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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> TM, R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 9 (18 January 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/9.html Cite as: [2012] EWCA Civ 9 |
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ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr STEPHEN MORRIS QC SITTING AS AN ADDITIONAL JUDGE OF THE QUEEN'S BENCH DIVISION
C0/2173/2006
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TOMLINSON
AND
SIR MARK POTTER
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The Queen on the application of TM |
Appellant |
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- and - |
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Secretary of State for the Home Department |
Respondent |
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Mr Sarabjit Singh (instructed by Treasury Solicitors) for the respondent
Hearing dates: 25th July 2011
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Crown Copyright ©
LORD JUSTICE WARD:
The depressing story in more detail
"26. … Whilst I consider there is a serious possibility that the events in Jaranwala occurred – essentially directed against his parents rather than the appellant who was in his mid-teens when the events occurred, I do not find that those events would lead to a serious likelihood of persecution being directed against the Appellant if he returned there now. … it is clear that he moved from Rabwah to Karachi to progress his education and to take advantage of work opportunities. It was not because he was persecuted in Rabwah. He lived in Karachi for eight years without any reported incident of persecution occurring. He held down a job that he was pleased with. He claims to have been active in the Ahmadi community as a voluntary worker from 1994 but does not report any problems until 1997. If he had been as active in his Ahmadi faith as he suggests, it is perhaps surprising that he had not experienced problems. Had he had significant problems I have no doubt that he would have mentioned them. Given the background evidence I accept there is a serious possibility that he was attacked in Karachi and did lose his job. It is claimed that he had established a good business in Sheikhupura but there is no evidence to support this and he was not in business there for very long before the further alleged persecution occurred. His evidence is that members of the Khatame Nabbuwat who opposed him were business rivals and used the pretext of his Ahmadi faith to oppose him. This does not suggest there was any link with the persecution he claims in Karachi … The physical ill-treatment he claims to have suffered was at the hands of the police rather than the Khatame Nabbuwat. …
27. I have nevertheless reached the conclusion that, notwithstanding my doubts as to his credibility on certain matters, the core of his story remains to the extent that there is a serious possibility he was persecuted in Karachi Pakistan because of his Ahmadi faith. I make no finding as to whether or not he was persecuted for a Convention reason in Sheikhupura; he may well have antagonised business rivals though his business there was short-lived. … The issue is whether he would face persecution if returned now. I reject the evidence as to current risk based on the FIR and similar doubts as to the poster.
28. The issue whether he would face persecution if returned now. I reject the evidence as to current risk based on the letter from Pakistan, the FIR and the poster. I do not find that he was particularly conspicuous to religious extremists because of his religious activities per se – or he would be now if he returned and resumed the same level of activities – he was after all in Karachi for eight years without recorded incident; the events in Sheikhupura appear to have been motivated by business rivalry with his Ahmadi faith and activities providing a pretext for his competitors acting against him. It is now approaching six years since he left and memories of his previous problems will have dimmed. He was not charged with any offence … However I accept that returning to live in Karachi where I have found he has suffered persecution and possibly to Sheikhupura where he may have been persecuted might place him in the position where there is a serious possibility that he would be persecuted again for his Ahmadi faith. I heard evidence from him that he would continue preaching – it was as important to him as reading and it was for every Ahmadi to preach their religion – but his evidence of his activities in Pakistan do not indicate that he was a high profile preacher who would attract attention as a result of proselytising his beliefs. I did not find on his evidence that he had a prominent role as a preacher with a significantly high profile that would draw particular attention of religious extremists to him. I accept there is a serious possibility that the incidents of alleged persecution occurred but I do not find it a real likelihood that he had a specific role of a preacher of the Ahmadi faith, over and above what every Ahmadi has a duty to do."
(To explain, the FIR refers to an incident occurring on 27th January 2003 and reported to the Daska police on the same day. The adjudicator accepted that false reports are made to the police against Ahmadis and that this FIR may have been initiated on the false information of his opponents. Thus he found:
"Clearly this is a false report as the appellant … was, of course, in the UK at the time."
Among the other documents the appellant produced was a poster that showed him to be a target of the Khatame Nabbuwat but the adjudicator could only assume that it dated from the same time as the FIR and was therefore unreliable.)
