Kaleem Ahmed v. Secretary of State for the Home Department

 

Kaleem Ahmed v. Secretary of State for the Home Department, Appeal No. HX 72861/94 (12774)

IMMIGRATION APPEAL TRIBUNAL Date heard: 20 November 1995 Date Determination notified: 7 December 1995 Before:
His Honour Judge D S Pearl (Chairman)
Mr G J Brown JP
Mr U R Cadogan JP

DETERMINATION AND REASONS

INTRODUCTION

In this case, the appellant is represented by Mr Sorjoo of Consel and Mr Thursby represented the Secretary of State. The background to this case is as follows. The appellant, Kaleem Ahmed, a citizen of Pakistan and an Ahmadi born on 13th March 1966, appealed against the decision of the Secretary of State taken on 25th March 1994 to refuse his application for asylum in the UK. The appellant appealed and his appeal came before a Special Adjudicator, Mr C J Yelloly, on 5th December 1994. The appeal was dealt with on the basis of the documentation submitted to the Special Adjudicator because the Refugee Legal Centre (who were then his representatives) asked for the case to be dealt with in this way. The RLC enclosed (according to the determination of the adjudicator) considerable documentation; namely "15 further documents and statements as evidence in the case and made representations running to some 5 pages in regard to the respondent's reasons for refusal". The respondent provided 2 further pages of comment on the appellant's submissions. There was further communication from the appellant's representatives relating to the identity of a person named in the First Information Report and a Judgment of a Court. The adjudicator analysed all evidence before him. He wrote as follows:

"Having regard to paragraphs 71, 72 and 73 of the UNHCR Handbook, while I accept that some restriction is placed upon Ahmadis to manifest their religion in public in teaching, practice, worship and observance, these paragraphs must be applied with a sense of proportion and for the reasons already set out I do not accept that the Ahmadis are persecuted as a religious group per se.

as regards the particular position of the appellant, I take note of the terms of the first information report dated 15th December, 1989 at page A2 of the respondent's bundle relating to the appellant and the similar report dated 10th September, 1988 in relation to the appellant's cousin and nine other defendants, together with the associated judgement dated 16th November, 1992 in the Magistrates court in Faisalabad.

As regards the judgement, the Court appears to have heard evidence from both sides and came to the conclusion that the main offence had been committed by all the defendants and a further offence had been committed by one of them. The sentence for each offence was three years imprisonment, and in the case of the sole defendant to be convicted of two offences the sentences were to run concurrently. Without evidence of local circumstances, it is impossible for an adjudicator to say whether the sentences are harsh, but I do not consider that they are disproportionate to the extent that they indicate persecution rather than a deterrent punishment.

As regards the first information report relating to the appellant, I note that the alleged offence under Article 298 (c) of the relevant code, the Qadyani Ordinance of 1984, is the same Article under which the ten defendants in the earlier trial were prosecuted. Although it is not entirely clear, I assume that this is Ordinance xx of 1984 which is referred to elsewhere and by Karen Parker in her commentary. In passing, I find her comments on the Ahmadi case of limited assistance without a copy of the judgement concerned. A commentary on selected extracts does not enable a picture of the judgement as a whole to be formed. The source of the two first information reports and the judgement is not clear. However, the respondent has not challenged their authenticity and for the purposes of this adjudication I assume that they are authentic.

Looking at the evidence as a whole, I have come to the conclusion that while a subjective element of a fear of persecution has been made out, causation for a Convention reason and also the objective element have not. The appeal is, accordingly, dismissed."

The appellant sought leave to appeal against this determination, but the application for leave to appeal was dismissed by Mrs Chatwani. The grounds for leave are as follows:

"1.The adjudicator, who appears to accept the general credibility of the appellant whom he did not hear give evidence, states in the final paragraph on page 6 of the determination that:-
"Looking at the evidence as a whole, I have come to the conclusion that while a subjective element of a fear of persecution has been made out, causation for a Convention reason and also the objective element have not."

