WA (Pakistan) v The Secretary of State for the Home Department

In an Ahmadi asylum claim, the decision-maker must determine how the claimant would behave on return. If the claimant would avoid religious conduct which would attract persecution, the decision-maker must ask why. A material reason being fear of persecution is sufficient, even where other motives exist. The claimant need not show that public religious expression is of particular importance, and the assessment must not turn on how much restriction the claimant would tolerate. The principle applies to moderate as well as zealous believers. A tribunal that rejects the claimant’s stated intention must still examine the reasons for alternative behaviour where its own findings imply that the claimant would avoid persecutory conduct. Country guidance requiring a particular-importance showing, or omitting the why inquiry, is misleading to that extent.

The appellant, a Pakistani Ahmadi, had practised his faith in the United Kingdom and claimed that he would preach openly if returned to Pakistan. The First-tier Tribunal accepted that he was an Ahmadi and practised in the United Kingdom, but rejected his claimed intention to preach openly and dismissed his asylum and article 3 claims. The Upper Tribunal dismissed his appeal.

On appeal, the appellant argued that the First-tier Tribunal had failed to apply the why inquiry required by HJ (Iran) and that the country guidance in MN was inconsistent with that approach. The respondent argued that the why inquiry did not arise because the appellant had expressly claimed that he would preach, and that the amended grounds were too late. The central issue was whether the Tribunal had to consider why the appellant would avoid persecutory religious conduct once that alternative behaviour was inferred from its own findings.

The appeal was allowed. The amended grounds were permitted, the decision of the Upper Tribunal was quashed, and the matter was remitted to the First-tier Tribunal for rehearing. The Court gave no indication of the outcome that should follow.

1. Applicable approach. The approach in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596 applies to religious as well as sexual-orientation claims. The decision-maker should ask whether the claimant is genuinely an Ahmadi, how the claimant would behave on return, and, if the claimant would avoid conduct attracting persecution, why that would occur. If fear of persecution is a material reason, the claimant is likely to have a valid asylum claim, even where other motives are present.
2. The requirement in MN and others (Ahmadis – country conditions – risk) Pakistan CG [2012] UKUT 00389 (IAC) that open practice be of particular importance to the claimant’s religious identity was inconsistent with HJ (Iran). The assessment must not turn on the degree to which the claimant would tolerate a restriction. The proposed activity may assist in determining whether its prohibition amounts to persecution, but willingness to endure the restriction is not decisive.
3. Following RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38; [2013] 1 AC 152, protection does not depend on the intensity of religious commitment. A moderate Ahmadi may be protected where persecution would suppress otherwise public religious practice. Restrictions which fall well short of persecution remain capable of being lawful, and where a person is indifferent to public religious expression it may be difficult to show that fear materially affects practice.
4. The First-tier Tribunal rejected the appellant’s express case but then relied on inferred conclusions that he would behave pragmatically and avoid serious risk. That made the why inquiry arise. The respondent’s general submission that a tribunal need not formulate wholly unadvanced alternatives was correct, but it did not answer a case in which the tribunal itself inferred the alternative behaviour.

The relevant country guidance was therefore misleading and should not be followed to that extent. The rehearing must apply the guidance stated in this judgment. The Court also stressed that procedural requirements and focused grounds remain necessary in asylum appeals, while permitting the late amendment because the central legal issue had been clear and the respondent had been on notice of it.

• Court of Appeal (Civil Division) allowed the appeal, quashed the Upper Tribunal’s decision and remitted the matter to the First-tier Tribunal for rehearing.
• Upper Tribunal (Immigration and Asylum Chamber), Deputy Upper Tribunal Judge Hill QC, dismissed the appeal on 20 August 2015.
• First-tier Tribunal, Judge Aujla, dismissed the asylum and article 3 claims in a decision promulgated on 12 January 2015.