CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 février 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .sDA30A789 { margin-top:30pt; margin-bottom:36pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s471F7CE { margin-top:6pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } .sCDABDDB1 { margin-top:24pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } FOURTH SECTION Application no. 6071/12 Y.I. against the United Kingdom lodged on 27 January 2012 STATEMENT OF FACTS THE FACTS A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant entered the UK on 22 December 2009, using his own passport and a visit visa valid until 24 March 2010. He claimed asylum on the following day, on the basis that he was an Ahmadi Muslim and had been preaching and trying to convert people at his shop. He claimed that as a result of this, he had been harassed on six occasions between March and December 2009. He had been arrested after a shopkeeper with whom he traded handed him over to the police for preaching to his employees, and he had been detained for two days and ill-treated. He had been attacked in May and July 2009 by people who came into his shop. He had spent three weeks in the United Kingdom in October 2009. In November 2009 he had received a warning that certain mullahs linked to Khatme Nabuwat – an anti-Ahmadiyya organisation – planned to kill him, so he had spent some time with a friend in another town. The mullahs had come for him there but he had managed to flee. He had been attacked again later that month back in his home town, where he had returned to celebrate Eid, but had been saved by the intervention of some neighbours. His father had been abducted and tortured for the applicant’s address in December. The mullahs had come looking for the applicant at his uncle’s house, where he had been living. The applicant was not present but his uncle was threatened. The applicant had left for Lahore as a result of these incidents, where he decided to travel the United Kingdom as he still had a valid visa. The applicant’s asylum claim was refused on 27 January 2010. The Home Office accepted that the applicant was an Ahmadi. However, there were discrepancies and inconsistencies in his story, including the year in which he started his preaching, which led the Home Office to reject his account of having been arrested, attacked and harassed as a fabrication. The applicant’s failure to disclose, upon entry to the UK, his real reason for travelling, further undermined his credibility. The applicant had shown no reason why he could not relocate to a different part of Pakistan to avoid those whom he claimed to fear. The background evidence did not indicate a general risk of a high level for Ahmadis. The applicant could practise his faith discreetly. The applicant’s appeal against the refusal of asylum was heard by the First Tier Tribunal on 4 and 12 February 2010. The Immigration Judge accepted that the applicant was an Ahmadi, who had previously been involved in preaching his faith in a discreet manner, and would continue to do so if returned to Pakistan, given the requirements of his religion. However, he was not satisfied that the applicant had suffered persecution in the past. There were elements of the applicant’s account of attacks and arrest which were simply not credible. Furthermore, a Country Guidance case on the question of Ahmadis in Pakistan ( MJ and ZM (Ahmadis) Pakistan CG [2008] UKAIT 00033 ) indicated that there was very sparse evidence indeed of harm to Ahmadis by non-state agents. There was nothing to suggest that the applicant would in any way stand out from the rest of the Ahmadi population. The judge was not convinced that mullahs had a system of record-keeping or communication that would enable mullahs from one part of Pakistan to know whether a person was sought by mullahs from another part. The option of internal relocation was thus open to the applicant. The applicant sought permission to appeal to the Upper Tribunal, which was refused on 19 February 2010 and again on 6 April 2010. The applicant then sought permission to appeal to the Court of Appeal, which was refused on 13 July 2010 and again on 13 October 2010, following an oral hearing. None of these decisions have been submitted to the Court. The applicant made further representations on 9 November 2011, which were rejected as not amounting to a fresh asylum claim on 26 November 2010. The Home Office found that documents submitted by the applicant to prove that he was active within the Ahmadiyya community in the UK did not advance his case, since it had been accepted that he was an Ahmadi. Documents submitted purporting to show that there were legal proceedings against him pending in Pakistan were not believed to be genuine, due to the known ease with which fraudulent documents could be obtained in Pakistan and the applicant’s generally low credibility. The applicant submitted further representations on 22 December 2010, 10 March, 30 June and 13 September 2011, all of which were rejected as not amounting to a fresh asylum claim on 23 January 2012. The applicant’s claim to have participated in an Ahmadiyya conference in the UK was acknowledged, but as his faith had already been accepted, this did not advance his claim. Articles describing the general situation in Pakistan for Ahmadis did not apply specifically to the applicant and did not overturn the finding that his religious profile would not put him at risk upon return. His case had already been considered in the light of the relevant Country Guidance case, and further consideration was given to it in the light of a more recent case, MT (Ahmadi – HJ (Iran)) v. Secretary of State for the Home Department [2011] UKUT 00277 (IAC) , which stated that, where it had been found that a person would be discreet in his religious practice upon return to his country of origin, the reasons for the discretion must be considered. If the discretion was motivated only by a fear of persecution, then the person’s asylum claim was valid. In respect of this applicant, the Home Office noted the Immigration Judge’s findings that the applicant had preached at a low level only; had not been persecuted in the past; and was in no way exceptional as a member of the Ahmadi population. Based on these findings, the applicant did not fall within the terms of the case-law, because he had not in the past propagated his religion to a level which would create for him a real risk of persecution. B.     Relevant domestic law 1.   MJ and ZM (Ahmadis) Pakistan The most recent Country Guidance case on Ahmadis in Pakistan, which was promulgated in 2008, held: “In Pakistan as a whole, whilst it is clear that from time to time local pressure is exerted to restrict the building of new Ahmadi mosques, schools and cemeteries, and that a very small number of Ahmadis are arrested and charged with blasphemy or behaviour offensive to Muslims, the number of problems recorded is small and has declined since the Musharraf Government took power. Set against the number of Ahmadis in Pakistan as a whole, they are very low indeed. The courts do grant bail and all appeals against blasphemy convictions in recent years have succeeded. There is very sparse evidence indeed of harm to Ahmadis from non-state agents (though rather more anecdotal evidence of difficulties for Christians). The general risk today on return to Pakistan for Ahmadis who propagate the Ahmadi faith falls well below the level necessary to show a real risk of persecution, serious harm or ill-treatment and thus to engage any form of international protection. Where, exceptionally, the facts of a particular appellant’s case indicate that such an appellant cannot be returned safely to their home area, the existence of an internal relocation option, either to Rabwah or elsewhere in Pakistan, is a question of fact in each such appeal.” 2.     MT (Ahmadi – HJ (Iran)) v. Secretary of State for the Home Department In this reported determination of the Upper Tribunal (Asylum and Immigration Chamber), the Tribunal held that, where it was found that an Ahmadi would be “discreet” upon return to Pakistan, the reasons for such discretion would need to be considered in the light of HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC   31, a case which dealt with the issue of discretion in the context of accepted homosexuals being returned to countries in which homophobia was rife. As regards Ahmadis in Pakistan, the Tribunal found that, where a person if returned would act discreetly in their religious practice but such discretion would be mainly motivated by a fear of persecution, then the person in question had a well-founded fear of persecution and should not be returned to Pakistan. QUESTIONS TO THE PARTIES 1.     Is the finding in ( MJ and ZM (Ahmadis) Pakistan CG [2008] UKAIT   00033 ) that there is little evidence of a serious risk of harm to Ahmadis in Pakistan still applicable in the light of what, from the background country evidence, appears to be a worsening situation for Ahmadis?   2.     Has adequate consideration been given to the applicant’s case in the light of MT (Ahmadi – HJ (Iran)) v. Secretary of State for the Home Department [2011] UKUT 00277 (IAC) ?   3.     In all the circumstances of the applicant’s case, would he face a real risk of ill-treatment contrary to Article 3 of the Convention if he were to be removed to Pakistan?