MT v Secretary of State for the Home Department

Where an asylum claimant would practise their religion discreetly on return, the tribunal must determine why they would do so. If a material reason is a fear of persecution should they practise openly, discretion does not defeat a well-founded fear of persecution. The approach in HJ (Iran) [2010] UKSC 31 is not confined to sexual-orientation claims and can apply to religious practice. The tribunal must assess the claimant’s likely future conduct, including past practice, and whether restraint is conditioned by feared persecution.

The appellant, a Pakistani Ahmadi, claimed asylum on the basis of risks arising from his religious activities. An Immigration Judge rejected much of his account but accepted that he was a devout Ahmadi who had written religious books and preached privately only to persons considered not dangerous. The Immigration Judge dismissed the appeal, applying country guidance in MJ and ZM (Ahmadis – risk) Pakistan CG [2008] UKAIT 00033.

Permission to appeal was granted on the issue whether the Immigration Judge had failed to apply HJ (Iran) [2010] UKSC 31. The central issue was whether the appellant’s private and cautious preaching would be discreet because of a fear of persecution if he practised more openly.

1. Appeal allowed. The Immigration Judge made a material error of law by failing to apply HJ (Iran) [2010] UKSC 31 to the accepted facts. The Upper Tribunal remade the decision and allowed the appellant’s asylum appeal.

2. The HJ (Iran) inquiry required the Tribunal first to consider whether the appellant was a devout Ahmadi, whether open preaching on return would expose him to persecution, and how he would in fact behave. If he would behave discreetly, the Tribunal had to determine the reason for that restraint.

3. The evidence showed that the appellant restricted distribution of his publications to people who were not dangerous. Read as a whole, the Immigration Judge’s findings supported the inference that he did this because wider publication would be dangerous. His more open preaching in Malta reinforced the conclusion that his activities in Pakistan were inhibited.

4. The appellant would probably continue to preach and publish cautiously on return. His preference for publishing research materials did not displace the finding that a material reason for his discretion would be fear of persecution if he published to persons who might be dangerous. He therefore fell within the principles of HJ (Iran).

5. The Tribunal also noted that any internal-relocation question would depend on the individual facts. Country guidance indicated that Rabwah was no safer than elsewhere in Pakistan for Ahmadis. In any event, the Secretary of State did not contend that internal relocation was reasonably available to this appellant.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on a material error of law and remade the decision by allowing the asylum appeal.

• Immigration Judge: Dismissed the appellant’s appeal on all grounds after finding that the risk on return fell below the level required for international protection.

• Permission to appeal: Permission was initially refused, but was later granted on the HJ (Iran) [2010] UKSC 31 point.