Ahmad and Others v. Secretary of State for the Home Department

Ahmad and Others v Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1990] Imm AR 61

Hearing Date: 6 October 1989

6 October 1989

Index Terms:

Political asylum -- religious persecution -- applications by members of the Ahmadi community refused by Secretary of State -- discriminatory government decree -- Ahmadis forbidden inter alia to proselytise or adopt the styles and titles of Muslims -- whether refusal of political asylum reasonable -- whether Secretary of State's approach was consistent with settled law -- whether the government decree per se could be held to be an act of persecution against all Ahmadis. HC 169 paras 73, 134.

Held:

Appeals from Macpherson J. The appellants were citizens of Pakistan, members of the Ahmadi community. In April 1984 a government decree was promulgated which introduced new and additional discrimination against members of the sect. In particular they were forbidden to proselytise (for a brief study of the sect and full bibliographical references, see Keith Crim (ed) Abingdon dictionary of living religions, Nashville, USA, 1981, sub Ahmadiyya) which caused difficulties for adherents of a messianic movement. The appellants arrived at Heathrow in August 1984 and claimed political asylum. their applications were refused in April 1985. An application for judicial review was dismissed. The applicants appealed. Counsel argued that the persecution of the sect had increased after the ordinance had been promulgated. Affidavit evidence from the appellants asserted they had been the victims of discrimination. Furthermore, the Ahmadis were an evangelical sect; its members had a duty to seek converts: if they carried out that duty they would suffer persecution under the ordinance. Relying on Bugdaycay, counsel also argued that the Secretary of State had not adopted the correct approach, nor had he carried out all the enquiries which he should have done. For the Secretary of State it was argued, inter alia that while the ordinance per se was discriminatory, it would not make the appellants liable to persecution simply be being members of the sect: they had not indicated to the immigration officer or the Secretary of State that they would personally feel bound to seek to make converts or otherwise breach the provisions of the ordinance. Held: 1. The Secretary of State had not erred in his approach. He 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. The evidence showed that he had done so. 2. Their cases depended essentially on what they would feel obliged to do, in proselytising, if they returned to Pakistan. They had not put any such case to the immigration officer or the Secretary of State, nor had they ever been specific about the reasons why they might be driven to contravene the provsions of the ordinance. 3. The Court had left open, in Mendis the question whether a person could claim refugee status on the basis of what, if he returned to his country, he would feel obliged to say or do. The Court, on the facts, found it unnecessary to decide that question in this case but obiter, per Farquharson LJ, recorded some views on that issue within the context of religious persecution.

Cases referred to in the Judgment:

Bugdaycay and ors v Secretary of State for the Home Department [1987] AC 514; [1987] Imm AR 250. Mendis v Immigration Appeal Tribunal and Secretary of State for the Home Department [1981] Imm AR 6. R v Secretary of State for the Home Department ex parte Gulzar Ahmad and ors (unreported, QBD, 9 March 1988).

Counsel:

A Riza for the appellants; D Pannick for the respondent PANEL: Slade, Balcombe, Farquharson LJJ

Judgment One:

