A & Anor, R (on the application of) v Secretary of State for the Home Department

In assessing removal claims based on religion, a decision-maker must consider whether the claimant would live openly in the receiving state and, if so, what treatment would result. The claimant cannot be required to conceal religious identity to avoid persecution or ill-treatment. That factual analysis does not remove the high threshold applicable to an Article 9 removal claim. The claimant must still show treatment amounting to a flagrant denial of Article 9 rights, ordinarily involving a real risk of Article 3 ill-treatment. General evidence of hostility or attacks is insufficient without a real personal risk or an insufficiency of state protection. Further representations constitute a fresh claim only where, taken with earlier material, they give a real prospect of success on reconsideration and appeal.

Two Pakistani Christian sisters sought judicial review of refusals of discretionary leave to remain and of the Secretary of State’s refusal to treat further representations as fresh asylum and human-rights claims. Their original asylum and human-rights appeals had failed, and a joint application to the European Court of Human Rights had been declared inadmissible. Permission to apply for judicial review was initially refused on the papers, but the applications were renewed.

The claimants relied on the Court of Appeal’s decision in J v Secretary of State for the Home Department [2007] Imm AR 1, arguing that the reasoning concerning concealment of sexual identity altered the approach to religious persecution and undermined R (Ullah) v A Special Adjudicator and Others [2004] INLR 381. The central issues were whether the Secretary of State had applied the correct legal approach and whether the new material created a real prospect of success.

1. Correct approach to concealment. The decision-maker cannot require a claimant, in her own interest, to live her religious identity secretly merely because open worship would expose her to persecution or ill-treatment. The proper factual question is what would happen if she lived openly as a Christian worshipper in the receiving state.
2. Article 9 threshold preserved. The Court of Appeal’s reasoning in J v Secretary of State for the Home Department [2007] Imm AR 1 concerned the factual analysis necessary to decide whether the persecution threshold was met. It did not undermine R (Ullah) v A Special Adjudicator and Others [2004] INLR 381. A claimant relying on Article 9 must still establish treatment involving a flagrant denial of the right, and the relevant treatment would ordinarily also engage Article 3.
3. Fresh claim. The additional country material showed continuing threats and violence against Christians and Christian congregations in Pakistan. It did not arguably establish a personal risk to either claimant, persecution by or on behalf of the state, or an insufficiency of protection of a magnitude capable of violating Articles 3 or 9. The Secretary of State was therefore entitled to conclude that the material disclosed no real prospect of success on reconsideration and appeal.
4. Article 8 and family circumstances. The claimants’ circumstances were materially different from those of family members who had obtained leave to remain. Anxiety about extremism, without more, did not make refusal of leave disproportionate.
5. The claims failed. The claimants were ordered to pay costs assessed at £1,500 each, £3,000 in total.

• High Court (Administrative Court): Collins J refused permission on the papers. On renewal, Pitchford J dismissed the claims and upheld the Secretary of State’s decisions.