Upper Tribunal (Immigration and Asylum Chamber)

THE APPELLANTS’ CASE HISTORIES

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THE PAKISTAN PENAL CODE

REPORTS BY THE AHMADIYYA COMMUNITY OF INCIDENTS OF HARM

INTRODUCTION TO THE EXPERT AND OTHER WITNESSES

i. Dr W who is a Doctor of Philosophy from the University of Punjab and a historian.  He holds a post at the Centre of South Asian Studies and he is also a fellow at a College at the University of Cambridge. He was anonymised with the consent of the respondent.

ii. Imam Rashed was born in Qadian, India. Since 1983 he has been stationed in London as Imam of the London Ahmadi Mosque and missionary in charge, planning and supervising missionary activities in England, Wales, Scotland and Northern Ireland.

iii. Dr Sarah Ansari, who is a Reader in the history of South Asia at the Department of History, Royal Holloway, University of London.

iv. Dr Zahida Hamid, a national of Pakistan who is a medical doctor and who has been granted asylum.

v. Dr Iftikhar Ayaz who is a senior member of the UK Ahmadiyya Muslim Association and was National President of the UK Chapter.

vi. Dr Martin Lau, a barrister and a Reader in Law at the law department of the School of Oriental and African Studies, University of London where he teaches courses on South Asian law at postgraduate and undergraduate level.

vii. Ms Asma Jahangir, President of the Supreme Court Bar Association of Pakistan. In 2004, she was appointed United Nations Special Rapporteur on Freedom of Religion or Belief of the Council of Human Rights.

UNHCR ELIGIBILITY GUIDELINES FOR ASSESSING THE INTERNATIONAL PROTECTION NEEDS OF MEMBERS OF RELIGIOUS MINORITIES FROM PAKISTAN DATED 14 MAY 2012

“Alongside the blasphemy provisions, section 298B and 298C of the Penal Code impose severe limitations on the exercise of the Ahmadi faith.  These restrictions, which encompass a prohibition to proselytise, were found to be incompatible with international human rights law (by the UN Sub Commission on Prevention of Discrimination and Protection of Minorities) in 1985 (including the right to freedom of thought, expression, conscience and religion and the right of religious minorities to profess and practise their own religion).  This has led many human rights observers to question whether sections 298B and 298C can be justified on the ground of public order or safety.  Furthermore, the vagueness of language reportedly opens 298B and 298C to the same type of abuse as the blasphemy laws.”

“Anti-Ahmadi sentiment is reportedly tolerated by the authorities. For example, the Punjab Government allowed Muslim religious leaders to hold an anti-Ahmadi conference in Rabwah on 7 September 2008, on the anniversary of the constitutional amendment which declared Ahmadis to be non-Muslim.  Rallies and campaigns promoting intolerance and discrimination against Ahmadis, whether through traditional media, or distribution of pamphlets, use of stickers and wall graffiti, are reported across the country.  It is also reported that hate speech and incitement to violence against Ahmadis, including by Islamic scholars, remain largely unchecked and/or unpunished by the authorities.

Areas where discrimination against the Ahmadi community is institutionalized reportedly include issuance of passports and national identity cards, voting, property rights, access to education and freedom of expression and press.

The Government designates religious affiliation on national identity cards and passports, and requests religious information in national identity card applications. Designation as ‘Muslim’ requires a written denunciation of the founder of the Ahmadi faith as a false prophet.  This requirement has a particularly negative impact on Ahmadis and effectively prevents them from participating in the hajj or other Islamic pilgrimages.  It also affects the distribution of cash assistance for internally displaced Ahmadis.  A Government initiative to abolish the religious identification column in Pakistani passports was abandoned in March 2005, allegedly in response to pressure from Islamist religious parties.  Pakistani citizens are also required to take an oath denouncing the founder of the Ahmadi movement in order to be listed as ‘Muslim’ on the electoral roll.  Ahmadis, who refuse to disavow their claim to being Muslim, are thus effectively disenfranchised from participating in elections.  It is further reported that, pursuant to a scheme to be introduced by the Punjab provincial authorities, Ahmadis may be required to identify themselves as ‘Qadiani’ on the national identification cards, which, if implemented, may put them at greater risk of being targeted.

The Constitution prohibits discrimination on religious grounds with regard to admission to State-funded educational institutions.  Prospective students must, however, declare their religious affiliation on the application form.  Those who identify themselves as Muslim must declare in writing that they believe in the finality of the Prophethood, a requirement that singles out Ahmadis.  Furthermore, it is reported that Ahmadis, alongside other religious minorities, continue to face discrimination in access to higher education.  Ahmadis also appear to face discriminatory practices in public sector employment.  It is reported that some Government departments refuse to hire or retain Ahmadis, who are also unlikely to be promoted in senior positions within the civil service.

Although pursuant to section 298B(1) of the Penal Code Ahmadis are forbidden from calling their places of worship mosques, no formal restrictions on establishing places of worship exist.  In practice, however, local authorities often refuse Ahmadis permission to build places of worship, and existing ones are at times closed, destroyed, desecrated or illegally expropriated.  In addition, Ahmadis have been barred from holding public conferences since 1983.  Their publications are banned from public sale, and the publishing houses are sometimes closed down and their staff harassed.

Denial of shelter and/or relief aid to forcibly displaced members of the Ahmadi community from Dera Ghazi Khan, Muzaffargarh and Rajanpur districts in the context of massive floods in South Punjab in August 2010 was also reported.

The existence of laws which are discriminatory and/or otherwise in breach of international human rights standards does not, of itself, amount to persecution within the meaning of the 1951 Convention and its 1967 Protocol.  An assessment of the implementation of the blasphemy, anti-Ahmadi and other discriminatory provisions and their effect is critical to establishing persecution.  In determining whether restrictions on the right to freedom of belief and religion rise to the level of persecution, the breadth of the restrictions and the severity of the punishments incurred must be considered.  The importance or centrality of the practice within the religion and/or to the individual concerned is equally relevant.

In light of the foregoing, UNHCR considers that members of the Ahmadi community, including those targeted by Islamic extremist elements or charged with criminal offences under the blasphemy or anti-Ahmadi provisions, are likely to be in need of international refugee protection on account of their religion, depending on the individual circumstances of the case.”

THE US DEPARTMENT OF STATE, INTERNATIONAL RELIGIOUS FREEDOM REPORT FOR 2011

(i) Religious parties oppose any amendments to the constitution affecting its Islamic clauses, especially the ones relating to Ahmadis.

Section II, Status of Government Respect for Religious Freedom

Legal/Policy Framework

(ii) In cases in which a minority group claimed its religious feelings were insulted, the blasphemy laws are rarely enforced, and cases are rarely brought to the legal system.  A 2005 law requires that a senior police officer investigate any blasphemy charge before a complaint is filed.

(iii) A citizen must have a national identity card to vote.  Those wishing to be listed as Muslims must swear their belief that the Prophet Muhammad is the final prophet, and denounce the Ahmadiyya movement’s founder as a false prophet and his followers as non-Muslims.  This provision prevents Ahmadis from obtaining legal documents and puts pressure on members of the community to deny their beliefs in order to enjoy citizenship rights, including the right to vote.  Many Ahmadis are thus effectively excluded from taking part in elections.

(iv) There is no official restriction on the construction of Ahmadiyya places of worship; however Ahmadis are forbidden to call them mosques.  The government also has shut down Ahmadi gatherings if neighbours report hearing the citation of Quranic verses.

(v) The previous Federal Ministry for Minorities which was established in 2008 was dissolved in June 2011.  In August, the government created the Ministry of National Harmony, a stand alone, cabinet level body responsible for the oversight of policy and legislation regarding interfaith harmony, international agreements relating to religious freedom and interfaith harmony, and commitments with respect to all religious communities.

(vi) The Constitution specifically prohibits discriminatory admission to any governmental educational institution solely based on religious affiliation, however students must declare their religious affiliation on application forms, a requirement also for private educational institutions including universities.  Students who identify themselves as Muslim must declare in writing that they believe the Prophet Muhammad is the final prophet, another measure that singles out Ahmadis.

(vii)  The government does not restrict religious publishing in general; however, the sale of Ahmadi religious literature is banned.

(viii) Missionaries (except Ahmadis) are permitted to proselytise as long as there is no preaching against Islam and the missionaries acknowledge that they are not Muslim.

(ix) There are reserve seats for religious minority members in both the National and Provincial Assemblies.

Government Practices

(x) The government generally enforced existing legal and policy restrictions on religious freedom particularly on Ahmadis.  Abuses under the blasphemy and other discriminatory laws, such as “the anti-Ahmadi laws”, continued.  The government did not take adequate measures to prevent these incidents or undertake reform measures to prevent the abuse of the laws.  The killing of those accused of blasphemy or those publicly criticising the blasphemy laws and calling for their reform continue throughout the year.

(xi) The killing of Ahmadis for their religious beliefs continued throughout the year.  Non-governmental organisations have alleged that the anti-Ahmadi sections of the penal code and other government policies fostered intolerance against this community and, together with a lack of police action, created a culture of impunity.  According to a spokesman for the Ahmadiyya community, since the promulgation of anti-Ahmadi laws in 1984, 207 Ahmadis have been killed on religious grounds.  During the year, according to Ahmadiyya leaders, five Ahmadis were murdered in targeted killings because of their faith.  Authorities did not arrest anyone for the murders by the year’s end.

(xii)  Punjab Chief Minister, the President and the Prime Minister criticised the terrorist attacks on the two separate Ahmadi congregations on 28 May 2010 and ordered an immediate enquiry.  The Punjab Government established an enquiry commission but the Ahmadi community had not been contacted by any commission representatives by the year’s end, nor had they provided any updates regarding the status of the investigation.

(xiii) Religious minorities generally faced serious difficulties in getting police assistance, especially in rural areas, and police reportedly tortured and mistreated persons in custody on religious charges and were accused of at least one extrajudicial killing in a blasphemy case during the year (a Christian who died in police custody in Karachi).

(xiv) Laws prohibiting blasphemy continue to be used against Christians, Ahmadis, and members of other religious groups, including Muslims.  Some individuals brought charges under these laws to settle personal scores or to intimidate vulnerable individuals including Muslims, members of religious minorities and sectarian opponents.  Lower courts often did not require adequate evidence in blasphemy cases, which led to some accused and convicted persons spending years in jail before higher courts eventually overturned their convictions and ordered them freed.  The regional trial courts usually denied bail in blasphemy cases claiming that because defendants could face the death penalty they were likely to flee; however, the state has never executed anyone under the blasphemy laws.  Judges and magistrates, seeking to avoid confrontation with or violence from extremists, often continued trials indefinitely.  Lower courts conducted proceedings in an atmosphere of intimidation by extremists and refused bail due to fear of reprisal from extremist elements.

(xv) Of the 49 cases registered under blasphemy laws in 2011, according to data provided by the National Commission for Justice and Peace, eight were against Christians, two were against Ahmadis and 39 were against Muslims.

(xvi) Non-Muslim prisoners generally were accorded poorer facilities than Muslim inmates.

