Husayn ibn Alī ibn Abī Ṭālib, or Imam Husayn, was the grandson of the Prophet Muhammed (Peace Be Upon Him). Like the present predicament of much of the Muslim world, great tragedy befell Islam in its nascency. In the year 680 AD, Syria’s ruthless Umayyads – who usurped power to establish Islam’s first dynastic seat in Damascus – murdered Imam Husayn and most of Prophet Muhammed’s family. Outnumbered, Imam Husayn’s small group of followers was initially denied water for many days and then systematically slaughtered: even children as young as six months were not spared. Upon Imam Husayn’s martyrdom – who was beheaded, his head placed upon a spear – his sister Zaynab cried:
O Muhammad! O Muhammad! The angels of Heaven send blessings upon you, but this is your Husayn, so humiliated and disgraced, covered with blood and cut into pieces; and, O, Muhammad, your daughters are made captives, and your butchered family is left for the East Wind to cover with dust?
Against this history, it is not surprising that the adherents of Shi’a Islam, and indeed other types of Muslims, equate Imam Husayn’s heroic stand at Karbala (Iraq) – to defend his grandfather’s legacy – against a large Umayyad force as a triumph of good against evil, of light against darkness and so forth. Ultimately, Imam Husayn’s devotees (the Shi’a, literally meaning “party” [of Alī ibn Abī Ṭālib, the Prophet’s cousin and Imam Husayn’s father] in Arabic) became a dominant force within Islam.
But in present day Pakistan, the Shi’a faith is under very serious attack. Like the Christian and Ahmadi minorities, Shi’as are also being killed by religious extremists. Given that Jinnah, Pakistan’s founder, was a Shi’a and bearing in mind that minorities formed the vanguard of the Pakistan Movement, the country’s descent into extremism is extremely disappointing. I would like to condemn the murderous attacks on Pakistan’s Hazara Shi’a community in Balochistan and those in Karachi’s Abbas Town (where, despite a heavy death toll, the terrorists were unable to divide Shi’as and Sunnis living side by side). Moreover, the arson attacks on Lahore’s Christian population of Joseph Colony are utterly deplorable and the Government of Punjab needs to do a lot more to bring the perpetrators to justice.
(1) Fresh Claims
Under Part 12 (Procedure and rights of appeal) of the Immigration Rules, paragraph 353 requires a decision-maker deciding a further asylum or human rights claim to answer the following five questions (i) Is the further claim a human rights or asylum claim? (ii) Has the claim previously been rejected or withdrawn and any appeal relating to that claim is no longer pending? (iii) Is the present claim accepted or rejected? (iv) If rejected, is the content of the submission significantly different from the material that had previously been considered? (v) When taken together with the previously considered material, does the present claim create a realistic prospect of success notwithstanding its rejection?
The issue was whether the Claimant ST’s further representations in May 2009 and January 2011 amounted to fresh asylum claims.
(3) Factual Background
In Pakistan, at age 16, with her parents’ oversight, ST was forced into marriage with the scion of a political family who, in order to avoid permanent scars, skillfully inflicted beatings upon her (even during pregnancy). ST’s husband also threatened to kill her on three occasions because he resented her inability to produce a male heir. To save her own life and that of her daughter, ST initially fled internally within Pakistan. But unconvinced of her safety she decided to seek refuge in Canada – where she believed her asylum application would be dealt with expeditiously (following which her daughter could join her) – and to achieve this she sold her valuables and raised £7,000 to pay an arranger. (For full facts see HHJ Anthony Thornton QC’s judgment at  – .)
Thus, aiming to claim asylum in Canada, in 2005, ST travelled to Amsterdam’s Schiphol airport via Heathrow but was returned to the UK because the Dutch authorities detected her fake passport. At Heathrow she immediately claimed asylum on the basis of prolonged serious marital abuse and a genuine fear of life-threatening persecution. The Secretary of State for the Home Department (SSHD) refused ST’s asylum claim because she felt that ST’s account lacked credibility and was untrue. Therefore, ST’s removal would not breach Article 2 (right to life), Article 3 (prohibition of torture and of inhuman or degrading treatment) and Article 8 (right to respect for private and family life) of the ECHR; the right of appeal was not exercised (ST blamed her old solicitors for this). After some time in detention, ST was released on bail and chose to abscond. Thereafter, following exposure to Shi’a teachings through her friend’s father Najaf Abbas Shah in whose house she resided, ST, a Sunni, embraced Shi’ism at the Imam Bargah (or mosque) of the Hussainia Islamic Mission in Bradford.
In 2009, ST’s new solicitors made representations for discretionary leave on the basis that she feared persecution if returned to Pakistan by reason of being a woman and she would suffer inhuman and degrading treatment, and possibly death. By a decision dated 10 January 2011, the representations were rejected by the SSHD who felt that the representations made did not amount to a fresh claim under paragraph 353 of the Immigration Rules. ST was detained, she refused to acquiesce in her removal and fresh removal directions were set.
Undeterred, ST instructed new solicitors (in total ST instructed no less than five firms of solicitors) who, in late January 2011, served yet more representations on the SSHD claiming that because she had converted to a different religious faith, ST feared persecution from religious fundamentalists if returned to Pakistan. The representations, which were advanced as a fresh claim based on paragraph 353, were rejected by the SSHD three days later because in her view there was a lack of corroborative evidence in support of the claim and that it did not amount to a fresh claim. Even though the SSHD considered ST’s claim as an imputed Article 9 (freedom of thought, conscience and religion) ECHR claim, the lack of corroborative evidence coupled with the receipt of any threats or incidents of violence arising out of switching religions meant that the claim lacked credibility because Article 9 was not raised in the 2009 representations. Moreover, the 2011 COI report was relied upon to argue that switching sects within Islam did not put ST at risk of blasphemy or apostasy and she could safely relocate within Pakistan and live with other Shi’as/like-minded people. In sum, there was no evidence that she was at risk from, or had a well-founded fear of, persecution from fundamentalist groups and returning ST to Pakistan would not, on the basis of her evidence, breach the UK’s obligations under Article 9 ECHR.
Since neither set of representations were considered to be a fresh claim, no right of appeal was available to the First-tier Tribunal (FTT) and so in early February 2011, ST pursued judicial review on the basis that the guidance in KA and Others (domestic violence – risk on return) Pakistan CG  UKUT 216 (IAC) – communicated to Strasbourg in August 2012 – was not correctly considered. Permission was subsequently granted as the Court agreed that KA and Others was insufficiently considered and anxious scrutiny was not applied. Importantly, ST’s success in her judicial review application against the SSHD’s rejection of the fresh claims to be set aside in respect of representations made would require the SSHD to reconsider whether or not either set of representations were fresh claims, and if so the SSHD’s rejection of either set of representations made would allow ST to exercise a right of appeal to the FTT.
After spending 10 weeks in detention, ST was granted temporary admission on 19 March 2011. On 25 March 2011, while proselytising Shi’ism, ST knocked on the door of a household which was in touch with her parents. The man who answered told her that her husband had taken her daughter away from her parents. Her invitation to accept Shi’ism was declined, she was abused and called a kāfir (apostate) and informed that her conversion would be reported to her parents. ST’s further representations in January 2011, claimed that because she had become a Shi’a, if returned to Pakistan she feared persecution from religious extremists like the Sipah-e-Sahaba and Lashkar-e-Jangvi groups and other fundamentalist organisations.
(3) HHJ Anthony Thornton QC’s Judgment
Granting ST’s judicial review application, the Court held that the SSHD erred in concluding that ST’s representations based on a fear of persecution if returned to Pakistan did not amount to fresh asylum claims. The SSHD had failed to exercise anxious scrutiny in relation to adverse credibility findings made in the original refusal of asylum whereas the SSHD had been significantly influenced by those findings when incorrectly concluding that the further representations did not substantially differ from the original asylum claim.
The Court noted that in interpreting paragraph 353 its context remained vital. It was not statute but a statement of policy (produced with Parliament’s authority) which served to guide decision-makers as to how the applicable provisions of immigration legislation will be applied. Paragraph 353’s intention is to protect refugees’ human rights by allowing an opportunity to make a second claim “where the basis of that claim has not previously been considered” (at ). Paragraph 353 was “clearly not intended to apply” to claims which have had “full access” to the appellate system but the provision applied to claims that have not previously been advanced or have been rejected but have a realistic prospect of success and do not merely delay the inevitable. Since the “general principles are easy to state but are often very difficult to apply” it was necessary to apply the policy “in a sensible, reasonable and sensitive way.” Decision-makers needed to swap places and consider whether an independent immigration judge might take a more favourable view of the same claim after a hearing.
Reminding itself that ST’s account and the evidence to support it required to be supported with anxious scrutiny – “to which lip service is often paid but whose content is often not fully appreciated” (at ) – the Court summed up (at ) the test as:
Requiring the decision-maker in the reasons for the decision and the court in its judgment has taken into account every factor which might tell in favour of the applicant
Ensuring that the fresh claim rejection decision was taken following the exercise of anxious scrutiny there had been no appeal from the initial decision and therefore there had never at any stage a decision in relation to the applicant’s asylum and human rights claims by an independent tribunal
In appropriate circumstances on the fact-specific facts of a particular case taking account of any factor that is known to it or could with reasonable diligence be known to the decision-maker/court even if that factor had not been expressly relied on by the applicant in the original or new claims as part of the exercise of showing anxious scrutiny
HHJ Thornton QC recalled Carnwath LJ’s guidance in YH  EWCA Civ 116, at  where the Court highlighted the “very special human context of such cases” and thus decisions needed “to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account.” However, as explained by Lord Hope DPSC in BA (Nigeria)  UKSC 7, a balance needed to be struck and thus in YH, Carnwath LJ was conscious that genuine asylum seeking was not aided by bogus stories.