FARQUHARSON J: On 2 August 1984 each of these appellants arrived at Heathrow Airport from Pakistan and applied for asylum in the United Kingdom on the ground that he feared persecution in his own country because of his religion. The applications were refused by the Secretary of State on 23 April 1985, because he was not satisfied that their fear of persecution was well-founded. In May 1985 the appellants sought leave to apply for judicial review of the decision of the Secretary of State. Through no fault of theirs such leave was not granted until 21 January 1986. The application for judicial review was heard by Macpherson J on 9 March 1988, and the present appeal is against his refusal of that application. It appears from their affidavits that the applicants, who are all in their 20's, are members of the Ahmadiya community in Pakistan. This sect, according to an affidavit, was founded in the last century by Mirza Ghulam Ahmed, who claimed to be the last prophet of Islam. There are about four million Ahmadis in Pakistan alone, but this is a small proportion of the total population of that state. Since the formation of Pakistan in 1947 the existence of this community has been precarious; there has been hostility shown towards them by other larger religious groups. On 26 April 1984 the President of Pakistan published an Ordinance, No XX of 1984, imposing severe curbs on the practice of the Ahmadi religion. The most important prohibition is contained in paragraph 298C of that Ordinance, which reads as follows: "Any person of the Quadiani group or the Lagori group (who call themselves Ahmadis or by any other name), who, directly or indirectly, poses himself as 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 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 fine." A further paragraph prohibits the sect from using any title or form of address appropriate to the Muslim religion in any part of its hierarchy. The decree was obviously directed to preventing the sect either practising the Muslim religion, calling themselves Muslim or seeking converts on the basis that they were themselves Muslims. It is the case for the appellants that persecution of their community has stepped up as a result of the promulgation of this ordinance. When the appellants arrived at Heathrow in August 1984 they were interviewed by an immigration officer. They described the difficulties under which the Ahmadis were living in Pakistan, although they had not suffered any personal violence themselves and neither had their families. However, in addition to interference with their mode of worship, they have been subject to discrimination, both in terms of their education and employment. One of them expressed fears that he would be killed if he was forced to return to Pakistan. Later in the proceedings two of the appellants, the Ahmad brothers, swore a further affidavit which was dated 3 December 1987, in which they stated that they had each suffered physical violence from the mullahs, and that members of the sect could no longer look to the police in Pakistan for protection. These last allegations appear to have been discounted to some degree by the respondent, the Secretary of State, having regard to the interval of time which has taken placed from the moment of their arrival and the swearing of that affidavit. Before this court the main thrust of the appellants' argument is that the promulgation of the 1984 Ordinance has resulted in increased harrassment of the Ahmadi community so that they can no longer practise their religion. Theirs is an evangelical sect, and it is part of their duties to proselytize their relgion by seeking converts. If they perform this duty, by reason of the ordinance already cited they are likely to be arrested and sent to prison. It is submitted that the Secretary of State did not consider the question whether the workings of the ordinance would have had this effect on these particular applicants and expose them to the penalties which had been laid down; alternatively, if he did so consider it he concluded perversely that they did not. At the time of the appellants' attempt to seek entry into the United Kingdom the relevant rules relating to applicants for asylum were contained in House of Commons Paper 169; rule 134 sets out the right to apply for asylum on the ground of religious persecution, and provides that any claim is to be carefully considered in the light of all the relevant circumstances. Paragraph 73, contained in Part 7 of the rules relating to asylum, says this: "Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees". That underlines the importance which is attached to this particular form of application for entry to the United Kingdom. It is perhaps desirable that I should refer to the text of the Convention, where "refugee" is defined in these terms: "Any person who owing to a well founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fears, is unwilling to avail himself of the protection of that country." Thus it is shown that the definition is very much in line with what is contained in the House of Commons Paper, and as I understand it nothing turns on any distinction which can be found between the two definitions. The correct approach to the application of these rules has been considered lately by the House of Lords in the case of R v The Home Secretary, ex parte Bugdaycay, reported in [1987] 1 AC 514. Indeed, it was need to await the outcome of the decision in that case which caused the delay in the present appeal. Lord Bridge, in his speech at page 531, to which we have been referred by counsel, said this: "I approach the question raised by the challenge to the Secretary of State's decision on the basis of the law stated earlier in this opinion, viz that the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to the Court's power of reivew. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny." Those observations are underlined in the speech of Lord Templeman at page 537, where he says quite shortly: "In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process." Mr Riza, on behalf of the applicants, relies heavily on those two observations because, he complains, that degree of investigation was not pursued by the Secretary of State in the present appeal. Accordingly, the questions which arise before us are, firstly: Did the Secretary of State consider all the material evidence with the case enjoined by Lord Bridge and Lord Templeman in the speeches just cited; secondly, did he come to a perverse conclusion when he decided that the appellants had failed to show that it was reasonably likely that they would be persecuted if they returned to Pakistan? Mr Riza attacks the decision of the Secretary of State on both those grounds. He submits that the Secretary of State's approach to the decision that he had to make on the application before him was flawed because he did not first consider whether the ordinance itself amounted to persecution of members of the Ahmadi sect. Mr Riza suggests that he would be bound to have concluded that it did, on the basis of the text of the ordinance itself. Secondly the Secretary of State, having found that the ordinance itself was an instrument of persecution, should have examined the evidence of the applicants in the light of that finding. That evidence would reveal the nature of their religion which is dealt with in some detail; the fact that it is of an evangelical nature, and their own determinaion to practise