United Kingdom – Court of Appeal rules in case of public expression of religion in country of origin

Wednesday, March 6, 2019

On 6 March, the England and Wales Court of Appeal decided on a case concerning the rejection of an asylum claim on the basis that the applicant would not openly engage in religious activity in his country of origin.

The appellant, an Ahmadi of Pakistani nationality, had claimed that he intended to preach openly in Pakistan and that that activity would expose him to a real risk of persecution. The First-tier Tribunal concluded that the applicant would not expose himself to danger by carelessly engaging in public religious activities in his country and dismissed his claim. After the decision was upheld by the Upper Tribunal, the applicant sought to challenge it before the Court of Appeal.

The Court focused its assessment on whether the Tribunal failed to consider the reason why the appellant would not engage in religious activity that would entail a risk of persecution. In this assessment, it particularly relied on the judgment in the HJ (Iran) case and reiterated that, where a case touches upon the question of whether someone will live “discreetly” and avoid persecution, the question of why they choose to live discreetly must be addressed. Referring to the UNHCR Guidelines on religion-based refugee claims, as interpreted in domestic case law, it noted that there are no hierarchies among the Convention grounds of persecution and that no one should be compelled to hide their religious activities.

Commenting on the latest guidance case in Ahmadi claims, the Court stated that that judgment did not place its focus on the question why an Ahmadi would avoid openly practicing their faith in Pakistan. It further noted that the contested decision did acknowledge the “why” question but it also mentioned that the public practice of faith must be of particular importance to the person involved. According to the Court, both approaches detract from the consideration of the reasons that lead to the avoidance of public religious expression. Conversely, an appropriate approach would be centered on those reasons without any further requirement that the public expression of his religion has to be particularly important to him. In this context, the decision-maker must consider whether the applicant will express himself in private in order to avoid persecution. In case of a positive answer, then that applicant is likely to have a valid asylum claim.

The case was remitted to the First-tier Tribunal for a new hearing with the judgment's line of reasoning to be taken into account.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE. 




Persecution Grounds/Reasons