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You are here: BAILII >> Databases >> European Court of Human Rights >> YI v the United Kingdom - 6071/12 [2012] ECHR 374 (27 January 2012) URL: https://www.bailii.org/eu/cases/ECHR/2012/374.html Cite as: [2012] ECHR 374 |
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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