(xvii) Ahmadiyya leaders stated that for religious reasons the government used sections of the Penal Code against their members.  They alleged that the government used anti-Ahmadi laws to target and harass Ahmadis, frequently accusing converts to the Ahmadiyya community of blasphemy, violations of anti-Ahmadi laws, or other crimes.  The vague wording of the provision that forbids Ahmadis directly or indirectly identifying themselves as Muslims enabled officials to bring charges against Ahmadis for using the standard Muslim greeting and for naming their children Muhammad.  According to Ahmadiyya leaders, during the year 36 Ahmadis were implicated in eight different cases.  By year’s end, two Ahmadis were in prison, one for allegedly defiling the Quran, and the other for alleged murder.  The Ahmadiyya community claimed that most of the arrests were groundless and based on the detainees’ religious beliefs.

a.            There had been no material change since MJ.

b.           There is no reliable evidence that a mere general application of anti-Ahmadi laws amounts to persecution.

c.            The state has little interest in prosecuting those who breach the anti-Ahmadi laws

d.           The state provides protection to Ahmadis

e.            There is no evidence that the Khatme-e-Nabuwat incites or participates in the persecution of Ahmadis in Pakistan.

f. There is no reliable evidence that those Ahmadis who live openly in Pakistan are being persecuted

g.            The way in which a person is able to conduct himself in the United Kingdom, such a person should not expect the same level of tolerance in his country of origin.

h.            Ahmadi women are not more vulnerable than men.

i. The situation for Ahmadis in Pakistan generally is not such that would bring them within the possible parameters of a flagrant or fundamental breach of Article 9 of the Human Rights Convention.

OUR CONCLUSIONS ON THE EXPERT AND OTHER EVIDENCE

i. that there is a real possibility if Ahmadis are prosecuted under the blasphemy laws or under 298B or C they face a real risk of an unfair trial in the lower courts although it is likely any serious sentences will be overturned on appeal.  We accept that the lower judiciary at least are unlikely, largely because of societal pressure, to guarantee a fair hearing for Ahmadis at first instance and

ii. such prosecutions have occurred although relatively small in number (based on the conservative estimate of an overall Ahmadi population of 600, 000 referred to in the UNHCR Eligibility Guidelines quoted above)  and

iii nevertheless, their effect is clearly to send a deterrent signal to the Ahmadi community not to practise their religion openly.

JUDGMENT OF SUPREME COURT OF PAKISTAN IN CRIMINAL APPEALS NUMBERS 31-K TO 35-K OF 1988, CIVIL APPEALS NO. 149 AND 150 OF 1989 AND CIVIL APPEAL NO. 412 OF 1992 (Zaheeruddin)

“The question of law of public importance common to all these appeals is whether Ordinance No XX of 1984, the Anti-Islamic Activities of the Qadiani Group, Lahore Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984 is ultra vires the Constitution.  If not, whether the convictions recorded and the sentences imposed in five criminal appeals are in accordance with Section 5 introduced by it.”

“ a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Mohammed (peace be upon him), the last of the prophets and does not believe in, or recognise as a prophet or religious reformer, any person who claimed or claims to be, a prophet in any sense of the word or of any description whatsoever, after Mohammed (peace be upon him).”

“ a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi community, a person of the Quadiani Group or the Lahori Group (who calls themselves ‘Ahmadis’ or by any other name), or Bahai, and a person belonging to any of the scheduled castes.”

“20. Freedom to profess religion and to manage religious institutions – subject to law, public order and morality –

(a) every citizen shall have the right to profess, practise and propagate his religion; and

(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.”

“…The Ahmadis like other minorities are free to profess their religion in this country and no-one can take away that right of theirs, either by legislation or by executive orders.  They must, however, honour the Constitution and the law and should neither desecrate or defile the pious personage of any other religions including Islam, nor should they use their exclusive epithets, descriptions and titles and also avoid using the exclusive names like mosque and practice like ‘azan’ so the feelings of the Muslim community are not injured and the people are not misled or deceived as regards the faith.”

PREVIOUS COUNTRY GUIDANCE, RELEVANT CASE LAW AND OUR GENERAL CONCLUSIONS

“35. (a) The first stage, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. But I would regard this part of the test as having been satisfied if the applicant's case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case.

(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Office's Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry.

(c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. As I said earlier (see para 15), the Convention was not directed to reforming the level of rights in the country of origin. So it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do if he were not returned. It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin.

(d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.

“There is no support in any of the human rights jurisprudence for a distinction between the conscientious non-believer and the indifferent non-believer, any more than there is support for a distinction between the zealous believer and the marginally committed believer.  All are equally entitled to human rights protection and to protection against persecution under the Convention.  None of them forfeits these rights because he will feel compelled to lie in order to avoid persecution.”

“1. Acts of persecution within the meaning of Article 1A of the Geneva Convention must

(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).

2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory measure;

(c) prosecution or punishment which is disproportionate or discriminatory;

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article Article 12(2);

(f) acts of gender-specific or child-specific nature.

3. In accordance with Article 2(c) there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.”

“1(b) The concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief.”

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief in freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice, and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

“While the Court would not rule out the possibility that the responsibility of the returning State might in exceptional circumstances be engaged under Article 9 of the Convention where the person concerned ran a real risk of flagrant violation of that Article in the receiving State, the Court share the view of the House of Lords in the Ullah that it would be difficult to visualise a case in which a sufficiently flagrant violation of Article 9 would not also involve treatment in violation of Article 3 of the Convention.”

“This case raises the question of what approach should be applied to Article 9 rights allegedly at risk on expulsion. The applicants argue that a flagrant denial test should not be applied in the context of Article 9, as was done by the House of Lords in Ullah, as this would fail to respect the primacy of religious rights; and it is contended that effectively requiring them to modify their conduct, concealing their adherence to Christianity and forgoing the possibility of talking about their faith and bearing witness to others, in order to avoid hostile attention would be to deny the right per se.

The Court’s case-law indeed underlines that freedom of thought, religion and conscience is one of the foundations of a democratic society and that manifesting one’s religion, including seeking to convince one’s neighbour, is an essential part of that freedom (Kokkinakis, § 31). This is however first and foremost the standard applied within the Contracting States, which are committed to democratic ideals, the rule of law and human rights. The Contracting States nonetheless have obligations towards those from other jurisdictions, imposed variously under the 1951 United Nations Convention on the Status of Refugees and under the above-mentioned Articles 2 and 3 of the Convention. As a result, protection is offered to those who have a substantiated claim that they will either suffer persecution for, inter alia, religious reasons or will be at real risk of death or serious ill-treatment, and possibly flagrant denial of a fair trial or arbitrary detention, because of their religious affiliation (as for any other reason). Where however an individual claims that on return to his own country he would be impeded in his religious worship in a manner which falls short of those proscribed levels, the Court considers that very limited assistance, if any, can be derived from Article 9 by itself. Otherwise it would be imposing an obligation on Contracting States effectively to act as indirect guarantors of freedom of worship for the rest of world. If, for example, a country outside the umbrella of the Convention were to ban a religion but not impose any measure of persecution, prosecution, deprivation of liberty or ill-treatment, the Court doubts that the Convention could be interpreted as requiring a Contracting State to provide the adherents of that banned sect with the possibility of pursuing that religion freely and openly on their own territories. While the Court would not rule out the possibility that the responsibility of the returning State might in exceptional circumstances be engaged under Article 9 of the Convention where the person concerned ran a real risk of flagrant violation of that Article in the receiving State, the Court shares the view of the House of Lords in the Ullah case that it would be difficult to visualise a case in which a sufficiently flagrant violation of Article 9 would not also involve treatment in violation of Article 3 of the Convention.”

“In the present application, the applicants have failed to make out a case of persecution on religious grounds or to substantiate that they were at risk of a violation of Articles 2 or 3. Neither applicant had herself been subject to any physical attack or prevented from adhering to her faith. Both have claimed to have received unpleasant telephone calls and to have felt at risk of attack. The essence of their case rests on the general situation in Pakistan where there have been, over the past few years, attacks on churches and Christians. The domestic authorities however gave weight to the fact that the Christian community in Pakistan was under no official bar and indeed had their own parliamentary representatives and that the Pakistani law enforcement and judicial bodies respectively were taking steps to protect churches and schools and to arrest, prosecute and punish those who carried out attacks.

The applicants have emphasised that the police themselves fear the Islamic extremists and that the authorities have failed in the past to protect Christian churches despite the presence of guards. Nonetheless it is not apparent that the authorities are incapable of taking, or are unwilling to take, appropriate action in respect of violence or threats of violence directed against Christian targets.

In those circumstances, the Court finds that, even assuming that Article 9 of the Convention is in principle capable of being engaged in the circumstances of the expulsion of an individual by a Contracting State, the applicants have not shown that they are personally at such risk or are members of such a vulnerable or threatened group or in such a precarious position as Christians as might disclose any appearance of a flagrant violation of Article 9 of the Convention.”

“1. Is Article 9(1)(a) of [the] Directive…to be interpreted as meaning that not every interference with religious freedom which infringes Article 9 of the ECHR constitutes an act of persecution within the meaning of [the former provision], and that a severe violation of religious freedom as a basic human right arises only if the core area of that religious freedom is adversely affected?

2. If question 1 is to be answered in the affirmative:

(a) Is the core area of religious freedom limited to the profession and practice of faith in the areas of the home and neighbourhood, or can there be an act of persecution, within the meaning of Article 9(1)(a) of [the] Directive…, also in cases where, in the country of origin the observance of faith in public gives rise to a risk to life, physical integrity or freedom and the applicant accordingly abstains from such practice?

(b) If the core area of religious freedom can also comprise the public observance of certain religious practices:

- does it suffice in that case, in order for there to be a severe violation of religious freedom, that the applicant feels that such observance of his faith is indispensible in order for him to preserve his religious identity,

- or is it further necessary that the religious community to which the applicant belongs should regard that religious observance as constituting a central part of its doctrine,

- or can further restrictions arise as a result of other circumstances, such as the general conditions in the country of origin?

3. If question 1 is to be answered in the affirmative:

Is there a well founded fear of persecution, within the meaning of Article 2(c) of [the] Directive…, if it is established that the applicant will carry out certain religious practices – other than those falling within the core area – after returning to the country of origin, even though they will give rise to a risk to his life, physical integrity or freedom, or can the applicant reasonably be expected to abstain from such practices.”

“[57] Freedom of religion is one of the foundations of a democratic society and is a basic human right.  Interference with the right to religious freedom may be so serious as to be treated in the same way as the cases referred to in Article 15(2) of the ECHR, to which Article 9(1) of the Directive refers by way of guidance, for the purpose of determining which acts must in particular be regarded as constituting persecution.

[58] However, that cannot be taken to mean that any interference with the right to religious freedom guaranteed by Article 10(1) of the Charter constitutes an act of persecution requiring the competent authorities to grant refugee status within the meaning of Article 2(d) of the Directive to any person subject to the interference in question.

[59] On the contrary, it is apparent from the wording of Article 9(1) of the Directive that there must be a ‘severe violation’ of religious freedom having a significant effect on the person concerned in order for it to be possible for the acts in question to be regarded as acts of persecution.

[60] Acts amounting to limitations on the exercise of the basic right to freedom of religion within the meaning of Article 10(1) of the Charter which are provided for by law, without any violation of that right arising, are thus automatically excluded as they are covered by Article 52(1) of the Charter.

[61] Nor can acts which undoubtedly infringe the right conferred by Article 10(1) of the Charter, but its gravity is not equivalent to that of an infringement of the basic human rights from which no derogation can be made by Article 15(2) of the ECHR, be regarded as constituting persecution within the meaning of Article 9(1) of the Directive and Article 1A of the Geneva Convention.

[62] For the purpose of determining, specifically, which acts may be regarded as constituting persecution within the meaning of Article 9(1)(a) of the Directive, it is unnecessary to distinguish acts that interfere with the ‘core areas’ (‘forum internum’) of the basic right to freedom of religion, which do not include religious activities in public (‘forum externum’), from acts which do not affect those purported ‘core areas’.