"29. However notwithstanding the inconsistencies in his story and his calculated efforts to boost his claim with manufactured evidence, I do find it credible, taken in the round and applying the lower standard of proof that he did suffer persecution at the hands of religious extremists against whom the state was unwilling or unable to provide protection … and there is a serious possibility that he would suffer such ill-treatment again if returned to those parts of Pakistan where Ahmadi are in a minority.
30. However in Rabwah, where 90% of the population are Ahmadi it is a different matter compared with Karachi, Shaikupura and other places where Ahmadi are very much in the minority.
…
31. However I find it would be safe and not unduly harsh for this Appellant to re-locate in Rabwah. … In the case of this Appellant I follow the conclusions in Mizra – referring to the US Department of State Report, Part V – in finding that notwithstanding the presence in Rabwah of members of the Khatame Nabbuwat, protection is available to Ahmadis and it is generally safe for them there. … I do not find his evidence credible that in Pakistan he was prominent and conspicuous as a preacher of the Ahmadi faith. In Rabwah it is not a serious possibility that he would be persecuted and without available protection.
32. There was no evidence as to why it would be unduly harsh for him to re-locate in Rabwah. He has family there and there is no reason why he would not be able to establish himself and exploit his obvious business acumen."
"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions would amount to a fresh claim if they are significantly different from the material that has been previously considered. The submissions will only be significantly different if the content had not already been considered and, taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
He reviewed the case on its merits and gave it anxious scrutiny. He considered that the documents submitted with the application, being photocopies, could not be verified and added little weight to the case. The poster and FIR had been rejected by the adjudicator as referring to some other person. No credible evidence had been submitted to show that the appellant would receive adverse attention or would be specifically targeted in Rabwah nor that he would be unable to be relocated safely to different parts of Pakistan. The submission did not have a realistic prospect of success and the submission did not amount to a fresh claim. The Secretary of State was of the view that the applicant had no basis to stay here and that action should be taken to ensure his removal from the United Kingdom without delay.
"8. In the light of the aforementioned case law, the claimant submits that:
(a) Adjudicator Strowger accepted that he had been subjected to persecution, and that he would be at risk in those areas of Pakistan where Ahmadis were in the minority.
(b) Rabwah is not a safe relocation alternative, simply on the basis of the number of Ahmadis present within the population.
(c) He is an exceptional Ahmadi who cannot return safely to his home area, and is unable to relocate in Rabwah."
"17. In conclusion, for the reasons set out above, the Secretary of State is of the view that there is no realistic prospect that your client's submissions will, when taken together with all the previously considered material, lead an immigration judge to decide that your client should be allowed to stay in the United Kingdom and accordingly it does not amount to a fresh claim under paragraph 353."
The claim for judicial review
"10. The approach to be adopted by the Secretary of State and by this court respectively, when dealing with an application under paragraph 353 is set out in the judgment of Buxton L.J. in R (on the application of WM (DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraphs 6-11. The Secretary of State has to consider whether there is new material which is significantly different from that already submitted, and if so, whether that material, taken together with the previous material, creates a realistic prospect of success in a further claim. In so doing, the Secretary of State must be informed by anxious scrutiny of the material.
11. As to the approach to be adopted by the court when itself reviewing a decision of the Secretary of State taken pursuant to paragraph 353, the first issue for the court is whether the Secretary of State asked herself the right question, namely whether there is a realistic prospect of success before an immigration judge. The second issue for the court is whether the Secretary of State has applied the requirement of anxious scrutiny. Finally, the question for the court is whether the Secretary of State's conclusion of "no realistic prospect" is Wednesbury unreasonable; it will be unreasonable in particular, if the conclusion was not reached on the basis of anxious scrutiny. Most recently, in ZT (Kosovo) v SSHD [2009] UKHL 6, [2009] 1 WLR 348 the House of Lords confirmed this as the correct approach for the court. At the same time, the majority of their Lordships recognised that where there are no issues of primary fact, the court's own view as to whether there is a realistic prospect before the immigration judge is likely to inform its view as to whether the Secretary of State's conclusion was Wednesbury unreasonable and that in such a case if the court itself concludes that the claim has a realistic prospect of success, it will quash the Secretary of State's contrary view as being irrational: see opinions at paragraphs 21 to 23, 75 to 76 and 83. (The emphasis was added by the deputy judge.)
