In a unanimous decision the Court of Appeal have allowed the appeal of an Ahmadi who was unable to demonstrate that his case fell within the relevant country guidance decision of MN and others (Ahmadis- country conditions- risk) Pakistan CG [2012] UKUT 389 (IAC). The case is WA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 302.

The issue between the parties was whether the country guidance decision had properly interpreted the “why” question and in particular whether it accurately reflected the decision in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31.

The appellant’s submissions were supported by an intervention from UNHCR. The court accepted that the statement of principle, which formed the foundation of the headnote at paragraph 100 of the MN decision, omitted the obligation to ask the “why” question and had potentially given greater prominence than was appropriate to the open practice of faith being of particular importance to the individual in question.

Giving the lead judgment, Lord Justice Irwin observed at paragraph 60 that the appropriate guidance for a decision-maker could be summarised as follows:

i) Is the Claimant genuinely an Ahmadi? In answering that question the guidance set out in paragraph 5 of the headnote in MN is well expressed.

ii) The next step involves an inquiry into the Claimant’s behaviour if he or she is returned to Pakistan. Will he or she actually behave in such a way as to attract persecution? In answering that question, the decision-maker will again consider all the evidence and will, where appropriate, expressly consider whether the behaviour claimed by the asylum-seeker is genuinely an expression of their religious belief and is an authentic account of the way they will behave if returned.

iii) If the decision-maker’s conclusion is that the Claimant, if returned to Pakistan, will avoid behaviour which would attract persecution, then the decision-maker must ask the question why that would be so. Many possibilities arise. The individual may genuinely wish to live quietly, and would do so whether or not repression existed in relation to the expression of his or her Ahmadi faith. The individual may have mixed motives for such behaviour. If such a quiet expression or manifestation of genuine Ahmadi belief is merely the result of established cultural norms or social pressures, then it is unlikely there will be a basis for asylum. However, if a material reason (and not necessarily the only reason) for such behaviour will be to avoid persecution, then it is likely that the Claimant will have a valid claim for asylum. There is no requirement that public expression of Ahmadi religious faith, of a kind which is likely to attract persecution, should be of “particular importance” to the Claimant. Such a requirement is inconsistent with the test as laid down in HJ (Iran).

The individual’s case has been remitted for a new hearing with the guidance in the judgment to be taken into account. The Secretary of State has applied for permission to appeal to the Supreme Court.

The grounds of appeal were amended with the court identifying the case as having had “an untidy history following the decision of the Upper Tribunal”, and reminding parties to litigation that “even in asylum claims, adherence to the rules of the court and procedural rigour are necessary” (para 33)

The effect of the decision is to remove the need for the individual to demonstrate that they would be actively proselytising or that they would necessarily be open about their faith in the future (swelling the ranks of martyrs), provided that the reason for not behaving in a way that would attracts persecution is to avoid that persecution — even if the reasons for not practising openly are mixed.

Raza Husain QC and Eric Fripp were instructed by Luqmani Thompson & Partners for the Appellant. Isabel McArdle was instructed by the Government Legal Department for the Respondent. Michael Fordham QC, Shane Sibbel and Gayatri Sarathy were instructed by Baker McKenzie for the Intervener.