it on their return. If the Secretary of State had found those facts, which Mr Riza suggests would be inevitable in all the circumstances, he must inevitably have concluded that the applicants had a well founded fear of persecution; their proselytizing and fulfilling the other requirements of their religion would immediately have placed them in conflict with the authorities by reason of their breach of the ordinance. Plainly, on the evidence of the facts which had occurred up to the time of the entry of these applicants in August 1984, it was unlikely that the Secretary of State could have found that there was a well-founded fear of persecution at that time. The real thrust of the case which is now before us is that because of the impact of this ordinance upon the Ahmadi community and the determination of the applicants to pursue their religion, inevitably the Secretary of State must have come to the conclusion suggested by Mr Riza. This argument -- that is to say that the appellants had a well-founded fear of persecution, not so much because of acts which they had done but because of acts that they proposed to do in the future -- has been advanced before this court in the case of Mendis v Immigration Appeal Tribunal and The Secretary of State for the Home Department, [1989] Imm AR 6. In that case the court considered the proposition that a person who asserted that if he returned to his home country he would be obliged to speak up and give voice to unpopular opinions which would lead to persecution, could on that basis alone claim refugee status. Taken to its logical conclusion, that would enable a person, as Balcombe LJ point out in his judgment, to claim refugee status by deliberately inviting persecution. As counsel for the Secretary of State in that case submitted, the purpose of the convention is to protect people against the risk of persecution for political or religious reasons, and not to provide a world wide guarantee of freedom of speech. The court did not come to a concluded view in that case, Neill LJ in particular preferring to leave the question open. For my part, I would agree that a person cannot obtain refugee status on the basis that he has a fear of persecution if he returns to his national country and proceeds to break its laws. At the same time I do not consider that there are no circumstances in which a person could claim to be a refugee if he proposes to exercise what are widely regarded as fundamental human rights in the knowledge that persecution will result. In a religious context the position of a priest may be different from that of an ordinary member of the community, or the offending statute itself may be so draconian that it would be impossible to practise the religion at all. It would depend to a very large extent on where, in the spectrum of religious observance, a particular applicant proposed to be active; somebody who merely attended his place of worship from time to time throughout the year would, as I have just indicated, be contrasted with an active clerical figure. However that may be, these matters should in my judgment be taken into account by the Secretary of State in relation to the particular individual whose application for asylum he is considering. In the present case I find that the submission is not a realistic one. The Secretary of State looked very carefully at all the affidavit evidence in this case, and it is right to say that there is no evidence from the appellants either that they have, or that the intended to, seek converts, or so to practise their religion as to invite the sanctions provided by the ordinance. Mr Riza points out that on their affidavits they do declare their intention to observe their religion and, as is explained in the evidence, that religion involves the practices to which I have already alluded. But in my judgment in a case of this kind, if the appellants are going to place themselves in conflict with the law by breaking the Ordinance -- in this case Ordinance No XX of 1984 -- it is incumbent upon them to be more specific as to the reasons why they are driven to do so. Mr Riza further suggests that if there were any doubt about that, following on the observations of Lord Bridge and Lord Templeman it then became incumbent upon the Secretary of State to make enquiries as to what religious activities the appellants proposed to follow on their return to Pakistan. For my part I do not find it possible to say that the Secretary of State did fail in his duty in not making those further enquiries. Furthermore, in my judgment, it was not the duty of the Secretary of State to approach his findings in the sequence which Mr Riza suggests. His task in this case was first of all to examine the text of the ordinance itself so as to understand the prohibition -- and serious prohibitions they were -- against the sect practising their religion; it was then his task to find out as best he could the way in which that ordinance had been applied in recent years, or at least up to the time he was considering the application, to discover what effect it was having on the ordinary lives of the individual members of that religion. He was best able to do that, and indeed did so in this case, by seeking help from another agency of Government. Finally, it would then be his duty to consider the position of each of the appellants in turn against the background of these factual findings. Did the Secretary of State carry out the task? We have been referred by Mr Pannick to the affidavit of the officer who was appointed to deal with this matter on behalf of the Secretary of State, Miss Angela Underhill. It will not, I think, be necessary in the delivery of this judgment to read out the affidavit, or the relevant parts of it, in full, but I point to paragraph 20 of the affidavit, on page 62 of the agreed bundle, where she said in terms that each case was considered individually by the Refugee Section of the Home Office, but that the cases were also considered in the context of the position of the Ahmadi sect as a whole in Pakistan. The affidavit goes on: "For this purpose use was made, amongst other things, of information provided to the Home Office by the Foreign and Commonwealth Office." She then proceeds to describe the position as it was disclosed in the evidence available to her, in the context of what I have just described as being necessary. At the end of her affidavit she specifically notes instances where there has been prejudice, or even persecution of individual members of the Ahmadi sect, but overall, having considered those matters and having looked at the position of each of the applicants individually, the Secretary of State concluded that none of the applicants had shown that it was likely he would be persecuted or that he would have a well founded fear of being so. This court always has to be careful not to attempt to substitute its own view of that particular finding of fact. That duty is cast upon the Secretary of Stae, and it is the task of this court, on consideration of all the matters that have been laid before it, to determine firstly if the Secretary of State's decision can be faulted on the basis of Wednesbury or, more specifically, whether his decision could properly be described as perverse. In my judgment, in neither of those matters have the appellants succeeded, or indeed come within measurable distance of doing so. For those reasons I would uphold the judgment of Macpherson J and dismiss this appeal.

Judgment Two:

BALCOMBE J: I agree that this appeal should be dismissed.

Judgment Three:

SLADE LJ: I also agree and wish to add only a few observations of my own. Mr Riza rightly reminded us that since the result of a flawed decision on the part of the Secretary of State might imperil the liberty of the appellants through the operation of the 1984 Ordinance in Pakistan, this court must be especially diligent in its examination of the Secretary of State's decision-making process. The speeches of Lord Bridge and Lord Templeman in the Bugdaycay case are sufficient authority for that proposition. Subject to this, however, I think it plain that the Secretary of State's decision now under attack can be attacked, if at all, only on conventional Wednesbury grounds, and that the test to be applied in this contex is not different from that applicable in any other case in which Wednesbury grounds fall to be considered. The Secretary of State rejected the appellants' application for leave to enter this country on the basis of a decision of fact, namely that their stated fear of persecution for reasons of religion if they returned to Pakistan was not well founded. The rejectionof the application on the basis of this decision of fact cannot be interfered with by this court unless it is satisfied that the decision of fact was either perverse or that one of the other conditions in which our courts will review the exercise of an administrative discretion are present in this case. Ground one of the notice of appeal submitted that the judge erred in law in holding that the Ordinance "was not capable, of itself, of making the appellants liable to persecution for reasons of religion". 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 sect, without engaging in any of the specified prohibited activities. Apart from that proposition, Mr Riza's adroit and foreful argument for the appellants covered a lot of ground which with all due respect to it, seemed to me from time to time to shift in rather different directions. But in the end, the all-important propositions, I think, resolved themselves essentially to the following. The appellants are members of the Ahmadi sect. Their evidence, it is said, shows that members of this sect regard it as part of the practice of their religion to try to convert other persons to it. The appellants, it is suggested, being diligent and faithful members of the sect, will feel normally bound to propagate their faith if and when they return to Pakistan. In so doing, it is suggested, they will inevitably fall foul of section 298C of the Penal Code introduced by the 1984 Ordinance, with consequent risk of imprisonment. If the Secretary of State had borne these points in mind, it is suggested, he could reasonably have reached only one decision on the question of fact before him, namely that the appellants had a well grounded fear of persecution. Any other decision, it is submitted, would have been perverse. I will say nothing about the position which might have arisen if pleas, or submissions, on these lines had been specifically presented to the immigration officer or the Secretary of State by the appellants when, or after, they made their application for leave to enter. As Farquharson LJ has explained, it seems clear that, though many other grounds for the appellants' alleged fear were put forward to the immigration officer or the Secretary of State, no submissions at all on the lines now relied on were made. It was not suggested that the appellants, on returning to Pakistan, would feel morally bound, or indeed would intend, to disobey the Ordinance; and it has once again to be emphasised that it would only be conduct in disobedience to the Ordinance which would in fact expose them to potential loss of liberty. It was apparent to the Secretary of State, as appears from the affidavit sworn on his behalf by Miss Underhill, that most Ahmadis live ordinary lives, untroubled by the Government despite the existence of the Ordinance. In my judgment he would have been fully entitled to assume that if the appellants, on returning to Pakistan, would intend to disobey the Ordinance and such intention constituted the reason, or a predominant reason, for their stated fear, they would have said so, either to the immigration officer or to the Home Office. In my judgment, Mr Pannick was right in submitting that if an applicant, as an alleged refugee, does not suggest a particular ground which causes his fear, the Secretary of State is under no obligation to suggest such ground to him or to make particular enquiries directed to discovering whether that ground may indeed exist. In my judgment, the Secretary of State's decision on the crucial question of fact, to which I have already referred, is in all the circumstances unassailable on Wednesbury grounds. As Farquharson LJ has pointed out, and as Mr Riza has accepted, it is not the function of this court to make the decisin of fact itself. Finally, for my part I would prefer to say nothing about the difficult issues of law raised by the Mendis case which, on the facts of this case, do not seem to me to arise. In all the circumstances, these appeals must be dismissed.

DISPOSITION:

Appeals dismissed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Iqbal & Co, London W2; Treasury Solicitor.

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