[63] Such a distinction is incompatible with the broad definition of ‘religion’ given by Article 10(1)(b) of the Directive, which encompasses all its constituent components, be they public or private, collective or individual.  Acts which may constitute a ‘severe violation’ within the meaning of Article 9(1)(a) of the Directive include serious acts which interfere with the applicant’s freedom not only to practice his faith in private circles but also to live that faith publicly.

[64] That interpretation is likely to ensure that Article 9(1) of the Directive is applied in such a manner as to enable the competent authorities to assess all kinds of acts which interfere with the basic right of freedom of religion in order to determine whether, by their nature or repetition, they are sufficiently severe as to be regarded as amounting to persecution.

[65] It follows that acts which, on account of their intrinsic severity as well as the severity of their consequences for the person concerned, may be regarded as constituting persecution must be identified, not on the basis of the particular aspect of religious freedom that is being interfered with but on the basis of the nature of the repression inflicted on the individual and its consequences, as observed by the Advocate General at point 52 of his Opinion.

[66] It is therefore the severity of the measures and sanctions adopted or liable to be adopted against the person concerned which will determine whether a violation of the right guaranteed by Article 10(1) of the Charter constitutes persecution within the meaning of Article 9(1) of the Directive.

[67] Accordingly, a violation of the right to freedom of religion may constitute persecution within the meaning of Article 9(1)(a) of the Directive where an applicant for asylum, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of the Directive.”

“[69] Given that the concept of ‘religion’ as defined in Article 10(1)(b) of the Directive also includes participation in formal worship in public, either alone or in community with others, the prohibition of such participation may constitute a sufficiently serious act within the meaning of Article 9(1)(a) of the Directive and, therefore, persecution where, in the country of origin concerned, it gives rise to a genuine risk that the applicant will, inter alia, be prosecuted or subject to inhuman or degrading punishment by one of the actors referred to in Article 6 of the Directive.

[70] In assessing such a risk, the competent authorities must take account of a number of factors, both objective and subjective.  The subjective circumstance that the observance of a certain religious practice in public, which is subject to the restrictions at issue, is of particular importance to the person concerned in order to preserve his religious identity is a relevant factor to be taken into account in determining the level of risk to which the applicant will be exposed in his country of origin on account of his religion, even if the observance of such a religious practice does not constitute a core element of faith for the religious community concerned.

[71] Indeed, it is apparent from the wording of Article 10(1)(b) of the Directive that the scope of protection afforded on the basis of persecution on religious grounds extends both to forms of personal or communal conduct which the person concerned considers to be necessary to him – namely those ‘based on … any religious belief’ – and to those prescribed by religious doctrine – namely those ‘mandated by any religious belief’.”

“- not all interference with the right to freedom of religion which infringes Article 10(1) of the Charter is capable of constituting an ‘act of persecution’ within the meaning of that provision of the Directive;

- there may be an act of persecution as a result of interference with the external manifestation of that freedom, and

- for the purpose of determining whether interference with the right to freedom of religion which infringes Article 10(1) of the Charter may constitute an ‘act of persecution’, the competent authorities must ascertain, in the light of the personal circumstances of the person concerned, whether that person, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of the Directive.”

“[78] None of those rules states that, in assessing the extent of the risk of actual acts of persecution in a particular situation, it is necessary to take account of the possibility open to the applicant of avoiding the risk of persecution by abstaining from the religious practice in question and, consequently, renouncing the protection which the Directive is intended to afford the applicant by conferring refugee status.

[79] It follows that, where it is established that, upon his return to his country of origin, the person concerned will follow a religious practice which will expose him to a real risk of persecution, he should be granted refugee status, in accordance with Article 13 of the Directive.  The fact that he could avoid that risk by abstaining from certain religious practices is, in principle, irrelevant.

[80] In the light of the above considerations, the answer to the third question referred in both cases is that Article 2(c) of the Directive must be interpreted as meaning that the applicant’s fear of being persecuted is well‑founded if, in the light of the applicant’s personal circumstances, the competent authorities consider that it may reasonably be thought that, upon his return to his country of origin, he will engage in religious practices which will expose him to a real risk of persecution.  In assessing an application for refugee status on an individual basis, those authorities cannot reasonably expect the applicant to abstain from those religious practices.”

a. For interference with the right to the freedom of religion guaranteed by Art 10(1) of the Charter and Art 9(1) of the Human Rights Convention to constitute an act of persecution within the meaning of Art 2(d) of the Directive, there must be a significant effect on the person concerned.

b. Acts which interfere with the right to the freedom of religion, if not of the gravity equivalent to the protected human rights from which there can be no derogation under Art 15(2) of the Human Rights Convention, will not constitute persecution within the meaning of Art 9(1) of the Directive and the Refugee Convention.

c. Limitations on the exercise of the Freedom of Religion must be provided for by law and respect the essence of the rights and freedoms recognised by the Charter.  They must be proportionate and made only if necessary and genuinely meet the objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.  (Art 52 of the Charter)

d. There is no basis for distinguishing interference with core aspects from interference with marginal areas of the right to freedom of religion.  This is because of the broad definition of religion in Art 10(1)(b) of the Directive.

e. Nevertheless it is only serious violation of the right to freedom of religion that will give rise to persecution or serious harm or ill-treatment and that will be determined by the nature of the repression on the individual concerned and its consequences with reference to the severity of the measures and sanctions likely to be adopted.

f. If it is reasonably thought that an individual will engage in religious practices (which may include public manifestations of that religion) or would wish to do so because of the particular importance to the person concerned in order to preserve his religious identity, the fact that an individual could avoid a risk by abstaining from certain religious practices which will expose him to a real risk of persecution is irrelevant.

“Where however an individual claims that on return to his own country he would be impeded in his religious worship in a manner that falls short of these prescribed levels, the court considers that very limited assistance, if any, can be derived from Article 9 by itself. Otherwise it would be imposing an obligation on Contracting states effectively to act as indirect guarantors of freedom on worship for the rest of the world.”

COUNTRY GUIDANCE

(ii) It is, and has long been, possible in general for Ahmadis to practise their faith on a restricted basis either in private or in community with other Ahmadis, without infringing domestic Pakistan law.

(ii) It is no answer to expect an Ahmadi who fits the description just given to avoid engaging in behaviour described in paragraph 2(i) above (“paragraph 2(i) behaviour”) to avoid a risk of prosecution.

DETERMINATION OF THE APPEALS - GENERAL

Determination of the appeals – THE FIVE APPELLANTS

MN

“(i) The appellant MN is an Ahmadi.

(ii) He was a successful businessman in Pakistan with sufficient wealth to enable him to donate significant sums of money to the Ahmadi community.

(iii) He was an active member of the Ahmadi community within the community in Pakistan.

(iv) The appellant “discreetly proselytised his faith” to non-Ahmadis in Pakistan but only to persons he could trust because he was not allowed to go and preach in Pakistan.

(v) The appellant was present at and injured in the attack by Islamist extremists on the Ahmadi mosque in Modeltown, Lahore on 28 May 2010.

(vi) He was taken to hospital and in hospital he was visited [there] by the Interior Minister, Mr Rehman Malik, on 29 May 2010.

(vii) The appellant’s speaking to the Minister – as a victim of the attack – was shown on Pakistani television.

(viii)  On 31 May 2010 the hospital in which the appellant lay was also attacked by Islamist extremists.”

NH

ZN

SB

HQ

SUMMARY OF CONCLUSIONS

Signed Date November 2012

Upper Tribunal Judge Dawson

SCHEDULE I

THE EXPERT AND OTHER EVIDENCE

DR W

(i) Tabligh and da’wa (preaching and propagation of the faith) are for Ahmadis the lifeblood and raison d’être of the movement.  Dr W refers to this being the ‘true jihad’.  He explains that tabligh can take various forms as well as direct preaching and that “individual efforts, individual actions and individual personal examples are classed as ‘the most important ingredients of tabligh’”.

(ii) As an important part of tabligh and “da’wa“, members of the “jama’at” are asked to distribute literature in abundance but with discretion and “hiqmat” (wisdom).  A considerable amount of literature is produced by Ahmadis which is considered the biggest tool for conversion.  The Ahmadis global satellite television station, Muslim TV Ahmadiyya International transmits programmes 24 hours a day in various languages.

(iii) As to the history of the movement and the way in which hostility has become politicised, spilling over into violence, a clash at Rabwah (where 95% of the population is Ahmadi) between the student wing of a religious party, Jamat-i-Islami and Ahmadi youth led to a countrywide condemnation of Ahmadis.  Khatme-e-Nabuwat (the spelling varies) is described as a conglomerate of different Ulema (religious scholars).  Its call to “declare” Ahmadis a non-Muslim minority had a tangible response from the masses, particularly in the districts of Punjab.

(iv) The government under Z. A. Bhutto was not willing to accede to such a demand and so a judicial commission was formed to look into the Rabwah incident.  Although findings of the commission were not consistent with the accusations of the Ulema, pressure continued and eventually on 7 September 1974 the National Assembly passed the resolution which declared that all Ahmadis in the country were to be regarded as a non-Muslim minority.

(v) Article 260 of the Pakistan constitution states that ‘A person who does not believe in the absolute and unqualified finality of the prophethood of Muhammad is not a Muslim for the purposes of the constitution or law’.  Dr W observes:

“However, Ahmadis were subject to the worst possible persecution when Zia Ul Haq took over the reins of power after removing Bhutto. On 26 April 1984 Zia, influenced by reactionary elements, promulgated Ordinance XX which added sections 298(B) and 298(C) to the Pakistan penal code Under this legislation it is an offence, punishable by a prison sentence of up to three years, the imposition of a fine or both for an Ahmadi 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.” (as quoted from Islam and the Ahmadiyya Jamaat: History, Belief, Practice by S Valentine published in London in 2008.)

He continues:

“In 1986 Ahmadis were subject to even more repressive legislation when 295C was inserted into the Penal Code.  This stated that the penalties for blaspheming the prophet Muhammad were death or life imprisonment with fines.  This was later amended in 1991 to make the death penalty, the only punishment for blasphemy.”

Although the state had not executed anyone under these provisions, religious extremists have killed some people accused, citing them (no source is given by Dr W for these assertions).

(vi) A person who does not believe in the absolute and unqualified finality of the prophethood is not permitted to cast a vote as a Muslim and the pro forma for obtaining a Pakistani passport asks applicants to sign a declaration that they consider the founder of the faith to be an imposter and that they also consider his followers to be non-Muslims.  Dr W refers to official statistics revealed by Ahmadis that from April 1984 to April 2004 the number of Ahmadis charged for displaying the Kalima was 756, 37 for calling “azan” and 404 for posing as Muslims.  Finally 131 were charged for using Islamic epitaphs, 590 for preaching, 213 charged under blasphemy laws and 845 for various other cases against Ahmadis under the anti-Ahmadi Ordinance 298(b)/(c).  His source is a report of the Parliamentary Human Rights Group entitled A Place for Martyrs by J Ensor as Editor.  These statistics appear to be from an annex to that report, being a summary of cases instituted against Ahmadis in Pakistan from April 1984 to December 2005.

(vii) There was also reference in the report to the previous Minister for Religious Affairs declaring on 7 September 2008 in his role as the anchor of a popular religious programme that members of the Ahmadi community were “wajibul qatl” (obligatory for Muslims to kill).  Within 48 hours of the pronouncement on television, two prominent Ahmadis were gunned down, the source cited by Dr W being reports of the Jinnah Institute.