12. The issue before me therefore is whether, applying the requirement of anxious scrutiny, the decision of the defendant that, considering the claimant's personal circumstances in the light of IA and MJ and ZM, there is no realistic prospect of the claimant establishing, before an immigration judge, that there is a real risk of persecution or real treatment upon return to Pakistan was unreasonable and whether in reaching that conclusion the Defendant satisfied the requirement of anxious scrutiny."
"24. … the following principles can be derived from the cases of IA and MJ and ZM.
(1) In Pakistan as a whole, the number of incidents recorded against Ahmadis are small, particularly when set against the number of Ahmadis in Pakistan. There is very sparse evidence of harm to Ahmadis from non-state agents. The risk today on return 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: MJ and ZM §§ 83 and 84.
(2) There may exceptionally be a case where the facts indicate that an individual cannot be returned safely to his home area, in which case the question of the existence of an internal relocation option arises: MJ and ZM § 84 and § 4 of the summary.
(3) Where a question of internal relocation does arise, the existence of an internal relocation option, either to Rabwah or elsewhere in Pakistan is a question of fact in relation to that individual: MJ and ZM § 84 and § 4 of the summary.
(4) Whilst Pakistan as a whole is safe, for an individual who does have a reasonable fear of persecution in one part of Pakistan, Rabwah does not necessarily constitute a safe haven: IA (CA paragraph 17 and 19(a)). For those that can establish a well-founded fear of persecution elsewhere in Pakistan, Rabwah is not to be assumed to be either generically safe or generically unsafe. The issue must be determined case by case: IA (CA), § 19(e).
(5) A relevant factor in determining, on particular facts, whether a particular place of internal relocation is safe is whether there is evidence of "national" or "institutional pursuit" or, rather, whether the past persecution was "localised": IA (AIT) § 27: MJ and ZM §§ 91, 92 and 94; and IA (CA) § 2."
He then analysed the adjudicator's determination citing extensively from paragraphs 22, 26 to 33. Finally he summarised the fresh claim and in considerable detail the Secretary of State's response to it.
"56. In my judgment the Defendant applied the relevant principles to be derived from IA and from MJ and ZM and there is no basis upon which it can be said that the Defendant's application of those principles to the particular facts of the claimant's case was irrational.
57. For those reasons I conclude that it was open to a reasonable Secretary of State, properly applying IA and MJ and ZM, and addressing matters with the requisite anxious scrutiny, to have concluded that there was no realistic prospect of the claimant establishing before an immigration judge that there is a real risk of persecution and/or ill-treatment upon his return to Pakistan. The Defendant's decision that the Claimant's further representations did not amount to a fresh claim under paragraph 353 of the Immigration Rules was therefore not unreasonable. Accordingly I dismiss the claimant's application for judicial review."
The grounds of appeal
(1) the judge (and I would add, the Secretary of State) misapplied the test in WM (DRC)) in considering whether or not there was a fresh claim. They erred because they considered it only in terms of whether or not the Secretary of State's assessment of the merits of the appellant's representations was reasonable. There are on the contrary two separate questions to consider and the Secretary of State's decision betrayed no attempt to give any independent consideration to the separate and more important question: even if the Secretary of State's assessment of the facts is reasonable and the asylum and human rights claim is reasonably rejected by the Secretary of State, is it realistically possible that an immigration judge might take a different view from the Secretary of State?(2) In the light of the new country guidance, the view could not reasonably be held that there was no realistic prospect that an Immigration Judge might conclude that the appellant could be expected, safely and reasonably, to relocate in Rabwah.
(3) There was no realistic prospect that an Immigration Judge might hold that, given his persecution at the hands of both the extremists and the police, he could relocate elsewhere than Karachi and Shaikhupura.
Discussion
"The task of the Secretary of State
[6] There was broad agreement as to the Secretary of State's task under para 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under para 353(i) according to whether the content of the material has already been considered. If the material is not 'significantly different' the Secretary of State has to go no further. Secondly, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material."
"… a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."
