Case Preview: FA (Pakistan) v SSHD

This appeal provides the Supreme Court the opportunity to further interpret its own historic case law by ascertaining (i) whether the refusal of asylum on the expectation an individual will suppress the expression of their religious faith, where the state criminalises the reasonable expression of that identity, is consistent with the “fundamental right to live openly and freely, as themselves” as articulated in HJ (Iran) [2010] UKSC 31 or with the understanding of religious belief as “so fundamental to human identity that one should not be compelled to hide, change, or renounce this in order to avoid persecution” as per RT (Zimbabwe) [2012] UKSC 38, (ii) whether the rights in those two cases are applicable only if an individual gives “particular importance” to them and, if so, how – for instance by reference to what comparator group – the existence of “particular importance” is to be ascertained, and (iii) whether an individual possessing a well-founded fear of religious persecution may be expected to rely upon internal relocation notwithstanding nationwide legal prohibition on the expression of the religion in question. FA’s asylum claim on the basis of being a persecuted Ahmadi Muslim in Pakistan was initially refused by the decision-maker who disbelieved that the Khatme-e-Nubuwat (“KN”) organisation had developed an interest in him. But his appeal was allowed by the FTT.

Subsequently, the UT allowed the Home Office’s appeal and the Court of Appeal found that it was possible for him to internally relocate to another part of Pakistan. FA arrived in the UK in October 2014. But he did not return to Pakistan owing to a fear of persecution by KN, which staunchly opposes the Ahmadis and seeks to subdue the open expression of their beliefs. The UT determined that the FTT erred in law by neglecting the country guidance imparted in MN and Others (Ahmadis – country conditions – risk) Pakistan CG [2012] UKUT 389 (IAC) by holding that it did not have “any real bearing” on FA’s asylum appeal. Moore-Bick LJ held that the UT’s approach was permissible and internal relocation was an option for FA. He worked as a teacher in Pakistan but was dismissed from work twice because of his beliefs. He joined the police in 2004 and his seniors and colleagues discriminated against him. He was granted entry clearance in 2014 and arrived in the UK with the twofold purpose of attending his brother’s wedding and the Amadiyya Annual Convention in London.

After two months he returned to Pakistan in September 2014. FA divulged the details of his visit at work where a clerk in the office, who was a member of KN, accused him of carrying fresh instructions from Ahmadi leaders in London. His house was chalked with graffiti denouncing him as an apostate. He also received death threats and thus returned to the UK and claimed asylum.

Persecution in Pakistan

Under the criminal law in Pakistan, Ahmadis are not entitled to express and openly propagate their faith. It is an offence for them to hold themselves out as a Muslims. Their centres of worship are not classified as mosques and are forbidden from calling the faithful to prayer. They are prohibited from congregating freely to pursue their faith. In essence, the Pakistani state has criminalised Ahmadism and the community is not free to manifest and advocate its beliefs. An Ahmadi impersonating a Muslim can be prosecuted for a punishment of three years’ imprisonment. The reason for their persecution is the divinity attributed to the founder of their faith – Mirza Ghulam Ahmad – who certain extremists think has been falsely elevated to prophethood or to the status of a Messiah.

Moreover, a general blasphemy law targeting the population at large also carries the death penalty or life imprisonment and a fine for the offence of defiling the Prophet Mohammed or his family. Importantly, upon a true construction, the blasphemy law can only ever apply to Muslims and it cannot ever extend to non-Muslims. But of course this is not the case in Pakistan where the law has been constructed to marginalise and subdue minority communities such as Christians, Hindus and indeed Ahmadis.

The Court of Appeal

Kitchin, Tomlinson and Moore-Bick LJJ rejected the FTT’s approach as flawed. They observed that in light of MN it is possible to identify two broad categories of Ahmadis (i) those who feel compelled to manifest their faith, if necessary in contravention of Pakistani criminal law, and (ii) those who are content to live quietly and practise their faith in private. Dismissing the appeal, Moore-Bick LJ rejected the submission that the FTT had been justified to find that MN did not have any real bearing on FA’s case.

In the court’s view, the decision in MN was of potential significance to any case in which a Pakistani Ahmadi made a claim for asylum, as it provided the basic findings about the risks to which such persons were exposed in their country of origin. MN provides a “template” against which individual cases may be assessed. It was not possible to isolate the risk of persecution from the prospects of internal relocation which in turn could not be segregated from the manner in which a person chose to practise his or her faith. Moore-Bick LJ held that:

13. … In my opinion, therefore, the Upper Tribunal was right to find that a failure to address its findings constituted an error of law which, in view of its potential significance, could not be described as immaterial and justified setting aside the tribunal’s decision.

KN has a Pakistan wide presence but nothing suggested that its members had either the will or the means to be able to track down FA. In light of the FTT’s factual findings about his way of life prior to visiting the UK, it was not possible for the judge to evaluate the effectiveness of internal relocation without applying the guidance in MN.

Therefore, the UT had been correct to find that sidestepping MN constituted a material error of law. After setting aside the FTT’s decision, the sole issue for the UT to rule on was whether FA could relocate safely elsewhere in Pakistan. In light of the guidance imparted in MN it was natural to consider internal relocation to another part of Pakistan where FA was not known and where he was unlikely to come to KN’s attention.

Comment

Pakistan’s descent into intolerance is a great misfortune of history. Its progenitors were fine constitutionalists who pursued secular ideals. Ahmadi Muslims such as Sir Zafrulla Khan, Pakistan’s first foreign minister who also served as the president of the ICJ, formed the backbone of the Pakistan movement. Indeed, Muslims in British India had a greater tendency to stay united as a minority. Paradoxically, the creation of Pakistan as a state for Muslims resulted in the persecution of the Ahmadis which first became formalised by virtue of the Constitution (Second Amendment) Act 1974 and then found its way into the criminal law.

An obvious defect in the guidance in MN is that it is based on ambiguous expert evidence. Speculative at best and oblivious to ground realities of the rampant corruption plaguing Pakistani society, the guidance fails on simple points such as distinguishing between rich and poor. Indeed, Pakistan’s rich are much better able to protect themselves than the poor. Pakistani police officers are slow to victimise affluent individuals, Ahmadis or otherwise.

Moreover, the belief that the state is able to provide protection to Ahmadis – or indeed any “Muslim” citizen under the Constitution – is not just misconceived but verges on absurdity because state protection is virtually non-existent for average citizens. Furthermore, women are more likely to be targeted for abuse in Pakistan than men and the country guidance in MN is clearly incorrect to suggest otherwise.

Finally, the theory that FA would have been able to escape future persecution by KN’s members by utilising internal relocation is repudiated by the fact that even the Pakistani government is afraid of KN and its allies. Their recent mass protests against changing the wording of nomination forms for members of parliament to water down confirming the finality of the Prophet Mohammad, by replacing a sworn oath with a declaration, resulted in the federal law minister’s resignation and outright capitulation by the federal government so as to appease Islamic extremists and prevent countrywide religious violence.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Ahmadis, Appeals, Article 3, Asylum, Islam, Pakistan, Persecution, Refugee Convention, UKSC and tagged , , , , . Bookmark the permalink.

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