It is respectfully submitted that the "causation" of the appellant's subjective fear of persecution is clearly by reason of his religion. It is submitted that the adjudicator's finding in this respect is totally against the weight of the evidence which he appears to accept (second paragraph on page 5 of the determination refers particularly) and that accordingly doubt is case upon his negative finding regarding the "objective element".

2.In the fourth paragraph on page 5 of the determination the adjudicator states in reference to the appellant's representative's letter of 2 December 1994 along with its enclosures, that:-

"…the Executive has felt it necessary to impose restrictions [on the Ahadi religion]. However, I accept that the main objective of imposing these restrictions is to try and prevent breakdown recurring in the future, and they are not primarily motivated by a desire to restrict the practice of faith."

In the second paragraph on page 6 of the determination the adjudicator states:

"The sentence for each offence [under Article 298c of the Pakistan Penal Code] was three years imprisonment … Without evidence of local circumstances, it is impossible for an adjudicator to say whether the sentences are harsh, but I do not consider that they are disproportionate to the extent that they indicate persecution rather than a deterrent punishment."

It is submitted that the adjudicator has erred in law in the following respects:-

(a)by finding that it is reasonable for the Pakistani authorities to restrict by law the peaceful and in many respects private practice of the Ahmadi religion: of. Article 18 of the Universal Declaration of Human Rights; Article 18 of the International Covenant on Civil and Political Rights. Article 9 of the European Convention on Human Rights; Paragraph 71 in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.

(b)by finding that three year prison sentences for the peaceful practice of one's religion does not amount to persecution within the meaning of Article 1A(2) of the 1951 Convention. The Articles raised under ground (a) above are also relevant to this ground along with directly analogous situation of a regime in a Catholic dominated country imposing three year prison sentences on for example, Lutheran Protestants for the Offences f "pretending" to be Christians and of using Christian symbolism in the practice of their religion: of. Article 3 of the 1951 Convention.

(c)by contrasting "persecution" from "deterrent punishment" in such a way as to imply that the latter can never amount to the former. It is submitted that "deterrent punishment" in this case can and does amount to persecution.

In the context of this ground of appeal it is noted that the adjudicator accepts that the appellant is also facing charges for an alleged offence under Article 298c of the Pakistan Penal Code (third and fourth paragraphs, on page 6 of the determination refer)."

Mrs Chatwani took the view that this was not a proper case to grant leave and leave was refused. Her decision was subsequently quashed on judicial review by Popplewell J (we assume for the reasons contained in the grounds submitted to Mrs Chatwani), and in consequence Professor Jackson granted leave on 12th October 1995.

THE AHMADI MOVEMENT

"As this case raises issues of general importance it may be valuable to set out, unusually in some detail, the theological background to the Ahmadi movement. The most succinct description the Tribunal has found, is the entry by Professor Yohanan Friedmann in the Oxford Encyclopedia of the Modern Islamic World (1995). The entry is as follows:

"AHMADIYAH. A messianic movement in modern Islam, the Ahmadiyah has been one of the most active and controversial movements since its inception in British India in 1889. It has sustained its activities for more than a century and has been unrivalled in its dedication to the propagation of the faith. Ahmadi mosques and missionary centers have been established not only in the Indian subcontinent bur also in numerous cities of the Western world, Africa, and Asia.

The core of Ahmadi thought is prophetology, which draws its inspiration from the great medieval Muslim mystic Muhui al-Din ibn al-Arabi (1165-1240), who postulated an uninterrupted succession of nonlegislative prophets following Muhammad. Claiming for its founder messianic and prophetic status, the Ahmadi movement aroused the fierce opposition of Sunni Muslims and was accused of rejecting the dogma according to which Muhammad was the last prophet. While India was under British rule, the controversy remained a doctrinal dispute among private individuals or voluntary organizations, but when the Ahmadi headquarters moved in 1947 to the professedly Islamic state of Pakistan, the issue became a constitutional problem of major importance. Religious scholars belonging to the Sunni mainstream demanded the formal exclusion of the Ahmadis from the Islamic fold and achieved that objective in 1974. The history of the Ahmadi movement thus affords a unique example of the intricate relationship between religion and state in Islam, an example in which secularly elected members of political institutions arrogated to themselves the authority to determine the religious affiliation of a group of citizens, and to draw constitutional conclusions from this determination.

History. Murza Ghulam Ahmad, the founder of the Ahmadi movement in Islam, was born in the late 1880s in Qadian, a village in the Punjab. His claim to special spiritual standing was first announced in the early 1880s. the movement was established in March 1889, when Ghulam Ahmad accepted a pledge of allegiance from a number of his followers in the Punjabi city of Ludhiana. He devoted the following years to prolific literary activity, to the organization and expansion of the new community, and to many polemical encounters with Sunni ‘ulama' Christian missionaries, and members of the Hindu revivalist movement of Arya Samaj. A number of periodicals were launched in Qadian: including the monthly Review of Religions, the main English organ for the propagation of the Ahmadi view of Islam.

Ghulam Ahmad died on 26 May 1908. He was succeeded in the leadership of the community by Nuruddin, one of his first supporters, who became the first "Successor of the Messiah" (khalifat al maslh). During his leadership, the unity of the movement began to be threatened by differences of opinion on issues such as the relationship with non-Ahmadi Muslims and the nature of the community's leadership.

Nuruddin died in 1914 and was succeeded by Ghulam Ahmad's son Bashiruddin Mahmud Ahmad. The differences in the movement now came to a head, and the Ahmadiyah split into two factions, known as the Qadiani and the Lahori. The Qadiani faction, which was larger and retained control of the movement's headquarters and of its main publications, was headed by Mahmud Ahmad, now known as khalifat al-masih II; the prominent personalities among the Lahoris were Muhammad Ali and Khwajah Kamaluddin. In addition to personal friction among members of the two groups, the focal points of disagreement were the natural, of Ghulam Ahmad's religious claim, the extension Mahmud Ahmad's authority in community affairs, and the attitude to be adopted toward non-Ahmadi Muslims. The Qadianis stressed Ghulam Ahmad's claim to prophethood, maintained that Mahmud Ahmad's religious authority was not less than that of Ghulam Ahmad and left little doubt that they considered non-Ahmadi Muslims infidels. The Lahoris, on the other hand, held that Ghulam Ahmad never claimed to be more than a "renewer (mujaddid) of religion"; they suggested that the commnity leadership be entrusted to a group such as the Supreme Council of the Ahmadiyah (Sedr Aujuman-i Ahmadiyah) rather than to one successor of the messiah; and they deemed infidels only those Muslims who regarded the Ahmadis the same. This attitude toward non-Ahmadis was intended to minimize friction with other Muslims.

Following the split, the Ahmadis continued their missionary and literary activity. The two factions renounced any connection with each other. The Lahori publications deal almost exclusively with familial themes of Islamic modernism. They contain few references to ideas that distinguish the Ahmadiyah from the Islamic mainstream. The Qadiani Review of Religions, however, continued to stress the crucial role of Ghulam Ahmad in the spiritual history of mankind. Its pages provide translations from Chulam Ahmad's works and details of such Ahmadi missionary activities as the establishment of mosques and centers and cases of conversion to Islam. Several new institutions were established in Qadian by order of Mahmud Ahmad in order to coordinate the worldwide missionary and literary endeavors of the movement.

Following the partition of the subcontinent in 1947, the headquarters of the movement moved to Pakistan, where a town called Rabwa (after Qur'an 23. 51) was built in order to serve as the new center of the Ahmadiyah. In Pakistan the movement faced increasing difficulties. Various Islamic groups, led by the Jama at-i Islami, insisted that the Ahmadis be declared a non-Muslim minority and excluded from public office. In the early 1950s, this agitation was directed primarily against Muhammad Zafaru'llah Khan, a prominent Ahmadi, who served at that time as Pakistan's foreign minister. The demand was accompanied by widespread anti-Ahmadi riots in the Punjab, but the government stood its ground. The Ahmadi issue came to the for again in 1974. Following a clash between Ahmadi and non-Ahmadi students in Rabwa, pressure to exclude the Ahmadis from the fold of Islam was renewed; it was accompanied by riots and threats of a general strike by the religious leadership. After some initial resistance, prime Minister alfiqar Ali Bhutto's government gave way and the National Assembly decided "to discuss the status in Islam of persons who do not believe in the finality of the prophethood of Muhammad (peace be upon him)." After lengthy deliberations behind closed doors, the Assembly met in open session on 7 September 1974 and unanimously decided to amend the constitution of Pakistan by adding a clause stipulating that a person who does not believe in the absolute and unqualified finality of the prophethood of Muhammad (peace be upon him), the last of the Prophets, or claims to be a Prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him), or recognizes such a claimant as a Prophet or a religious reformer, is not a Muslim for the purposes of the Constitution or Law.

In April 1984, in the context of intensifying the Islamic characteristics of public life in Pakistan, President Muhammad Zia ul Haq promulgated an ordinance offense. Among other things, the Ahmadis were forbidden to refer to their faith as Islam, to preach or propagate it, or to call their places of worship mosques. All these offenses were made punishable by three years of imprisonment and a fine. In the wake of this ordinance, Mirza Tahir Ahmad, the present head of the Ahmadiyah, moved to London, where he still resided in the early 1990s.

Summary. The dispute between the Ahmadiyah and mainstream Sunni Islam stems from different approaches to the question of religious authority. As a messianic movement claiming a certain kind of prophethood for its founder and continuous divine inspiration for his successors, the Ahmadiyah was bound to clash with the ‘ulama', who felt that their authority as custodians of Islamic learning and interpreters of Islamic law was being undermined. The dispute was exacerbated by the fact that the ‘ulama' focused their opposition to the Ahmadiyah on the emotional issue of Muhammad's honor, which was said to have been tarnished by Ghulam Ahmad's claim to be a receiver of divine revelation after the completion of Muhammad's mission.

As far as the Ahmadi struggle within Islam is concerned, the main point of contention is thus the religious claim of Ghulam Ahmad, which is couched in terms derived from medieval Sufism. In its Ahmadiyah is primarily engaged in defending Islam and depicting it as a liberal, humane, and progressive by non-Muslims. This aspect of Ahmadi Leaching is well in line with that of modernist Muslim thinkers, though in other matters - for example, in their support for pardah and polygamy - the Ahmadis follow the traditional point of view. One of the essential differences between them and other contemporary Muslim movements is that the Ahmadis consider the peaceful propagation of their version of Islam among Muslims and non-Muslims alike to be an indispensable activity; in this they are persistent and unrelenting."

AHMADIS IN PAKISTAN

On 3rd July 1993, the Supreme Court of Pakistan decided the question whether the 1984 Ordinance (reterred to in Professor Friedmann's entry) was ultra vires the Pakistan Constitution. Section 298c of the Ordinance states:

"Any person of the Quadinani or the Lahori group (who call themselves "Ahmadis" or by any other name) who, directly or indirectly, poses himself a Muslim or calls, or refers to, his faith as Islam or preaches or propagates his faith, or invites others to accept his faith, by words either spoken or written, or by visible representations or in any other manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to a fine."

The Supreme Court decision is referred to in the important document "Country Reports on Human Rights Practices for 1994" (US Department of State, February 1995) The Tribunal has been able to obtain a copy of the Supreme Court decision referred to by Karen Parker in her Commentary and by the adjudicator and the Tribunal informed both representatives of this fact. By a majority, the Supreme Court concluded that the Ordinance was not ultra vires. Chaudhry J said:

"The appellants… insist not only for a licencc to pass off their faith as Islam but they also want to attach the exclusive epithets and descriptions etc., of the very revered Muslim personages to those heretic non-Muslims who are considered not even a patch on them… The Ahmadis like other minorities are free to profess their religion in this country and no one can take away that right of theirs, whether by legislation or by executive order. They must however honour the Constitution and the law and should neither desecrate or defile the pious personage of any other religion including Islam, nor should they use their exclusive epithets, descriptions, and titles and also avoid using the exclusive names like mosque and practice like "Azam" so that the feelings of the Muslim community are not injured and the people are not misled or deceived as regard the faith."

There is in the Department of State Report previously referred to, evidence of an increase in prosecutions brought under s 290(c) against members of the Ahmadi community in 1994. For example, in the first nine months of 1994, 17 cases were brought under s 298(c) resulting in one conviction. Rashood Ahmad was sentenced to two years in prison and fined $166 for displaying a verse from the Quran on his wall. Ahmadi journalists were arrested in January 1994 under s 298(c) because they had passed themselves off as Muslims. The Rawalpindi Development Authority demolished an Ahmadi Centre in September 1994. The Report also mentions that several prominent Ahmadis have been killed in 1994 in what some regard as sectarian murders and that investigations of the cases are continuing. The state Department Report refers also to an amendment to the Penal Code introducing s 295(c) which stipulates the death penalty for blaspheming the Prophet Mohamed. It has been used against Almadis. According to Ahmadi sources, 5 blasphemy cases, involving 15 persons, were registered against Ahmadis in the first nine months of 1994. The importance of the Department of State Report for 1994 is that it comprises a number of Amnesty International Reports, in particular the 1991 report on Violations of Human Rights of Ahmadis which concluded: "The law enforcement authorities do not appear to provide adequate protection or redress to Ahmadis who have been subjected to assault, attack or provocation by non-Ahmadis." Another AI Report, of May 1994, states that there have been 13 incidents between October 1993 and February 1994 when Ahmadis have been attacked by Islamist groups in Lahore. Two have been killed and over a dozen seriously injured. The Canadian Immigration and Refugee Board Documentation centre Report on Treatment of Ahmadis who Return (January 1992), in the Tribunal's view, is an authoritative and objective account of the position relating to Ahmadis in Pakistan. The Canadian Report concludes:

"The Ahmadiyya community continues to suffer from a policy of discrimination supported by the Islamabad government."

The Canadian Report deals with the question of passports, which is an issue in this case both appellants travelled to UK with passports which declare them to be Muslims. The Report states:

"In order to obtain a passport, Pakistanis must declare their religious adherence on the passport application form. If they declare themselves to be Muslim, they must sign the declaration for Muslims, included on the form, which states that Muhammad is the last of the Prophets and that no one since Muhammad can claim to be a Prophet; that Mirza Ghulam Ahmad…. is an imposter and that his disciples are not Muslims … The alternative would be to declare themselves Ahmadis and thus members of a new religion, but that is an avenue they cannot contemplate because they believe strongly that they belong in Islam."

The other Canadian Report, dated 1994, deals, inter alia, with the geographic distribution of incidents against Ahmadis. It would seem according to this Report that the level of harassment of Ahmadis depends primarily on the local population and administration, and it is suggested that it is easier for an Ahmadi who does not live in one of the major concentrations of Almadis to pass unnoticed.

UK CASES

Claims by Ahmadis to asylum status in the UK have been considered before on a number of occasions by adjudicators, the Tribunal, and the courts in this country. the Court of Appeal explored the issue in Ahmad v Secretary of State [1990] Imm AR 61. The Court stated that the Secretary of State was obliged to examine the Ordinance to establish its prohibitions, then to find out the practical impact of the Ordinance on the ordinary lives of individual adherents to the sect, and then to consider the position of each appellant against that background. In that case, Slade LJ said:

"It has been accepted by Mr Pannick, on behalf of the Secretary of State, that the Ordinance, by itself, was well capable of being regarded as discrimination against all members of the Ahmadi sect; but in my judgment the proposition that it was by itself capable of making the appellants liable to persecution simply by virtue of being members of the sect is quite unsustainable. The only members of the sect potentially liable to persecution would be those who proposed to act in contravention of its provisions. Nothing in the ordinance prevented persons from holding the beliefs of the without engaging in any of the specified prohibited activities.

It was apparent to the Secretary of State.. that most Ahmadis live ordinary lives untroubled by the Government despite the existence of the Ordinance."

In Shahzed (TH/63573) (14.9.93), Mr Mitchell, adjudicator, in another Ahmadi case referred to the High Court decision (although not Court of Appeal decision) in the above case. He distinguished the High Court decision, which had been upheld by the Court of Appeal, for three reasons. First, he said that the Judgment in Ahmad (in the High Court) was delivered in March 1988 when there was a dearth of specific reports of official or unofficial incidents and there is now considerable documentation. Secondly, there was in the case before him a close personal link with a person who had been convicted and sentenced under the Penal Code amendment. Thirdly, he said that if the appellant in that case were returned, he would face the risk of persecution without the protection and support of close family members all of whom were in Canada or in the UK. In Zaheer Khokhar (11251), the Tribunal said:

"In our view there can be no blanket recognition of Ahmadis as refugees. The facts pertaining to each individual claim must be assessed: if it can be shown in a particular case that an applicant for asylum has, as an Ahmadi, suffered such a degree of harassment or persecution in the past as to load to a well founded fear of persecution in the future, his application succeeds: if there be no acceptable evidence of harassment or persecution in the past and if an applicant's account of such alleged persecution be not accepted, then claim is unlikely to succeed."

Finally, in Fiaz Rasool (12134) the Tribunal remitted a case to another adjudicator because of a failure to deal with the fundamental issue in that particular case, namely whether the appellant was in fact an Ahmadi. This is not an issue in the present case.

THE ISSUES IN THIS CASE

Mr Thursby argued before us that the appellant's credibility was an issue for the simple reason that he had chosen not to give evidence before an adjudicator and we were told, through his counsel Mr Sorjoo, he would not wish to give evidence before another adjudicator if we were to remit the case de novo. We find this argument wholly devoid of merit. The issues were fully in front of the adjudicator and he was able to reach conclusions of fact based on this evidence. He formed a new that the subjective element of fear of persecution had been made out. It is our view that he was entitled to reach that conclusion on the evidence before him. The adjudicator accepted the authenticity of the FIR and the judgments and the Respondent did not Challenge their authenticity. It would be wholly wrong for adjudicators or the Tribunal to find appellant to be not credible simply because the appellant wished to rely on documentary evidence. It is our view that the sole issue in this case is the legal one whether the adjudicator was correct in concluding that "while a subjective element of a fear of persecution has been made out, causation for a Convention reason and also the objective element have not." Mr Thursby submitted on behalf of the Secretary of State that the Geneva Convention does not guarantee free speech, and, to use his words, if an Ahmadi in Pakistan goes out of his way to antagonise he must accept what follows. He referred us Khokhar (11251) for support of the view that there can be no blanket recognition of Pakistan Ahmadis as refugees. Mr Sorjoc did not dissent from the reasoning in Khckhar and indeed asked us to follow it, but submitted that the appellant in this case has a well founded fear of persecution because of the admitted evidence relating to the FIR and the Judgment which were before the adjudicator and were accepted by him as authentic.

IS THERE A WELL FOUNDED FEAR OF PERSECUTION IF
RETURNED TO PAKISTAN?

Each case involving Ahmadis must be looked at on an individual basis. It would in our view be wholly wrong to say that the discriminatory legislative provisions relating to Ahmadis means that all Ahmadis can claim asylum under the terms of the Convention. However, the evidence of the various Reports referred to above, which express and overall correct view of the position of Ahmadis, illustrates that Ahmadis live Pakistan as a religious minority who are likely to meet examples of intolerance, discrimination and sadly a times blatant persecution in their every day lives. The adjudicator has made favourable findings of credibility in this appeal on the issues which are material to the case. Bearing in mind the test laid down in Sivakumaran that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason (namely religion) if returned to Pakistan, it is our finding that the appellant is an Ahmadi who would face a reasonable degree of such likelihood of such persecution. The provisions of legislation, especially that referring to blasphemy, is sadly often used by neighbours who wish to engineer the disgrace of those who they see as "traitors". The Reports refer to examples where the Police, and often the lower Courts, simply fail to protect Ahmadis from the worst excesses. Accordingly, we allow the appeal of Kaleem Ahmed against the determination of Mr Yelloly. HIS HONOUR JUDGE D S PEARL CHAIRMAN