(viii)  It is common for Ahmadi students to be ostracised by teachers and fellow students.  Since more and more Ahmadi students enrol each year, members of organisations such as the Jamiat Talaba-i-Islam (the student offshoot of the Jamaat-i-Islami) gather lists of all Ahmadi students enrolled to assist with targeting them for discrimination.  There is also reference to the Ahmadis being the subject of hate literature in the report which although short on detail, it does identify a monthly magazine, Laulak.

(ix) The make-up of Khatme-e-Nabuwat is described as being primarily composed of Sunni (“deobandi ulema”) although its membership is said to include some prominent Shi'as as well.  It is said to have ties to the Jamaat-i-Islami too.  Dr W makes the statement that:

“It is quite active hounding Ahmadis in the UK, Suhail Bava is currently its leader.  There are some instances when Khatm-i-Nabuwat operatives exhort on the Muslims to boycott Ahmadi shopkeepers.  From the oral source it has been learned that some Ahmadis have moved to other vicinities where they have their kins.”

IMAM RASHED

(1) What are the fundamental tenets of the Ahmadi faith?

(2) Are Ahmadis Muslims?

(3) What are the points of difference from mainstream Sunni Muslims in Pakistan?

(4) What are the points of difference between the Ahmadiyya and Lahori groups?

(5) How fundamental is the duty to propagate or spread the Ahmadi faith to non-Ahmadis?

(6) With reference to the text of the anti-Ahmadi blasphemy laws in Ordinance XX, is it important for an Ahmadi to do any of the things prohibited by Articles 298-(b)(1)(2) or 298(c) (the anti-Ahmadi Ordinances)?

(7) What are your views about the penalties imposed on Ahmadis for posing as a Muslim in Article 295(c)?

(8) What is the significance of being prevented from doing those things?  Do you consider that Ahmadis are obliged to carry out those activities, notwithstanding that they are illegal?

(9) Do you consider that Ahmadis should adjust their conduct and the practice of their faith in order to avoid acts of persecution?

(10) How would you describe the duty to spread the Ahmadi faith?  Words that have been used previously include “preaching”, “proselytising”, and “propagating”.

(11) How fundamental is this duty to the modern practice of the Ahmadi faith?

(12) Is the sole purpose of “preaching” to ‘convert’ non-Ahmadis or is the duty more complex and if so how?

(13) Would you say that the duty to spread the Ahmadi faith is greater or lesser than or the same as that within the Sunni system of beliefs?

(14) In the light of the restrictions in Pakistan on overtly proclaiming and spreading your faith what would be tolerable methods of doing so?

“The Ahmadi person will believe that Muhammad is khatamun nabiyyen, the seal of the all the prophets and will believe that Hadrat Mirza Ghulam Ahmad was the same Imam Mahdi and promised messiah whose advent was prophesied by the Holy Prophet of Islam, peace and blessings of Allah be upon him.”

“The Ahmadi person will promise that he will try his best to abide by the ten conditions of bai’at (initiation) as prescribed by the promised messiah (set out below); that he will give precedence to his/her faith over all worldly objects; that he will remain loyal to the institution of Khalifat in Ahmadiyyat and will obey the Khalifatul Mashi and everything good that he may require of that Ahmadi.  Integral to this promise is that the Ahmadi will spread his faith to others who are not Ahmadis and engage in doing good works.”

i. The Ahmadis believe that:

“There is no compulsion in faith.  Jihad now is only meant to be a striving towards righteousness.  A jihad can only be declared by a state under special conditions and cannot be called by individuals or groups.”

ii. Further:

“There is no worldly punishment for apostasy.”

iii. In contrast, non-Ahmadis believe that:

“Jihad means a holy war and is an essential article of faith.  Having invited a non-believer to Islam, if he/she does not believe he/she should be killed.”

iv. and:

“Anyone who converts from Islam to another faith must be decapitated.”

“All Khalifa (heads of the Ahmadiyya community) have been reminding about this obligation to preach.  For this task the entire Jama’at, missionaries and the auxiliaries work side by side.  The resources of the community (publications, literature, the 24 hour satellite TV channel, a system of trained missionaries with the fresh pool known as waqfeen nau children who are committed to devote their lives for the sake of their God) are fully committed to the attainment of that objective.

Nevertheless it must be firmly understood that propagation is one thing and conversion a completely different issue.  The aim of each Ahmadi is to convey the message and it is up to God to guide the person to whom the message has been conveyed towards the light…  Thus it is the responsibility of each Ahmadi in each community to preach.  Each Ahmadi’s task is to fulfil his/her responsibility.”

Imam Rashed observes that Ahmadis believe in open propagation and engaging in dialogue with all communities of society.  Notwithstanding the restrictions against international rights in Pakistan, Bangladesh, Indonesia and the authorities who are in control in the Middle East and other Islamic states, Ahmadis are law-abiding citizens wherever they live and do not resort to civil disobedience or taking part in public protests and causing civil unrest.  He goes on to observe:

“It should also be remembered that whereas preaching is a requirement of each Ahmadi, an Ahmadi who does not or is unable to preach because of circumstances beyond his reasonable control will not be excommunicated.  Different Ahmadis practise their faith at different spiritual levels but just because they have not manifestly preached does not mean they were less devout and sincere in their beliefs.”

And finally on this aspect:

“Quite obviously an Ahmadi must use wisdom and due diligence when engaging in preaching as in some countries, for instance in the Middle East, free assembly and debate is prevented.  In such places an Ahmadi is required to display a high moral standard so that others are attracted to that Ahmadi and his way of life and thus wish to enquire about his beliefs.  This would be the minimum standard of discreet indirect preaching by leaving an impression on someone about one’s chosen way of life expected of an Ahmadi.

It is only due to the fear of persecution that Ahmadis are obliged to conceal a fundamental obligation of their faith and modify their preaching activities by being discreet to avoid such harassment.  Ahmadis therefore believe that such forced concealment makes it persecutory.”

“The duty to propagate beliefs is essential to the missions of prophets.  The prophets have a constant urge to spread the message that they receive from God and rescue as many souls as possible and bring such souls closer to the ways of God rather than following ways towards darkness and evil.  This work cannot be achieved by one person alone.  Following the demise of the prophet, his works are carried on by his successors.  Ultimately, it is therefore the adherents of that prophet who are the instruments to broadcast that message to the people.

The Arabic word is ‘tabligh’ and is not limited to the narrower translation of how preaching is understood in the UK.  It incorporates preaching, proselytising and propagation of the faith.”

DR ANSARI 

i. How does the position of women in Pakistan generally affect the treatment of Ahmadi women as a religious minority?

ii. How are Ahmadi women generally perceived by mainstream society?

iii. Are Ahmadi women more prone to discrimination, gender-based persecution because they are members of a religious minority and what is the position within society of physically single Ahmadi women (i.e. no male member in the household) in terms of their civil status, access to education and employment and safety, and under the circumstances what risk might their children face?

“Life for Ahmadi women living without the protection of male relatives in the context of present day Pakistan would undoubtedly be fraught with difficulties and dangers, and this scenario becomes even more problematic were they to be bringing up children of their own.  The challenge of operating successfully without the involvement of male relatives is intensely difficult for Pakistani women.  Ahmadi women without male support would not only be personally endangering themselves but also risking their children’s safety and wellbeing.”

DR HAMID

“…these auxiliary organisations enable the Ahmadi Muslim community to ensure that no member is disenfranchised and can correlate to a group of likeminded gender, age and interests”.

DR AYAZ

“Country guidance on the position of Ahmadis in Pakistan.  Questions answered by the Ahmadiyya Muslim Association UK; evidence of persecution of the followers of the Ahmadi faith in Pakistan.”

·  Evidence of persecution of the followers of the Ahmadi faith in Pakistan.

·  Ahmadi community structure and processes.

·  Alleged denial of civil rights.

·  Anti-Ahmadi provisions of Pakistan’s legislative code.

·  Propagation of faith.

·  Key events relevant to Ahmadis in Pakistan since 2007.

·  Anti-Ahmadi practices in the UK.

·  Security and protection.

·  Sufficiency of protection.

·  Internal relocation.

 Dr Lau

a.            In relation to the geographical distribution and number of Ahmadis in Pakistan, he explains he is not an expert and refers to the most recent census in Pakistan published in 1998 stating that they represented 0.22% of the population, then 145 million people.  He has heard that there are many more Ahmadis in Pakistan than the figures suggest.  In response to an invitation to comment on the extent to which the Ahmadi community organises security for itself and how it does so, he explains that he has no detailed knowledge of the security arrangements so organised.  During the mission of the PHRG in 2010 he noticed the inconspicuous presentation of several buildings used by the community as community centres and the like.

b.            Dr Lau provides a brief summary referring to the constitutional amendment in 1974 which he described as largely symbolic as it did not entail any penal sanctions.  This changed in the 1980s when amendments to the Pakistan Penal Code 1860 made it a criminal offence for Ahmadis to pose as Muslims.  He refers specifically to new sections 298B and 298C being inserted in the Code in 1984.  The former prohibits Ahmadis from using certain names and titles commonly used in Islam.  The offence carries a maximum of three years’ imprisonment as well as a fine.  The latter, section 298C, is wider in scope making it a criminal offence for an Ahmadi to pose as a Muslim, to refer to his faith as Islam or to preach or propagate his faith or invite others to accept it or “by words, either spoken or written, or by the visible representation or in any manner whatsoever outrages the religious feelings of Muslims”.  An offence again carries a maximum of three years’ imprisonment as well as a fine.  He also refers to the consequences of an accusation of blasphemy under section 295C of the Code which makes it an offence to defile the sacred name of the holy prophet for which the punishment is death and a fine.

c.            Dr Lau considers it safe to state that the vast majority if not every report compiled by well-respected human rights organisations states that Ahmadis suffer persecution under Pakistan’s legal system both in respect of laws directed against them as well as the law on blasphemy.  He refers also to the COIR paras 19.04 to 19.44 as well as to the Ahmadi community producing an annual report providing a compilation of “persecutions” of Ahmadis in Pakistan.  He explains that the PHRG found testimonies of persons, some of whom the group had met, to be consistent with those contained in the report.  He points out that the COIR for 2011 does not refer to the most recent of these reports “Persecution of Ahmadis in Pakistan during the year 2011”.  Dr Lau concludes that there is no doubt that “…a significant number of Ahmadis face criminal prosecutions under Pakistan’s criminal law…”

d.            Dr Lau quotes in extenso from the PHRG and in addition examples listed in the “Persecution of Ahmadis in Pakistan 2011” report of instances of discrimination. That report is said to list a number of instances of discrimination in educational establishments, for instance the expulsion of Ahmadi pupils and students on the ground of their religion and other educational establishments run by Ahmadis being targeted by extremists and forced to close down.  The only specific example given is the forced closure of the College of Commerce and Sciences in Southern Punjab after a sustained campaign by extremists as well as blasphemy charges filed against Ahmadi students.

e.            The next enquiry relates to the use of anti-Ahmadi literature, posters, advertisements and rallies and the effect on the Ahmadi and non-Ahmadi populations.  Dr Lau describes the production and distribution of such pamphlets as a popular and frequently used method of extremist groups to incite like-minded people to take actions against the community.  He again refers to the 2011 Report of Persecution of Ahmadis in Pakistan and also to regular reports of rallies staged against Ahmadis, illustrated by an ongoing agitation against the use of a building in Rawalpindi as a place of worship which started in January 2012.  He concludes with reference to a pessimistic article by the Asian Human Rights Commission of 12 March 2012 entitled ‘Pakistan Government makes no effort to halt the persecution and killings of Ahmadis’.

f. Dr Lau next comments on reported violence and attacks against Ahmadis, particularly in the last few years between 2008 and 2012, not confined to the mosque attacks.  Dr Lau quotes from the Asian Human Rights Commission that since January 2011 ten Ahmadis have been murdered and describes also that almost 100 had been killed in two attacks on the mosques in May 2010.  It appears he is referring to the same Human Rights Commission as a source for his knowledge on this.

g.            As to the extent to which violence and attacks are not reported in the media, international country reports, or the Ahmadi community itself, Dr Lau explains from his own experience, from travelling and having worked in Pakistan for many years, that not every incident involving the Ahmadis is reported by the press or the Ahmadi community. He refers to the PHRG having been told that in some cases the police for instance refused to register a criminal complaint made by an Ahmadi and that information regarding the human rights’ position of the Ahmadis differs in detail.  He states that differences of data were pointed out by the Human Rights Commission of Pakistan in its annual 2010 report.

