pakistan) v The Secretary of State for the Home Department, 2019

This case dealt with the issue of the whether the guidance of MN and others Pakistan CG [2012] was still accurate in terms of asylum protection due to failing to ask the question of why an individual would act in a discreet way in their country of origin. This question draws the distinction between concealment of faith due to fear of persecution or simply due to social norms or personal preference.

WA sought to challenge the correctness of the guidance in MN and others Pakistan CG [2012] in that it failed to properly reflect the judgement of HJ (Iran) test of asking why an individual would act in a particular way to avoid persecutory harm in their country of origin. The unanimous judgement allowed the appeal and remitted the case back for a hearing.

Facts:

The appellant, an Ahmadi of Pakistani nationality, had claimed he intended to preach openly in Pakistan, and that the activity would expose him to a real risk of persecution. In several interviews, the appellant stated he would carry on preaching even if it would cause risk to his life.

However, his asylum claim was rejected by the First-tier Tribunal because they concluded he could refrain from such expression due to fear of persecution. His appeal was also rejected by the Upper Tribunal.

The current appeal decided in this case was made on three grounds:

1. The tribunal failed to ask why the appellant would avoid activity giving rise to persecution i.e. preaching openly in Pakistan.

2. The tribunal failed to address the question whether it was now of particular importance to the appellant to practice and manifest his Ahmadi Muslim faith openly in Pakistan.

3. The relevant country guidance decision, MN and others (Ahmadis – country conditions – risk) Pakistan CG [2012] UKUT 00389 (IAC) was wrong and misleading as to the approach to the ‘why’ question.

Decision & Reasoning:

The Court assessed whether the Tribunal failed to consider the reason why the appellant would not engage in religious activity that would entail a risk of persecution. The court referenced the judgement in the HJ (Iran) case which emphasised that where a case concerns the question of whether someone will live in a discreet manner and avoid persecution, the question of why they choose to live discreetly must always be addressed.

Turning to the Guidelines on International Protection on religion-based refugee claims, as acknowledged by Lord Dyson in RT (Zimbabwe) v SSHD [2012] UKSC 38, it was recognised that there are “no hierarchies of protection amongst the Convention reasons for persecution”. (para 45)

The Court also comments on the guidance case of MN and others Pakistan CG [2012], stating that the judgement did not focus on the question of why an Ahmadi would avoid openly practicing their faith in Pakistan. It also noted that the previous decision of the Upper Tribunal did acknowledge the ‘why’ question, however it did this in conjunction with the need for the public practice of faith to be of ‘particular importance’ to the appellant.

The Court was of the opinion that the above perspectives diminish the consideration of the reasons which may lead to the avoidance of public religious expression. An appropriate approach would be to ask whether the appellant wishes to live discreetly, and would do so whether or not persecution existed in relation to the expression of his faith.

On one hand, if the quiet expression of his Ahmadi belief is merely a result of cultural norms or social pressures, consequently there will not likely be a basis for asylum. On the other hand, if expressing himself in private is done in order to avoid persecution, the applicant is likely to have a valid asylum claim. (para 60)

The case was remitted to the First-tier Tribunal for a new hearing for proper consideration on a correct understanding of the law.

Outcome:

Appeal granted.

Other sources cited:

HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596

FA (Pakistan) v SSHD (UKSC/2016/0167), FA (Pakistan) v SSHD [2016] EWCA Civ 763

HT (Cameroon) v SSHD [2010] UKSC 31; [2011] 1 AC 596

Amanda Hickey v The Secretary of State for Work and Pensions [2018] EWCA Civ 851

Harverye v Secretary of State for the Home Department [2018] EWCA Civ 2848

MJ and ZM (Ahmadis – risk) Pakistan CG [2008] UKAIT 0033

FG v Sweden (Appn. 43611/11) (2016)

Taylor v Minister for Immigration and Multi-Cultural Affairs [1999] FCA 661

Guidelines on International Protection: Religion-Based Refugee Claims under article 1A(2) of the 1951 Convention and/or Protocol relating to the Status of Refugees (2004),

Pakistan Penal Code

Case Law Cited:

CJEU - C-71/11 and C-99/11 Germany v Y and Z

UK - Upper Tribunal, 13 November 2012, MN and others (Ahmadis - country requirements - risk) Pakistan CG, [2012] UKUT 00389 (IAC)

CJEU - C-199/12, C-200/12 and C-201/12, Minister voor Immigratie en Asiel v X, Y and Z

UK - Upper Tribunal, 20 June 2011, MT (Ahmadi - HJ (Iran)) Pakistan [2011] UKUT 00277 (IAC)

UK - Court of Appeal, 18 November 2010, RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 1285

UK - House of Lords, 15 February 2006, Januzi v Secretary of State for the Home Department & Ors [2006] UKHL 5

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WA (Pakistan) v The Secretary of State for the Home Department, 2019