Secretary of State for the Home Department v Ahmed

Refugee status depends on whether there is a serious risk that the applicant will be persecuted for a Convention reason if returned. The applicant does not lose that status merely because the risk would arise from conduct which might reasonably be avoided, or from conduct which the decision-maker regards as unreasonable.

The decision-maker must determine, on the evidence, how the applicant would in fact behave on return and whether that conduct would expose him to persecution. A finding that the applicant ought to exercise restraint cannot substitute for that factual inquiry. The applicant's asserted future conduct may be tested sceptically and bears on credibility, but it does not itself defeat a well-founded fear.

The asylum claimant, a Pakistani Ahmadi, had suffered religious persecution in his village. The special adjudicator accepted his evidence that he would continue openly to propagate Ahmadi beliefs if returned to another part of Pakistan, and allowed his appeal.

The Immigration Appeal Tribunal allowed the Secretary of State's appeal. It held that internal relocation was available and that the claimant could reasonably exercise discretion in practising and propagating his faith. The claimant appealed to the Court of Appeal. The central issue was whether the Tribunal could reject the claim on the basis that he should restrain conduct which, on accepted evidence, he would in fact continue and which would expose him to persecution.

1. The Court of Appeal unanimously allowed the appeal. Lord Justice Simon Brown gave the lead judgment, with Lord Justice Robert Walker and the President agreeing. The Immigration Appeal Tribunal's decision was set aside and the special adjudicator's decision was restored.

2. The governing inquiry was whether there was a serious risk that, if returned, the claimant would be persecuted for a Convention reason. The claimant's unreasonable conduct, including conduct deliberately creating a risk, did not forfeit refugee status if that risk was established. Such conduct was nevertheless highly relevant to whether the asserted future risk was credible.

3. Danian v Secretary of State for the Home Department established that principle for conduct occurring after arrival in the United Kingdom. Simon Brown LJ held that the same principle applied where the claimed risk depended on conduct the claimant said he would undertake after return. The material question was whether he would in fact behave in that way and suffer persecution, not whether restraint could reasonably be expected of him.

4. The earlier authorities, including Ahmad v Secretary of State for the Home Department [1991] Imm AR 61, did not create blanket refugee status for Ahmadis and showed that unsupported assertions of future prohibited activity could properly be rejected. They did not support refusing refugee status where accepted evidence established that the claimant would continue the conduct and thereby face persecution.

5. Here, the Tribunal had accepted the claimant's history of persecution and his evidence that he would remain vocal in propagating his faith. It either treated that evidence as immaterial or assumed, without an evidential basis, that he would behave with the restraint it regarded as reasonable. Neither course was lawful. Even if restraint could reasonably be expected, and notwithstanding the possible limitations on manifestation of religion contemplated by article 9.2 of the ECHR, that did not defeat the asylum claim.

• Court of Appeal (Civil Division): Allowed the asylum claimant's appeal in [1999] EWCA Civ 3003, set aside the Immigration Appeal Tribunal's decision and restored the special adjudicator's decision.

• Immigration Appeal Tribunal: On 11 December 1998, allowed the Secretary of State's appeal on the ground that internal relocation was available.

• Special adjudicator: On 3 June 1997, allowed the claimant's asylum appeal after accepting that he had been persecuted for a Convention reason.