MS JAHANGIR

“I would describe the position of Ahmadi men and women as being under extreme risk.  Violations of human rights against them are a flagrant denial of their religious rights too.  However, in my view the situation of Ahmadis is worse than other religious minorities.  Their very existence is under consistent threat.  Violations of human rights against Ahmadis are systematic and of a serious nature.”

(i) FIRs are kept in the police stations.  Access to the central FIR registry system was not normally available but lawyers are able to get hold of them in restricted circumstances.  After a conviction occurs, an appeal might take quite a long time to come on for hearing.  On appeal, a request would be made for suspension of sentence, which comes up in two, three, or four years.  In the case of blasphemy offences, there has rarely been any case of an Ahmadi where a suspension of sentence has been lifted.  The actual appeal can take any amount of years.  Ms Jahangir has a client who has been accused of blasphemy and has been in a cell for the last 40 years.  Unless the sentence has been suspended, the convicted person remains in custody.

(ii) As to the position of Ahmadi women, Ms Jahangir referred to the steps taken by the community to protect them.  In custody cases where an Ahmadi woman is fighting a non-Ahmadi husband for custody, she is less likely to succeed than a non-Ahmadi woman would.

(iii) Ms Jahangir has seen several houses of Ahmadis which have been marked.

(i) Are people automatically detained after an FIR is filed under sections 298B or C of the PPC or whether the police have a discretion?

Ms Jahangir’s response is that the police would arrest unless they believe the FIR is completely false.  She was aware of three cases (relating it appears to blasphemy) which have been reported whereby the courts have instructed the police to go and arrest the accused.  There is however discretion but it is limited both in law and in practice because of pressure.

(ii) Can you clarify the difference between bailable and non-bailable offences?  Is there a right of appeal or review if the first instance court refuses bail?

Bailable offences are those where the police can grant bail without the need of going to court.  If one goes to the court, refusal would be an exception.  However, non-bailable offences are at the discretion of the court.  A refusal gives a right of appeal to the High Court and from there to the Supreme Court.  The police have no power to keep someone in detention beyond 24 hours without approval by a magistrate.

(iii) At paragraph [9] you have referred to some statistics that were given by the petitioner’s Counsel to the Supreme Court in Zaheeruddin’s case.  Do you know anything about the source of those statistics?

The statistics have been taken from the document itself.

(iv) Do you have any statistics as to how many Ahmadis have been convicted/sentenced under sections 298B, C and 295C of the PPC?

Personally, Ms Jahangir did not have such statistics but she had quoted the Human Rights Convention Reports although she did not consider these very comprehensive.  She was sure that the statistics of persons actually convicted and sentenced existed within the community itself.

(v) Do you know how many Ahmadi lawyers are practising in Pakistan?

Ms Jahangir said that she did not count lawyers by their religion.

(vi) You state at paragraph [38] that every province has a central register of FIRs.  Do you have any statistics as to how many FIRs have been lodged against Ahmadis since the promulgation of Ordinance XX?

Ms Jahangir stated that between 1984 and 1988 people did not have access to FIRs as the country was under a military regime.  [Today] the Human Rights Commission researchers are very careful when they are researching blasphemy, particularly on Ahmadi issues because they themselves would be putting their lives at risk.

(vii) If an FIR is registered against a low profile Ahmadi in, let’s say, Islamabad and that person moves quickly to, let’s say, Karachi, how easy would it be to track that person by (a) the police and (b) KN?

Ms Jahangir replied that both will be able to track that person quite easily unless protected by intelligence agencies.  However, the latter do not normally protect religious minorities.  The KN has a good network and partnerships with state agents, their efficiency demonstrated by the marking of houses of Ahmadis.

(viii)  You state at paragraph [42], that ‘The names of absconders [are] fed into the immigration system.  What is the source (i.e., any legislation or policy document) of this assertion?  What do you mean by the ‘immigration system’?

The exit control list (ECL) is maintained by the Interior Ministry and all provinces provide the names of people who the courts have ordered to be put on ECL for example in child cases.  In addition, this list contains absconders who are declared as such by the court and those provided by agencies such as the FIA.  Ms Jahangir herself was put on this list during the military government and many of (her colleagues) were not allowed to leave the country.  If an FIR is registered against someone, his name does not automatically go to the ECL.  An absconder is someone against whom a case has been registered and the police wish to arrest but the party is hiding.  The court would declare someone to be an absconder at the request of the police.  ECL checks take place for persons both leaving and returning to Pakistan and Ms Jahangir referred to cases where people had endeavoured to enter as dual nationals.

(ix) You state at paragraph 43 that ‘The government is intimidated by [KN]’.  Can you explain how the government is being intimidated?

There is an absolute refusal (by the government) to investigate the KN or to arrest anybody from the KN or even go and talk to them.

(x) You state at [44], that KN’s network ‘extends to a number of professional groups like lawyers’.  Is there any evidence that KN which includes professionals like lawyers, is involved either in killings or inciting killings of Ahmadis?

Her reply was that there is a KN lawyer group which operates quite openly and makes statements in the press.  This group recently asked for a soft drink called Shezan to be banned from the Bar Association because the company belonged to an Ahmadi.  This group makes statements against people, something Ms Jahangir encountered when she was contesting election to the Supreme Court Bar Association.  Statements against her included the assertion that she supported the Ahmadis and should not be elected. She clarified that this group did not indulge in killings or any such violence.

(xi) At [63] you have referred to prominent Ahmadis.  What is the difference between prominent Ahmadis and Ahmadis that are not prominent?

Prominent Ahmadis are those who are in public life or in a position of more visibility such as a known writer, a television anchorman or a bureaucrat of high stature.

(i) Shia mosques have been attacked in addition to Ahmadi mosques.  However Sunni mosques less so probably less because they are in a majority.  Attacks on non-Ahmadi mosques are denounced by the government in no uncertain terms but this was not the case in respect of the attacks on the Ahmadi mosques in May 2010.  The threat of those particular attacks had been there for some time and Ms Jahangir and the Secretary of the Human Rights Commission of Pakistan met the Chief Minister and warned him beforehand yet nothing was done.

(ii) Decisions such as those where an Ahmadi student was denied access to a college could be challenged in the courts but to do so would result in a risk to life and reputation.

(iii) It is correct that no-one has ever been executed under section 295C, the blasphemy provision, but several people have been in a cell for many years, running to between 90 and 120.  Three were her clients, one being an Ahmadi and two Christian.

(iv) Previously, Ahmadis intermarried with other Muslims.  Such unions were not banned before 1974.  Now such marriages are exceptional.

(v) In relation to the reference in her report to the government stating that in October 2012 they had foiled an attempt by militants to attack Ahmadis’ place of worship Ms Jahangir stated that whether this demonstrated the will of the government to protect Ahmadis from militants depended upon who was in the government.  She knew of no “single” case where Ahmadis have gone to the court asking for an FIR to be registered against people.  They have never dared to go to court.  In contrast with collective FIRs, those against individuals are rigorously implemented in the large majority of cases.

SCHEDULE II

THE SUBMISSIONS

(i) There has been no material change since the decision in MJ and Mr Malik adopted the Secretary of State’s position in that decision.  The problem identified by the Tribunal in MJ over the extent of evidence of the number of blasphemy cases remained the same.  The Tribunal then said that it was very difficult to assess real risk in a population of millions of Ahmadis based on an unspecified proportion of an unspecified level of blasphemy charges out of about 50 cases a year. 

(ii) Mr Malik noted that the appellants were relying on these four key points: the application of anti-Ahmadi laws amounts to persecution; the existence of such laws amounts to persecution; the risk from non-state actors and the state’s failure to provide protection and internal relocation not being a viable or reasonable option.

(iii) He argued that the proper inference that can be drawn from the lack of evidence is that either the number of prosecutions and convictions is so insignificant that no-one has ever documented it or the author of the report prepared by the association as evidence of the number of incidents against Ahmadis wants to put forward one side of the picture.

(iv) The statistics relied on by the Ahmadi Association in its 2011 Persecution Report covered a 20 year period between 1984 and 2011.  Even if one were to accept that the figures referred to many cases actually being registered against Ahmadis, the number was still very insignificant.  The registration of a case against someone meant nothing.  It is the police and prosecution who make the decision whether to arrest or charge a person.  There is no reliable evidence that a mere general application of anti-Ahmadi laws amounts to persecution.

(v) As to the proposition that the mere existence of the anti-Ahmadi legislation amounted to persecution, leaders of the Ahmadi faith were given the opportunity to address the law makers before the Constitution was amended (in 1974) and it had been accepted by Dr W that the legislation was rational.

(vi) The decision of the Supreme Court in Zaheeruddin, although argued by Dr Lau to be biased, this was not the position of Ms Jahangir.

(vii) There was no evidence that a well-known Ahmadi who had appeared on national TV as quoted in the Ahmadi Times to have made a mockery of anti-Ahmadi Ordinance was either arrested or charged.  According to the article, someone had gone to the court for registration of the FIR but that petition was dismissed straightaway.  This demonstrates the state has little interest in prosecuting those who breach the anti-Ahmadi laws.

(viii) As to the risk from non-state actors, around 207 Ahmadis were killed in the 28 year period between 1984 and 2011 which includes 86 who were killed on 28 May 2010.  The number of attempted murders is quoted as 234.  As confirmed in his skeleton argument, overall in Pakistan 12,580 people were murdered in 2010 and there were 14,431 attempted murders.  There were eight mosque attacks (as evidenced in a report from South Asian Terrorism Portal) in 2010.  In 2009 there were 17 and in 2008 12.  Such attacks are widespread.  The attacks on 28 May 2010 were the only major terrorist attacks on Ahmadi mosques.  This demonstrated either that the militants or the non-state actors were not keen to attack Ahmadi mosques or that the mosques are adequately and sufficiently protected.  Despite the evidence that no-one in mainstream politics expressed any sympathy in 2010, federal ministers did visit injured people in hospital and the attacks were condemned by everyone in Pakistan.  The attacks were carried out by the Taliban and within weeks after the attacks the suspects were arrested and weapons discovered.  Mr Malik could not see what else a state could conceivably do.

(ix) The killers of Governor Salman Taseer and the Minister for Minorities, Shahbaz Bhatti, were subsequently arrested.

(x) It cannot be said that the media on the whole is biased or hostile towards the Ahmadi.  The evidence by witnesses relating to what it had been asserted by the former Minister Aamar Hussain was exaggerated.  He had been expelled from his party and this was evidence that anti-Ahmadi views were not welcomed in mainstream Pakistani politics.

(xi) There is no evidence that the Khatme-e-Nabuwat incites or participates in the persecution of Ahmadis in Pakistan.