In my judgement there is no room whatsoever for finding the Secretary of State was in any way irrational either in his approach to or in his actual decision-making in this case. I can see no merit in the first ground of appeal.
(i) at [29] "There is a serious possibility that he would suffer such treatment again if he returned to those parts of Pakistan where Ahmadi are in a minority;
(ii) at [30] "However in Rabwah, where 90% of the population are Ahmadi it is a different matter compared with Karachi, Shaikhupura and other places where Ahmadi are very much in the minority; and
(iii) at [31] Accordingly, "I find it would be safe and not unduly harsh for this appellant to relocate to Rabwah."
Contrary to that reasoning, the case of IA established that:
"21. Nevertheless, Rabwah's status as an Ahmadi stronghold has given rise to the view expressed sometimes by the Secretary of State, particularly in letters of refusal, and sometimes by the Tribunal, whether in reliance on Country Guidance or otherwise, that a person at risk elsewhere and so in need of a place to relocate internally could reasonably be expected to go to Rabwah where he would obtain protection because of the Ahmadis there. We are satisfied that that is wrong. …
22. But although there is that safety in numbers, and there is a possibility of informal community support among Ahmadis, the advantages of Rabwah stop there, even for an Ahmadi who lives in Rabwah. Such a person cannot expect in Rabwah any more than anywhere else to obtain protection from the police (there are few or no Ahmadi policemen) or from other officials; because, despite being the majority population in Rabwah, Ahmadis are not represented in government. So there is no greater protection available for local Ahmadis in Rabwah than there is for Ahmadis elsewhere in Pakistan.
23. For those who move to Rabwah, from other parts of Pakistan, the prospects are, on the evidence we have seen, to be viewed with even less equanimity. Unless they have friends or relations in Rabwah they may not, according to the evidence, be able to obtain accommodation. There are regulations prohibiting the sale of land in one part of Rabwah to Ahmadis, although there is some evidence of Ahmadi building on vacant land in the other part of Rabwah and outside the town centre. Further, the very fact of having moved to Rabwah may attract attention to an individual's religious affiliation.
…
25. It therefore seems to us that despite Rabwah's special profile in the Ahmadi religion it has no special status in the refugee related discourse relating to Pakistani Ahmadis. It is simply wrong to say in general that a person who has established a history of persecution or a fear of persecution as an Ahmadi in some other part of Pakistan can reasonably be expected to relocate to Rabwah. It may be that he can go to Rabwah for a short time. It may be that for that short time he will be safe. But, save in exceptional circumstances, for example if he has family or relatives in Rabwah, despite the majority of inhabitants there, he may not in fact be reasonably practicably able to live there and, if he does, he will be no safer than anywhere else: because the governmental, official structure and seat of power is the same as elsewhere in Pakistan and the fundamentalist anti-Ahmadi religious group, the KN, is as active there as anywhere else, if not more so."
(i) "It is clear that he moved from Rabwah to Karachi to progress his education and to take advantage of work opportunities. It was not because he was persecuted in Rabwah."
(ii) "The physical ill-treatment he claims to have suffered was at the hands of the police rather than the Khatame Nabbuwat."
The Secretary of State then pointed out that the Immigration Appeal Tribunal in IA also found that:
(i) in [4], "Ahmadis in Pakistan are subject to more than occasional outbursts of persecution from Sunnis particularly acting under the auspices of the body called the Khatame Nabuwwat (KN). … But it is the activities of that organisation, the KN, which form the basis of many claims of persecution by Ahmadis. The organisation has branches throughout Pakistan and in particular throughout Punjab province and, specifically, there is a strong branch in Rabwah because, although ninety-five per cent or more of the population are Ahmadis, there is a minority who are not Ahmadis and Rabwah is the place where Ahmadis can evidently be found if there should be anybody who seeks to take action against them."
(ii) At [6], "Thus the position has sometimes been, in Ahmadi cases, that a person has claimed to be a follower of the religion; has been therefore assumed for the reason that we have already indicated to be a person who will attempt to convert others; has been at risk from activities of the KN; even if his conduct was clearly not illegal he has been at risk of unmerited prosecution against which defence would be difficult; there has been the further risk of illegal or violent activity by the KN."