ST’s second set of further representations relied upon events – her conversion to Shi’ism and missionary preaching – that occurred since her arrival in the UK. The Court observed that although the decision-maker was entitled to assess credibility, “this must be undertaken with particular care since her claim is based on her sur place activities” because it was clear from the authorities that someone whose original asylum claim was found to be implausible “well be truthful in putting forward a sur place claim, particularly where it has arisen some time after the original claim was dismissed” (at ).
In other words, ST presented herself in this claim as a proselyte who would be regarded as an apostate by extremists. If those facts were accepted or established, ST was entitled to claim asylum if it was also accepted that she has established a well-founded fear of persecution on her return which cannot reasonably be overcome by her relocating to a different part of Pakistan.
Granting ST’s judicial review application, the Court held that the general approach to S’s May 2009 claim was flawed because:
The 2009 Representations
- It did not properly consider whether the claim was fresh because it did not consider whether there were grounds to challenge the adverse credibility findings in the October 2005 decision (at ).
- It did not address the further representations in the round when considering whether they amounted to a substantially different claim. Instead, the old parts of the claim were first considered and were found not to be significantly different from the original claim. The decision as to whether the new claim was substantially different should have been taken by considering both the old and new parts together and considering whether the composite claim (see Ravichandran  Imm AR 97) was substantially different from its predecessor (at ).
- Erroneously, the decision placed considerable weight on ST’s failure to appeal against the October 2005 decision. However, it was at least arguable that ST had decided not to appeal for good reason, namely because her daughter became very ill (at ). (In January 2006, ST informed the SSHD that she was desperate to go home because her daughter was ill and she provided a copy of her daughter’s recent medical certificates to assist the SSHD in attempting to persuade the Pakistan High Commission to issue her with travel documents urgently.)
- The May 2009 decision lacked any anxious scrutiny of the credibility findings within the October 2005 decision, which meant that there was no consideration of whether they should be relied on, and no consideration of whether a judge hearing an appeal would consider them unreliable (at ). The decision-makers did not apply the “modest” Rajalingam  FCA 719 (an Australian case, see at  – ; per Sackville J) test to the evidence or to ST’s vulnerable state (at ). Rajalingam was endorsed by the Court of Appeal (Brooke, Sedley and Walker LJJ) in Karanakaran  3 All ER 449 – the decision-maker must not foreclose reasonable speculation about the chances of the future hypothetical event occurring (see the instant judgment at  for the Rajalingam principles adopted by Brooke LJ in Karanakaran at : Sedley LJ had, of course, explained that “[t]he question whether an applicant for asylum is within the protection of 1951 Convention is not a head-to-head litigation issue.”)
- The decision-maker did not consider whether there was any possibility that an immigration judge would take a different view of ST’s further representations, or whether the judge, exercising anxious scrutiny and with the added advantages of an oral hearing, might reach a different and more favourable view of the prospects of success of ST’s new claim (at ).
- Accordingly, the rejection of ST’s May 2009 representations could not stand (at ).
The 2011 Representations
- The decision to reject ST’s January 2011 claim accepted that the representations made in that claim differed from ST’s earlier two claims, but it gave no further consideration to the previous rejection decisions (at ). The decision that ST’s claim was uncorroborated was unwarranted, particularly given the need for anxious scrutiny of potentially corroborating evidence which had not been considered at an oral hearing. The decision-maker did not refer to the adverse credibility findings of the original claim nor to the need to consider the possibility that ST had been telling the truth about her sur place claim even if she had been untruthful in her previous claim. Despite the “lateness” and “opportunism” of ST’s sur place claim, both decisions were Wednesbury unreasonable (at ).
- The decision-maker’s findings were a fragile basis for rejecting ST’s new claim in its entirety, and her perception that the claim was untrue was significantly influenced by the adverse credibility findings made against ST in the October 2005 decision (at ).
- Further, the decision was not taken after anxious scrutiny of the new representations and the previous decisions. Had that been done, the decision would have taken into account at least some material considerations that it had not (at ). Accordingly, the rejection of the January 2011 representations also could not stand (at ).
Two witness statements made by ST and a letter by her mentor Najaf Shah were not before the decision-maker of the second claim rejection. But the Court explained that since the documents had been placed before it without objection to their admissibility at a hearing in which the judge was conducting an anxious scrutiny of a case which had had no judicial scrutiny previously, the said material “could” and “should” be taken into account (at ). HHJ Thornton QC considered that even “without sight of these documents” he would have arrived at the same decision that he did.