The Upper Tribunal has issued a new Country Guidance case on Ahmadis from Pakistan, the case of MN and others (Ahmadis – country conditions – risk) Pakistan CG [2012] UKUT 00389 (IAC). Shivani Jegarajah and Colin Yeo of Renaissance Chambers (and this blog) were instructed, as were Manjit Gill QC, Peter Jorro and David Lemer.

There were five appellants and all had been disbelieved to various extents by judges of the First-tier Tribunal, although it is interesting that at paragraph 128 the tribunal suggests a degree of over-scepticism on their part:

Having heard the extensive evidence from the expert and other witnesses as to Ahmadi practices and circumstances in Pakistan whose integrity is beyond doubt as well as the appellants who gave evidence before us, we consider that had the First tier Tribunal Judges heard this new evidence it is possible that they might have come to different conclusions.

Certainly the Upper Tribunal heard a wide range of evidence over the seven days of the hearing. Four independent experts gave evidence on various aspects of the situation of Ahmadis in Pakistan: the history and social context, the position of women, the position in law and the position on the ground in terms of police and court practice. A further three non appellant Ahmadis gave evidence as witnesses on the situation of women, on doctrinal and theological issues and on the targeting of Ahmadis, the way the community records such incidents and the way the community organises itself.

It is clear from the determination that this evidence was helpful and that the panel acquired a far greater understanding of Ahmadiyya than had previously been the case in the old Country Guidance case of MJ and ZM (Ahmadis, risk) Pakistan CG [2008] UKAIT 00033. This is reflected in a number of ways in the determination, from the comments on credibility findings to the shift away from the previous focus on ‘preaching’ activities and the useful glossary of terms at the end of the determination.

The tribunal addresses the current state of the law on religious freedom asylum claims. Essentially, where there would be a ‘serious’ interference with any aspect of religious freedom that may amount to persecution. Two considerations are relevant to whether the interference would be ‘serious’. Firstly, the punishment must be a serious one. In the context of Pakistan the tribunal accepts that there is a real risk of punishment for breach of the anti-Ahmadi laws and that the punishment for doing so would be serious. Secondly, the individual concerned must consider the infringement on his or her religious identity to be a serious one. Here lies the rub, to which we return below.

The tribunal proposes broadly the following approach to deciding Ahmadi cases:

(i)             Is the person genuinely an Ahmadi? Being registered with an Ahmadi community in Pakistan and, since arrival, in the UK will be highly relevant.

(ii)            If so, is the Ahmadi able to demonstrate that it is of particular importance to his or her religious identity to practise and manifest his faith openly in Pakistan in defiance of the restrictions in the Pakistan Penal Code (PPC) under sections 298B and 298C by, for example, preaching, proselytizing, holding open discourse about religion with non-Ahmadis, openly referring to one’s place of worship as a mosque and to one’s religious leader as an Imam, referring to the call to prayer as Azan, calling oneself Muslim or referring to one’s faith as Islam? The burden rests with the claimant to show any desires are genuinely held and of particular importance to the claimant to preserve his or her religious identity. If so, he or she is likely to be in need of protection.

(iii)           It is not an answer to such a person’s asylum claim to say he or she can simply avoid engaging in these activities in order to avoid harm.

(iv)          For such a person relocation to Rabwah or elsewhere is not an option.

(v)           The risk to Ahmadi women is no different to that to Ahmadi men.

(vi)          However, Ahmadis to whom the activities or practices at (ii) above are not important are not likely to be in need of protection, and if an Ahmadi has previously complied with the terms of the PPC then such a person will be unlikely to be able to show that it is of particular importance to his or her religious identity to engage in such activities.

(vii)         A claim based on post-arrival activities in the UK will require ‘careful evidential analysis’. The tribunal is clearly concerned that some Ahmadis may have not considered it problematic to comply with PPC provisions previously but then in the United Kingdom cynically decide that it is after all important to them for the purposes of claiming asylum.

The problem is that this approach requires an assessment in each case of the religious identity and beliefs of the asylum claimant. This is, quite simply, an impossible task. It is particularly dangerous where the Inquisitor comes from a completely different religious, educational, philosophical and cultural background. In a recent fresh claim judicial review flagged up on the blog a judge warned against exactly this exercise:

It is a dangerous thing for anyone, and perhaps especially a judge, to peer into what some call a man or woman’s soul to assess whether a professed faith is genuinely held, and especially not when it was and is agreed that she was and is a frequent participant in church services. It is a type of judicial exercise very popular some centuries ago in some fora, but rather rarely exercised today.

In reality, external activities will be taken by most (sensible) judges as a proxy for internal convictions, but this does not assist the asylum seeker who chaffed silently under the yoke of religious oppression in the country of origin, takes solace and joy in the religious freedom of the United Kingdom but who merely attends the church or mosque and is not considered by an immigration judge to be ‘active’.