(xii) Dr Lau had given evidence that it would simply be impossible to enforce the FIR against the City of Rabwah.  Despite the evidence of Ms Jahangir, she acknowledged in her report that no-one had been arrested pursuant to that FIR.  There was nothing to back the oral assertion she had made.

(i) NM - The appellant is inviting the Tribunal to go beyond the ambit of the hearing.  The evidence adduced had been rejected by the First-tier Tribunal and those findings have been preserved in the decision of UTJ Dawson on 10 May 2011.  The Upper Tribunal had very properly stopped him (Mr Malik) from cross-examining NM on those matters and it would be wrong in principle to go beyond that ambit.  He accepted that NM has been preaching in the United Kingdom since arrival, but he did not accept that he is a prominent or very exceptional Ahmadi and were he to return to Pakistan he would be able to live freely.  Mr Malik did not accept there was a general risk to the community as a whole and if there is no general risk, the further questions of HJ (Iran) do not apply.

(ii) NH – The First-tier Tribunal rejected all the evidence she had given and gave cogent reasons for doing so.  She did not give evidence before the Upper Tribunal as to what she is doing in the United Kingdom and what it would be she would do on return.  Her claim was bound to fail.

(iii) SB- Her account put forward was rejected by the First-tier Tribunal.  SB had adduced no reliable evidence that she was actually preaching in the United Kingdom and had failed to provide corroborative evidence from the friends and associates she had claimed to preach to.

(iv) NH – Here the First-tier Tribunal had rejected her account.  In explaining why she wished to stay in the United Kingdom there was no reference to any fear of persecution.  We were directed to her answers from the transcript that was available ”…because it is freedom over here, it is a good environment and one has freedom about religion…the imam the khalifa lives in this country…that is all.”  It is submitted that her claim is bound to fail also.

(v) HQ – the First-tier Tribunal had made very clear findings rejecting his account.  Unlike NM he has adduced no reliable evidence that he has been preaching in this country since arrival.  Again Mr Malik relied on the lack of corroborative evidence.

Submissions by Mr Gill QC and Mr D Lemer (for MN, SB and HQ)

(i) The focus is on the test in Art 1A(2) of the Refugee Convention for which the Qualification Directive provides a full and inclusive application setting out minimum tests for persecution and the reasons for persecution in Articles 9 and 10.

(ii) There is no room for limiting the protected area of an individual’s conduct to those actions which could be said to form the central core of his protected characteristic, reliance being placed on Germany v Y & Z and HJ (Iran).  All aspects of the expression of the protected individual identity are in principle protected and the attempt to restrict the protected area to the core activities arises from the misplaced attempt to introduce objectivity to what is a fundamentally subjective assessment of an individual’s faith; and for the Tribunal to apply the core/peripheral test the Tribunal in fact would divert from the key question of assessing what the appellant would wish to do on return; and, furthermore, it suggests erroneously that the Pakistani state has a margin of appreciation that allows for the restriction of an Ahmadi’s allegedly “peripheral” religious rights.

(iii) There is no room for a consideration of what degree of feared interference with the full expression of one’s protected characteristics may be reasonably tolerable.  The search is not for what or may not be tolerable; it is to identify whether the situation into which the applicant risks being faced (and ignoring the fact that harm may be avoided by a self-induced restraint or concealment of his protected characteristic due to a fear of harm) amounts to a severe violation of his basic human rights or freedoms and thus to persecution.

(iv) The question which is likely to require greater scrutiny is not whether the applicant’s desired activity is protected by international human rights norms: the full breadth of it almost certainly will be, so long as he does not engage in that activity in a way which amounts to a disproportionate interference with the internationally recognised basic human rights and freedoms of others.  The question which is likely to require the greatest attention is whether the feared interferences with the manifestation or expression of the applicant’s protected characteristic amount, by reason of their nature or repetitive or cumulative effect, to persecution.

(v) The correct analysis involves a consideration of:

(a) what religious activities would an applicant wish to engage in upon return; and

(b) whether, if he were to engage in those activities, he would be exposed to a real risk of persecution.

(vi) The general submission is made that the evidence demonstrates that at the very least Ahmadis are at risk in Pakistan when they openly express their faith (in contravention of the Pakistan Penal Code) resulting in a real risk of prosecution amounting to persecution and/or when they become known to non-state agents as Ahmadis resulting in ill-treatment against which the state will be unwilling or unable to protect them.  Additional risk factors included activities for the Ahmadi community in the United Kingdom.

(vii) The risk of persecution of Ahmadis in Pakistan has to be viewed in the context of Pakistan’s legislative measures, the actions and policies of state organisations, law enforcement agencies, the media and other leading institutions.

(viii) A prosecution will amount to persecution where (with reference to Article 9(2)(c) of the Qualification Directive) the prosecution or the punishment arising from it is discriminatory and/or disproportionate as well as the impact of the criminal justice process considered as a whole.

(ix) It may be open to the state to provide for restrictions upon religious practices supported where necessary by criminal punishment, provided that those restrictions are both non-discriminatory and proportionate to the legitimate aim of promoting religious pluralism and ensuring peaceful coexistence of religious groups, reliance being placed for this contention on Federal Republic of Germany v. Y & Z.

(x) It is contended that the introduction of the provisions in the Pakistan Penal Code were motivated by increased religious extremism in Pakistan rather than the need to secure public order and if it was the latter it meant the state had capitulated and sacrificed the rights of a minority group in view of the demands of an oppressive majority.  Thus, far from being a rational system it is contrary to all norms of human rights, as indicated by Lord Dyson in HJ (Iran) in his reference to African countries needing to reflect in state practice strongly and genuinely anti-gay views.

(xi) It is argued that it is not realistically open to Ahmadis to achieve an amendment of the provisions and as an indicator of persecutory treatment reliance is placed on the targeting of Ahmadis under the relevant provisions of the Pakistan Penal Code, the length of pre-trial detention and the inability of Ahmadis to secure release on bail, as well as a lack of fair trial procedures.  Account is to be taken also of the length of post-trial detention pending appeal and the treatment of Ahmadis in detention.

(xii) It is further contended that persecution can be established in other ways and for the Ahmadi there are restrictions in relation to voting, marriage, education, employment, freedom of expression, freedom of assembly and access to humanitarian relief.

(xiii) It is necessary for adherents of the Ahmadi faith to curtail their expression of religion by avoiding the use of the nomenclature set out in section 298B, abstaining from reciting azan, not defining or referring to themselves as Muslims, not being able to undertake the haj (one of the five pillars of Islam) and not disseminating their faith.

(xiv) As to Convention reason, the protected religious activity is relied on coupled with actual or imputed political opinion which can cover any action perceived to be a challenge to government authority.

(xv) Non-state actors including the Khatme-e-Nabuwat are central to the risk of persecution of Ahmadis arising from their instigation of prosecutions under the Pakistan Penal Code and the fact that the Pakistani state is either unwilling and/or is unable to provide adequate protection in the face of ill-treatment from non-state actors.

(xvi) Internal relocation is not available because an open expression of faith will lead to real risk of prosecution and/or ill-treatment from a non-state agent throughout Pakistan.

(xvii) Ahmadis are the most targeted minority in Pakistan and there has been an increase in incidents of violence over the past three years.  Although in absolute terms the statistics regarding the number of prosecutions and deaths do not demonstrate a vast number, this is explained by under-reporting, inadequacies of the system for recording, statistics and the great extent to which most Ahmadis exercise extreme discretion in the exercise of their faith in the light of the high risk of targeting by state and non-state agents.

(i) There is a fundamental flaw in the way in which the Secretary of State has put the case because on the one hand it is accepted that concealment, discretion, restraint, is not to be expected of an individual and that a real risk of persecution would be made out if a person behaves as an Ahmadi openly and if he faces certain consequences which arise to an inappropriate level, it is accepted by the Secretary of State that will amount to persecution.  However the Secretary of State has submitted that it is only her definition of openness that the Tribunal can adopt.  The Secretary of State’s idea of openness denies an Ahmadi even the most basic aspects of his identity which is to pray openly in public or in private in the community of others and denies them the essence of their religion which would include their right to preach or to propagate.

(ii) There is no basis in any form of international case law or domestic case law which would support the proposition that the Pakistani law affecting Ahmadis is rational.

(iii) The individual is entitled to the fullest expression of a religious identity which is one of the most important and personal things to an individual which the lexicon of human rights seeks to protect.  It is degrading to an individual to have to conceal something as fundamental as a religious identity.  To deny the right to do that on a discriminatory basis is degrading treatment.

(iv) For the Ahmadi there is an atmosphere of constant insecurity and fear of arbitrary violation of Article 3 rights, Article 5 rights, Article 9 and 14 rights.  The fact that the risk of detention is constantly there, the effect that one can assume will have on a person’s state of mind and the chilling effect that there will be on such individuals to therefore hide their identity, all that is a condition of being rendered invisible, effectively as the Jews had to be during the course of 1930s Nazi Germany.

(v) In contrast with the appeals before us, the previous case law did not analyse the Pakistani laws or the application in the way which has now been possible and things have changed significantly since MJ.  There is a growing trend of Islamisation in Pakistan so that any group or individual who is perceived as being anti the mainstream Islam is a legitimate target.

(vi) With reference to the opinion of Advocate General Bot:

“It is for the authority responsible, the asylum granting authority for reviewing the application of someone to verify whether the legislation is actually implemented by the Pakistani authority … on the basis of regular reports issued by states and by organisations for the protection of human rights.  If it is it can reach the level of persecution.”

Mr Gill accepted that despite these remarks, it is a shared duty.

(vii) The category of individuals therefore who are at risk is going to be far, far broader than was thought to be the case in MJ.  It is going to encompass anybody who genuinely says:

“The following activities are important to me in the way in which I express my faith.  If I indulge in those activities I will come to the attention of groups like KN, and that will give rise to an atmosphere of insecure daily living, which I should not be expected to put up with and if an FIR is issued, even more so.”

The case was not being kept that narrow and (based on Mr Gill’s earlier submissions),  to deny people the ability to express aspects of their faith, amounts in itself to persecution irrespective of whether they attract the interest of the Khatme-e-Nabuwat.

(viii)  The evidence of Ms Jahangir is important as she accepts that women face additional hurdles and problems and additional discrimination and risks within Pakistani society and so therefore are more easily targeted.  They become visible partly from the way they dress.  Although women tend to get bail more easily, one could see why, bearing in mind the criticism there has been of Pakistan’s treatment of women in the legal system.

(ix) As to Article 9 of the Human Rights Convention the law on proportionality needed to be applied but when there is a manifestation of such a fundamental right as the right of religion, a high set of circumstances would be required which could justify interference.  Even though Mr Gill did not accept the core periphery analysis, he submitted that the manifestation of religious identity of the Ahmadis is being interfered with in Pakistan in a very core way, amounting to a denial of core identity.

(x) It is not just a case of the law which on its face is neutral being applied in a discriminatory and persecutory manner, the case being put is that the law itself is stated to be anti-Ahmadi and targeting a particular community group.

(xi) All Ahmadis are potentially at risk but that does not mean to say that there will not be cases that fail. By the phrase “genuine Ahmadi”, it was meant somebody who was actually interested in expressing a religious identity.  One may have a genuine Ahmadi who may say, “well I am a genuine Ahmadi but I don’t actually do anything about it, I don’t manifest my “Ahmadiness” in any way because it is not important to me”.  That is not the sort of person, Mr Gill argued, needs protection.  Mr Gill illustrated this with reference to someone who was born an Ahmadi but did nothing about it in practice or in terms of openness in the way in which life was lived.

(xii) In principle, the perception of others that a lapsed Ahmadi is still an Ahmadi could in theory give rise to an argument for protection but evidence would need to be produced in such cases.

(i) It is right to recognise that there is an apparent contradiction between the information available that the numbers of Ahmadis being prosecuted or encountering ill-treatment looks quite low and the evidence of significant problems for Ahmadis in Pakistan.  The vast majority of Ahmadis however will take significant precautions in manifestation of their religious beliefs and so the incidents of violations are less.  There are reasons why individuals would not want to involve the community for support as they may wish to use other means to solve the dispute by perhaps giving in to the business rival and it may not be in the particular interests of an Ahmadi to raise the profile of their complaint by reporting it to the community.

(ii) The annual community report for 2011 records the outcome of cases where FIRs had been issued, indicating there is some analysis.  Analysis of outcomes of FIRs on a systematic basis will require a very considerable amount of organisation to track through what has happened to each person who ends up within the Pakistani criminal justice system.

(i) Article 18 of the Universal Declaration of Human Rights of 1948 became a norm of international law in 1966 with the International Covenant on Civil and Political Rights which made concrete the basic freedoms of religion and conscience articulated in the UDHR and made its signatories bound by it.  In addition to prohibiting state coercion that would impair a person’s freedom to practise or adopt a religion or belief of their choice, the ICCPR also prohibits states from denying religious minorities the right, in community with other group members, to enjoy their own culture, profess or practise their own religion or to use their own language.  Such rights are non-derogable except where the interests of public safety, order, health or morals, or the fundamental rights and freedoms of others as prescribed by law, justifies their limitation.

(ii) There is a consistent theme within international jurisprudence that restrictions on public and other expressions of faith will amount to persecution under the Convention: Bastanipour v Immigration & Naturalisation Service 980 Fm 2^nd 1129 (7^th Circuit, 7 December 1992), Kazemzadeh v Attorney General (11^th Circuit, 6 August 2009) (US):, Appellant S395/2002 [2003] HCA 71 (Australia), NABD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 29 (Australia) Wen v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 (Australia), Fosu v Canada (Minister of Employment & Immigration) [1994] 90 FTR 182, FCJ No. 1813 (Canada), Husseini v Minister of Citizenship & Immigration [2002] FCT 177, Irripugge v Canada (Minister of Citizenship & Immigration [2000] 182 FTR 47 (Canada), Golesorkhi v Canada (Citizenship & Immigration) [2008] FC 511 (Canada), and Zhou v Minister of Citizenship & Immigration [2009] FC 1210.

(iii) HJ (Iran) is born out of these authorities.

(i) It is important to look at faith and belief in a holistic way but the starting point is whether Ahmadis consider themselves Muslim to which the answer is a definite yes and as a consequence should be able to stand in a market and say “I am a Muslim”.

(ii) There is nothing disguised about the Ordinance XX and the anti-blasphemy laws; you do not have to work on the basis of any subtle inference, it is persecutory as it declares Ahmadis to be non-Muslims and they are not permitted to express themselves as such.

(iii) It is very difficult to divorce the question of being an Ahmadi from a political issue as it is one that strikes at the very heart of the integrity of the Pakistani state and that is the reason why Ahmadis – as opposed to all other minorities – pose much more of a threat than any of the other minorities as is clear from history.

(iv) The Pakistani state uses the law as a persecutory tool against Ahmadis and the anti Ahmadi legislation itself is persecutory as it breaches core principles of human rights law.

(v) An Ahmadi is somebody who declares himself to be an Ahmadi not somebody who has committed various degrees of propagation of the faith.

(vi) Ahmadis have had to perform self-repression and self-denial since the anti-blasphemy laws came about.

(vii) For 22 years, Ahmadi women have actually never been considered by the Tribunal.  The role of women within the Ahmadi community is quite core.  They are educators, they are nurturers and they retain the honour of the community.  They are in a particularly vulnerable situation.  They are unable to take their children to the mosque and they cannot meet other women in communality of worship which is the highest form of worship with other women in the mosque.  They experience persecution as Ahmadis through a different prism.  Women’s organisations within the Ahmadi community are extremely visible.  The way in which the community is protecting Ahmadi women is to require them to stay at home and this is one of the worst and most profound aspects of persecution in Pakistan.  Ahmadis neither enjoy the full rights nor the basic rights of citizenship in Pakistan evidenced by the situation over passports.

(viii)  The anti-blasphemy laws negate the essence of being an Ahmadi.  The issue is not whether an Ahmadi being returned is going to propagate but rather the issue is the right of an Ahmadi to declare himself a Muslim in any way, shape or form.

(i) Gay marriage and the right to organise a parade are rights which are protected by international law in the same way that the right to freedom of religion is.

(ii) Despite the submission of the Secretary of State that Ahmadis are not being forced to lie, it is his contention that they are in order to obtain a passport or to vote which are core civil rights.

(iii) “Living openly” (the phrase in HJ (Iran)) is about sexuality. However what is in issue in the appeal is freedom of expression of religion and this would be a better way of putting it rather than living openly.

(iv) It was an incorrect approach to divide a religious group into quiet and loud adherence and its previous approach to exceptional and unexceptional or proselytising and quiet Ahmadis relying on NABI  v Minister for Immigration and Multicultural Affairs & Anor [2005] HCA39.

 (v) A further authority NAEB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 79 indicated the correct approach where somebody had only a loose commitment which if so might not create a Convention reason at all.

(vi) In assessing risk it is not only the way in which people themselves self-identify but also the perception of others around them.  If someone is seen as an Ahmadi they would be at risk and this would apply even if someone were not going to the mosque on a regular basis.

(vii) Mr Yeo urged caution on the Tribunal as to its expectations of the evidence that might be available for Ahmadis.  The Ahmadi Association does not exist for the purpose of collecting statistics and they do their best to collect data.  It is correct that there is an absence of information on the follow-up to Ahmadis against whom FIRs have been filed.  It is not that they have got the data and are hiding it, it is simply that they did not see that it is particularly important and those affected would not always want or be able to inform them.

(viii)  It is important not to hold the experts out as something they are not.  The Ahmadis are the best people to give evidence on what it is like to be an Ahmadi and on the experience of Ahmadis in Pakistan.  It is true that they are not independent and it would also be right to say that they are not objective but that does not mean that they are not reliable.  Dr Hamid’s evidence should be seen in this light.

MN, SB, and HQ

(i) The appellant has advanced significant evidence as to his religious activities in the United Kingdom.

(ii) It is recognised that the Tribunal has expressly chosen to limit its further consideration of his case to his proposed conduct on return.  It is submitted that he would be at risk on return in the light of the evidence advanced during the course of the hearing before the Upper Tribunal as a result of his presence on the published list of Ahmadis who were injured during the 28 May 2010 mosque attacks and his consequential position as a prominent Ahmadi upon return.

(iii) The evidence clearly indicates that those who would wish to openly proselytise are at risk of ill-treatment from non-state agents and prosecution by the Pakistan state under the Pakistan Penal Code on the basis that any prosecution under that code would amount to persecution and in the event it did not it amounted to a breach of Article 9 of the Human Rights Convention.

(iv) It is not open to the appellant to temporarily relocate as no evidence suggested an openly proselytising Ahmadi could live safely elsewhere, taking account of the nationwide structure and reach of the Khatme-e-Nabuwat.

(v) A further risk factor is the profile of the appellant within the Ahmadi community in the United Kingdom and the evidence suggesting that the Khatme-e-Nabuwat have the ability to identify such individuals to their colleagues in Pakistan.

(vi) For the appellant, open preaching forms an important/core part of his religious identity but he does not accept that it is necessary to demonstrate that preaching forms part of the core identity, merely that he would genuinely wish to preach and manifest that aspect of his faith.

(i) None of the matters asserted by SB (in support of her claim) are actually rejected by the First-tier Tribunal save for the complaint made against her in December 2010.  The core of her claim was accepted and on the further evidence she gave to the Upper Tribunal:

(a) she is an Ahmadi woman who has had to restrain or conceal her religious activities including preaching due to a fear of serious harm;

(b) she has been restricted in numerous ways from the expression of her faith which strike at the heart of her religious identity;

(c) she had occupied a preaching role for about twelve years but contrary to her reasonable desires this had to be limited to select audiences;

(d) SB occupies a position more prominent or visible than the average Ahmadi who does not speak out or does not take the lead preaching role.  The First-tier Tribunal had not rejected the account that she suffered the attentions of Khatme-e-Nabuwat for many years.

(ii) Had the FT addressed the issue of restraint due to fear, her appeal would have been allowed.

(i) It is noted that the Upper Tribunal’s consideration of HQ’s claim is limited by virtue of the various unchallenged findings of the First-tier Tribunal, namely:

(a) the account of events in Pakistan has been rejected;

(b) however the appellant’s account of active involvement with the Ahmadi community in the UK and his wish to be fully involved in the practice of his religion including openly preaching is unchallenged, such practice including distributing leaflets, explaining the brief ideas of her faith, referring people to the community website, undertaking various posts in the United Kingdom, and attendance and participation on preaching stalls.

(ii) Were HQ to openly proselytise she would face prosecution and that prosecution would amount to persecution. If not it would amount to a flagrant breach of Article 9 of the Human Rights Convention.

(iii) The option of internal relocation is not available as there was no evidence to suggest that an openly proselytising Ahmadi could live safely anywhere in Pakistan and having regard to the nationwide structure of the Khatme-e-Nabuwat.

(iv)           It is argued that the appellant’s risk is heightened by the high profile he has had with the Ahmadi community in the United Kingdom and the evidence suggesting that the Khatme-e-Nabuwat have the ability to identify such individuals.

(i) As to NM, there was unchallenged evidence as to his acts of preaching in the United Kingdom.  It was of somebody who had really exhibited his intention to openly preach in the UK and that has to be contrasted with the findings in relation to what had happened to him in Pakistan.  NM is a person who would wish on his account to openly preach and exhibit his faith upon return to Pakistan.

(ii) Internal relocation was not raised in SB’s case in the First-tier Tribunal and no Rule 24 response has been raised in relation to it.  The First-tier Tribunal Judge had only mentioned four reasons for concluding that he could not accept the account as true of her activities and experiences in Pakistan.  In essence, the judge had accepted that she had taught for about twelve years and had taught to non-Ahmadis but had taken great care to ensure that it was not to people she did not know something about.

(iv) The same questions are applicable to HQ.  Mr Malik had argued that HQ had not submitted any evidence to demonstrate he had been preaching.  This is not accepted.  Findings were actually made by the First-tier Tribunal that he had been distributing leaflets to homes and shops in the United Kingdom and referring people to the community website in explaining the brief ideas of the Ahmadi faith, all of which had been accepted.  A letter from the Ahmadi Muslim Association of 13 March 2012 corroborated his activities.

SCHEDULE III

SUPPLEMENTARY Submissions

RT (Zimbabwe)

(i) This case is relevant as it addresses the core/marginal belief discourse.

(ii) As Lord Dyson recognised [paragraph 42], the SSHD’s attempt to shift the debate towards a reliance on a core/marginal distinction “bears a striking resemblance to the Secretary of State’s contention in HJ (Iran) that the individuals in that case would only have a well-founded fear of persecution if the concealment of their sexual orientation would not be ‘reasonably tolerable’ to them”.  Reference is made to para [47] of RT (Zimbabwe) where Lord Dyson says that the Secretary of State’s suggested core/marginal distinction misunderstands HJ (Iran).

(iii) It follows from RT (Zimbabwe) that an analysis of the nature of the proposed/actual activity needs to be undertaken.

(iv) Both Germany v Y & Z and RT (Zimbabwe) are entirely consistent with the appellants’ submissions that the Pakistani state is not entitled to prescribe limitations to the right to religious belief in the way that it has done.  The conduct which the appellants wish to be able to carry out (the various forms of expression and manifestations of their religious belief in which they consider are restricted) cannot be described as being part of the margins of the protected right.

(v) In the context of Ahmadis in Pakistan the appellants submit that any manifestation of belief that would lead to potential prosecution within the PPC, or ill-treatment at the hands of extremists, is by definition sufficiently core to attract the protection of the Refugee Convention.  There is no reason to treat being at the margins of any type of expression of religious identity (which go far beyond just religious preaching and propagation of belief) which the appellants wish to carry out in these cases.

(vi) The rejection in RT (Zimbabwe) of the Secretary of State’s reliance on the core/marginal distinction was in firm terms.  Protection will extend for example to an Ahmadi businessman who may not be religious in many ways but it was treated by others as being an Ahmadi and who by reason of that fact, faces persecution.  There is nothing marginal about the right of an Ahmadi not to practise his religious identity and yet be free of the risk of persecution at the hands of those who would label him as an Ahmadi and persecute him on that ground.

(vii) The question is not how important is the right in question to the individual.  The question is whether the right in question falls from the area of protected activity and whether the right (or perceived or imputed possession or expression of it) gives rise to a risk of persecution.  As the appellants have been at pains to point out, the present case is not simply about preaching.  It involves the expression of all aspects of “Ahmadiness” in Pakistani society.

(viii)  The importance of the right in question can however be relevant in intensifying the sense of persecution so that acts which may not otherwise be persecutory become persecutory because of the importance to the individual of fully protected right.

International Religious Freedom Report 2012

(ix) It is submitted that this report is consistent with the country information previously advanced and specific passages are referred to including the increase in societal intolerance and violence against minorities.  Of the statistics concerning murders of Ahmadis it is noted that five were murdered in the year and two blasphemy cases were registered against Ahmadis, such figures being consistent with the persecution of Ahmadis in Pakistan during the year 2011 report.

Federal Republic of Germany Y & Z C-71/11, and C-99/11

(x) The CJEU makes it clear that it is not necessary to distinguish between core and non-core areas of an individual’s religious manifestation.  The definition of religion encompasses all of its aspects, be they public or private, collective or individual.

(xi) The CJEU has clarified that acts which may constitute a “severe violation” within the meaning of Article 9(1)(a) of the Qualification Directive includes serious acts which interfere with the applicant’s freedom not only to practise his faith in private circles but also to live that faith publicly.  All kinds of acts of interference with the right to practise one’s religious belief may amount to persecution depending on whether by reason of its nature or repetition, it amounts to a severe violation.  Reliance is placed on the appellants having already demonstrated the evidence of this.

(xii) The CJEU has held that acts which on account of their intrinsic severity as well as the severity of their consequences for the person concerned may be regarded as constituting persecution and that such acts must be identified, not on the basis of the particular aspect of religious freedom that is being interfered with but on the basis of the nature of the repression inflicted on the individual and its consequences as observed by the Advocate General at point 52 of his Opinion.  It is argued that there can be acts which are so restrictive of the practice of religion that the intrinsic severity of the restriction itself is enough to amount to persecution irrespective of the consequences.  The mere fact that communal worship is so rigidly controlled by the state, so that even the collective saying of prayers in the manner required by Ahmadi religious belief is prohibited, in itself amounts to persecution.

(xiii)  An assessment of the severity of the measures and sanctions adopted (or likely to be adopted) determines whether the violation constitutes persecution.  It is contended that at paragraph 69 the CJEU made it clear that persecution for participation in formal worship, either alone or within a community, may well amount to persecution.  The court further held that it was relevant in determining whether there is a risk of persecution to make an objective assessment as to what an individual would wish to do.

(xiv)  It is submitted that the CJEU continues to reject the core/peripheral dichotomy proposed by the respondent.  Whilst the Secretary of State had suggested that the Supreme Court’s judgment in RT (Zimbabwe) should be confined to its political opinion based context, it is now clear that such a distinction is redundant.

(xv) As to the respondent’s submission that it is material to determine whether the religious manifestation is core or peripheral to the protected right, the Court of Justice judgment expressly undermines the contention that a focus on the nature of the religious manifestation is relevant.

(xvi)  The need to consider the subjective circumstances requires a consideration of what the individual appellant would wish to do on return to Pakistan in the practice of their Ahmadi faith.  The court’s judgment is a clear and unequivocal endorsement of the position adopted by the appellants: 

“The application of the tests set out by the CJEU are to the sort of conduct which the appellants would wish to carry out in Pakistan and as the appellants have made clear, we are not simply talking about preaching but about manifestations of their religion and the practice of what is required by the religion in all aspects of life means that each of the appeals must now succeed.”

(i) The appellants’ case is that the Ahmadis are persecuted by being prevented from practising their faith at pain of persecution and are actively targeted for persecution and are denied protection and their civil rights which either constitutes persecution or contributes to it.

(ii) Some of the terminology of RT (Zimbabwe) may require adjustment for the concepts to be applied accurately in the different context of religion as opposed to sexuality or political opinion.  ‘Living openly’ is not quite the right test in the context of religion for example.  A better analogy would be ‘free to practise one’s religion’.

(iii) In RT (Zimbabwe) Lord Dyson comprehensively rejects the Secretary of State’s proposed distinction between core and peripheral aspects of rights or gradations of Convention reasons.  At a practical and basic level, what is considered peripheral to one person may be considered core to another but this may be irrelevant because the perception of the persecutor may be more important.  The use of the false core/peripheral dichotomy risks in the context of Ahmadis in Pakistan and other groups who have suffered longstanding persecution embedding and retrospectively justifying the very persecution complained of.

(iv) All that matters is whether the person genuinely self-identifies as Ahmadi or in the alternative would be perceived as being Ahmadi by actors of persecution.

(v) The anti-Ahmadi laws, the discriminatory application of blasphemy laws and the increasingly militant public discourse in Pakistan engender an atmosphere of ‘if you are not with us you are against us’.  Ahmadis are perceived as being disloyal to the Prophet Mohammed, to Islam and to the Pakistani state.

(vi) The submissions reiterate the appellants’ case regarding the difficulties encountered by Ahmadis in Pakistan with the argument that Ahmadis have to pretend not to be Muslim and not to consider themselves Muslim in order to avoid being persecuted.  They consider this a lie and they have to live that lie everyday in Pakistan.

Religious Freedom Report 2011

(vii) It is observed that the report repeatedly indicates that religious freedom generally is deteriorating in Pakistan not improving identifying that legal and policy restrictions on religious freedom are generally enforced against Ahmadis.

(i) The requirement to self-repress is a requirement in place throughout the life of an Ahmadi.  The restrictions on civil rights are part of the accumulation of various measures including violation of human rights.

(ii) There is no distinction between peripheral and core areas of practice.  Ahmadis cannot engage in formal worship without profound restriction and women cannot engage in formal restriction in community with others, at all.

(iii) It is not reasonable that Ahmadis deny that they are Muslims and assert the finality of the prophet in order to avoid persecution.

Glossary of words as provided by the parties

(as provided by the parties)

Copy of Ordinance No. XX Of 1984 and 1986

Amendment to the section 295c of the Pakistan Penal Code

EXTRAORDINARY

PUBLISHED BY AUTHORITY

ISLAMABAD, THURSDAY, APRIL 26, 1984

PART 1

Acts, Ordinances, President's Orders and Regulations including Martial law Orders and

Regulations of the Government of Pakistan

MINISTRY OF LAW AND PARLIAMENTARY AFFAIRS (LAW DIVISION)

Islamabad, the 26th April 1984 No. F.17 (1) 84-Pub.

The following Ordinance made by the President is hereby published for general information.

ORDINANCE NO. XX OF 1984

AN ORDINANCE

to amend the law to prohibit the Quadiani group, Lahori group and Ahmadis from indulging in anti-Islamic activities:

WHEREAS it is expedient to amend the law to prohibit the Quadiani group, Lahori group and Ahmadis from indulging in anti-Islamic activities:

AND WHEREAS the President is satisfied that circumstances exist which render it necessary to take immediate action:

NOW, THEREFORE, in pursuance of the Proclamation of the fifth day of July, 1977, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:

PART I – PRELIMINARY

1. Short title and commencement.

(1) This Ordinance may be called the Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984.

(2) It shall come into force at once.

2. Ordinance to override orders or decisions of courts.

The provisions of this Ordinance shall have effect notwithstanding any order or decision of any court.

PART II - AMENDMENT OF THE PAKISTAN PENAL CODE (ACT XLV OF 1860)

3. Addition of new sections 298B and 298C, Act XLV of 1860.

In the Pakistan Penal Code (Act XLV of 1860), in Chapter XV, after section 298A, the following new

sections shall be added, namely:

“298B. Misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or places.

(1) Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name) who by words, either spoken or written, or by visible representation;

(a) refers to, or addresses, any person, other than a Caliph or companion of the Holy Prophet

Muhammad (peace be upon him),as ‘Ameerul Mumineen’, ‘Khalifa-tui-Mumineen’, ‘Khalifatul-

Muslimeen’, ‘Sahaabi’ or ‘Razi Allah Anho’

(b) refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (peace be upon him) as ‘Ummul-Mumineen’

(c) refers to, or addresses, any person, other than a member of the family (Ahl-e-bait) of the Holy Prophet Muhammad (peace be upon him), as ‘Ahl-e-Bait’; or

(d) refers to, or names, or calls, his place of worship as ‘Masjid’;

shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

(2) Any person of the Quadiani group or Lahori group (who call themselves Ahmadis or by any other name) who by words, either spoken or written, or by visible representation, refers to the mode or form of call to prayers followed by his faith as ‘Azan’ or recites Azan as used by the 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.

298C. Person of Quadiani group etc., calling himself a Muslim or preaching or propagating his faith.

Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name), who, directly or indirectly, poses himself as 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.”

ACT III OF 1986

CRIMINAL LAW (AMENDMENT) ACT, 198

An Act further to amend the Pakistan Penal Code and the Code of Criminal Procedure, 1898

(Gazette of Pakistan, Extraordinary, part 1, 12th October 1986)

The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on the 5th October, 1986 and is hereby published for general information:

WHEREAS it is expedient further to amend the Pakistan Penal Code (Act XLV of 1860) and the Code of Criminal Procedure, 1898 (Act V of 1893), for the purposes hereinafter appearing:

It is hereby enacted as follows:

SECTION 295C PAKISTAN CRIMINAL CODE

1. Short title and commencement

(1) This Act may be called the Criminal Law (Amendment) Act 1986.

(2) It shall come into force at once.

2. Insertion of new section 295-C, Act XLV of 1860. In the Pakistan Penal Code (Act XLV of 1860), after section 295-B, the following new section shall be inserted, namely:

“295-C. Use of derogatory remarks, etc. in respect of the Holy Prophet.

Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine."

DOCUMENTS BEFORE THE UPPER TRIBUNAL

Extract from “Persecution of Ahmadis in Pakistan during the Year 2011”

Annex I

Particulars of Police Cases Registered on Religious grounds against Ahmadis during 2011

Penalties: PPCs 295-C, 302 – death; 295-B – imprisonment for life; 324 – seven years’ imprisonment; 298-C, 379, 337, 148, 149 – three years’ imprisonment; 279 – imprisonment for two years; 109 – as for the offence; 7-ATA -; 16 MPO – detention up to three months; 7-ATA – trial in an anti-terrorism court.