(iii) At [30], "… On the findings of fact that the Immigration Judge made he should have recognised that the risk from the KN was as real in Rabwah as it was elsewhere in Pakistan …"
The Secretary of State therefore concluded in paragraph 13 of his decision letter that as the appellant was found credible of persecution in the hands of the police and not from Khatame Nabbuwat as was the case in paragraphs 4, 6 and 30 of IA, the appellant's circumstances differed from that case and it did not apply to the appellant.
"That reasoning [of the IAT in IA] … proceeds by the following steps:
(a) It is not necessarily the case that an Ahmadi who reasonably fears persecution elsewhere in Pakistan can safely relocate to Rabwah.
(b) An Ahmadi who does move to Rabwah may not be able to remain there for long; and for those who are able to remain in Rabwah, safety is not assured because local power is not in Ahmadi hands and the KN is at least as active in Rabwah as elsewhere.
(c) But this does not mean that no Ahmadi can be reasonably safe in Rabwah. As in the rest of Pakistan, the incidence of harm to Ahmadis there is not high.
(d) What matters therefore is the particular risk faced by the individual Ahmadi and the reasons for it.
(e) It follows that, for those who can establish a well-founded fear of persecution elsewhere in Pakistan, Rabwah is not to be assumed to be either generically safe or generically unsafe. The issue must be determined case by case."
(i) at [26], "It is clear that he moved from Rabwah to Karachi to progress his education and to take advantage of work opportunities. It was not because he was persecuted in Rabwah."
(ii) at [28], "I do not find that he was particularly conspicuous to religious extremists because of his religious activities per se – or would be now if he returned and resumed the same level of activities."
(iii) at [28], "His evidence of his activities in Pakistan do not indicate that he was a high-profile preacher who would attract attention as a result of proselytising his beliefs. I did not find on his evidence that he had a prominent role as a preacher with a significantly high profile that would call particular attention of religious extremists to him. … I do not find a real likelihood that he had a specific role of a preacher of the Ahmadi faith, over and above what every Ahmadi has a duty to do."
"i. The fact that the appellant and his family have been targeted in more than one town in Pakistan by non-State agents connected to extremist groups itself suggests that they are likely to be known or to become known as previous targets of non-State agents who themselves are likely to have national connections which bring this information to light, and
ii. Because the appellants in MJ and ZM had suffered ill-treatment at the hands of non-State agents whereas the appellant's case involves not merely past ill-treatment by non-State agents but also ill-treatment from organs of the State, namely the police, and a future risk of ill-treatment from both non-State and State organs (note the appellant's case as to continuing police interest and accordingly the risk of institutionalised or national interest, which, having referred to the comments made by the Tribunal in IA about the difficulties in Rabwah, may well be enough to persuade an Immigration Judge that this particular appellant cannot be safely expected to go there)."
"Furthermore as you stated in paragraph 8C of your letter: 'He is an exceptional Ahmadi who cannot return safely to his home area and is unable to relocate to Rabwah'. Your client was born in Jaranwala where he spent most of his life. He then moved to live in Rabwah and as noted paragraph 22 of the determination promulgated, the adjudicator states: 'However he gave no evidence of having been persecuted in Rabwah, he moved there to Karachi for his education and because of work opportunities – in reply to question 9 of the interview he said he moved to Karachi because there were no job opportunities in Rabwah'. Your client did not state that he had been persecuted in Rabwah to move to Karachi because there were no job opportunities in Rabwah. In paragraph 4 of the headnote of MJ and ZM … to which you refer in your submissions, the AIT concluded that:
"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 [paragraph 4, headnote – emphasis added].
It is not accepted that your client is such an exception that he is at risk in Pakistan as a whole."
"Whilst I consider there is a serious possibility that the events in Jaranwala occurred – essentially directed against his parents rather than the Appellant who was in his mid-teens when the events occurred. I do not find that those events would lead to a serious likelihood of persecution being directed against the Appellant if he returned there now," (my emphasis being added).
Conclusions
"I must remind you that your client has no basis to stay here, however arrangements will not be made to remove your client to Pakistan while his application for judicial review is ongoing."
His claim for judicial review is now dismissed. Enough of the whirligig. The Secretary of State is now entitled to take steps to remove him.
Lord Justice Tomlinson:
Sir Mark Potter: