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Ahmadi asylum claims and the reasons for refusal letter

Asylum seekers individually make claims which may repeat elements that are, unsurprisingly, also found in the claims of other asylum seekers who flee from the same or very similar forms of harm and persecution. This does not mean the asylum claims are untrue or unfounded, simply that at particular times and for particular reasons many individuals may go through the same or very similar difficulties. Equally, as case owners and immigration judges start to deal with more cases which share many similarities they begin, while still required to keep in mind the specifics of each individual case, to reach more standardized and consistent decisions based on a shared body of knowledge. In this section I consider two of the standard reasons given in decisions to refuse asylum claims by Ahmadis and how each standard response, over time, was challenged and eventually recognized as problematic. The outcome of the challenges vindicated the position taken by the Ahmadi jama ‘at. Yet this has not meant that more Ahmadi asylum cases now succeed, as in the time that it took to challenge the most frequent reasons given for refusing asylum it has become much harder for Pakistani Ahmadis even to reach the UK to claim asylum.

During the six years ending in 2011, when I prepared country expert reports, there were two particularly common reasons regularly given by the Home Office for routinely rejecting asylum applications made by Ahmadis. The first was that the person applying for refugee status was not an ‘exceptional Ahmadi', by which the Home Office seems to have meant not a prominent proselytizer or high-ranking official within the jama ‘at. As such the Home Office simply assumed the ‘unexceptional Ahmadi’ could return to Pakistan, relocate to a part of the country

Asylum and the Ahmadi diaspora 143 where she or he had not previously experienced persecution, and by this means evade the risk of future harm or persecution. The second reason given for rejecting asylum claims was that Rabwah was a safe haven, a majority Ahmadi town in which Ahmadis can find refuge. In the cut-and-paste language so often found in the ‘Reasons for Refusal' letters sent to inform asylum seekers of their failed claims, one 2007 example reads:

  • 45. You have not claimed to be a prominent member of your local Ahmadi community, and have not claimed to be involved in any preaching or proselytizing.
  • 46. Therefore it is asserted you have related your alleged fear of return only to certain areas within Pakistan. Irrespective of any other comments regarding the merits of your claim, you do not qualify for recognition as a refugee. This is because there is a part of Pakistan, namely Rabweh [szc] in which you do not have a well-founded fear of persecution and to which it would be reasonable to expect you to go.

While this quote is taken from one particular ‘Reasons for Refusal’ letter, identical or nearly identical quotes could have been just as easily taken from many other cases for which I produced expert reports.

On the first point, that not being a prominent, high-profile or very active member of the community sufficiently diminished the likelihood of risk of persecution on return to Pakistan, the category and language of the ‘unexceptional’ Ahmadi became, over time, one of the elements taken into consideration in the decision making of the Asylum and Immigration Tribunal itself and was used by the Secretary of State to argue against the necessity of granting refugee status. In what follows, I set out some of the history and use of the term ‘exceptional Ahmadi’ and similar expressions through asylum appeals which fall into the class of cases known as country guidance cases.

Some asylum cases decided before immigration judges become country guidance cases when the immigration judges rule on matters that ‘are meant to establish authoritative assessments of objective or "background” evidence about countries of origin, in relation to issues which recur in numerous appeals’ (Yeo, cited in Good 2007:234). In principle, such country guidance should eliminate ‘variable or haphazard’ decision making, thus avoiding inconsistency in decision making by individual immigration judges (Good 2007:234). These country guidance cases, however, are not best understood as ‘factual precedents’ as ‘further evidence [can] show that the original decision was wrong or . . . expose other-issues which require examination’ (Good 2007:234). In short, the country guidance cases are meant to facilitate standardized decision making on matters which arise time after time in asylum hearings and stand until they are replaced by future country guidance rulings.

In a country guidance Determinations and Reasons document from 2005 ([2005] UKAIT 00033) which set out the decision of the Tribunal after hearing an appeal brought by the Secretary of State against an asylum seeker known as KK,

the term ‘unexceptional Ahmadi’ was defined as ‘a man who is of the Ahmadi faith' but:

  • (i) Has no record of active preaching and is not a person in respect of whom any finding has been made that there is a real risk that he will preach on return;
  • (ii) Has no particular profile in the Ahmadi faith;
  • (iii) Has no history of persecution or other ill-treatment in Pakistan related to his Ahmadi faith; and
  • (iv) Has no other particular feature to give any potential added risk to him (e.g. by being a convert to the Ahmadi faith).28

One senior Ahmadi, himself writing a country expert report on behalf of an Ahmadi asylum seeker in 2006, tried to explain the inadequacy of the ‘exceptional’ and ‘unexceptional’ categorizations as follows:

[W]ith the passage of time I have observed that certain misconceptions about the Community and its beliefs have emerged or have been invented by the decision makers in the UK in the absence of any formal representation from the Community and or the experts e.g. ‘exceptional Ahmadi’, ‘unexceptional Ahmadi’, ‘ordinary Ahmadi’, ‘publicly preaching Ahmadi’ and ‘low level or high level preaching Ahmadi’ including all level of authority in Rabwah. I therefore, find it essential to clarify and rebut such notions of the decision makers and bring into the light the real state of facts on the ground, only for advancing the interests of justice, fairness and without any allegiance to any particular person or body whatsoever as an expert in this area to assist the court only.

(emphasis in original)29

The report writer elaborates further on this matter later in the report:

Anti-Ahmadi legislation only requires an Ahmadi to be accused of preaching and or posing like a Muslim ‘directly or indirectly’. He needs not to be a qualified preacher or of a high profile or with any other qualification. The rest of blasphemy penal provisions follow the same pattern, hence in order for an Ahmadi, in Pakistan, to be caught by these widely drafted statutory provisions it is not important:

  • • To whom he preaches, whether to outsiders or Ahmadis;
  • • Where he preaches, whether openly in public places or discreetly behind closed doors including showing sermons on the Muslim Television Ahmadiyya;
  • • The level and extent of preaching;
  • • His visibility to those outside his faith or to hostile elements; and
  • • His knowledge, qualification and status in the religion or the society.

Hence an Ahmadi could be targeted without any of the reasons but simply by malicious allegations triggered by the fanatic hatred, personal rivalry and jealousy of the opponent.

It appears, however, that this was not at the time a sufficiently convincing argument as the distinction made in the UK between 'exceptional' and 'unexceptional' Ahmadis continued to be used by the Secretary of State to limit the number of Ahmadi asylum seekers granted refugee status over the coming few years. The matter of the usefulness of the 'exceptional Ahmadi’ category was finally raised in a country guidance case in 2008, (UKAIT 00033) in terms that begin to align with the understanding of the Alunadi expert report writer cited above:

86. The Secretary of State accepted that the concept of the 'unexceptional Ahmadi' in KK was no longer a useful test. Analysis of the position of Ahmadis in Pakistan had been complicated by the ‘preaching’ test which both representatives and the Tribunal now agreed was an unhelpful way of viewing a wider obligation to propagate the Ahmadi faith (da’wa). Similarly, the evidence did not support a finding that occupying one of the Ahmadi community roles such as Nazim, Motamid, Sardar, or being a Quddam was risk-free. Each case would turn on the risk factors for the individual Ahmadi and his profile with Khatme Nabuwwat or other potential persecutors.

And yet, despite this, in another country guidance case in 2012 dealing with a number of individual applications for asylum,30 the distinction between ‘exceptional’ versus ‘unexceptional’ Ahmadi was once again raised by the representative for the Secretary of State because the Ahmadis seeking asylum had been targeted for persecution on account of their busmess or work. The Secretary of State's representative further stated that distinctions could be made to discern whether or not a person’s faith and demonstration of this faith was a ‘core’ or ‘peripheral’ aspect of a person’s identity, taking the position that only those Ahmadis for whom it could be demonstrated that their faith and their practice of faith were core to then- identity should be considered for refugee status. Some of the lawyer’s representing the Ahmadis appealing against the refusals of their asylum applications, however, disagreed and argued that:

Attempting to divide Ahmadis into categories of ordinary and exceptional or proselytising and quiet misses the point and is legally flawed. The Tribunal should be cautious of questioning the importance to Ahmadis of calling themselves Muslim or calling their mosques ‘mosques’, using the azan and similar. There is no authority or support for the Secretary of State’s distinction between core and peripheral aspects of a religious faith or the practice of a religion and the Tribunal should reject this proposed approach.

(paragraph 276 [iv])31

Ultimately in 2012, the countiy guidance recognized that, for Ahmadis, legislation in Pakistan not only prohibits 'preaching and other forms of proselytizing but also in practice restricts other elements of manifesting one’s religious beliefs, such as holding open discourse about religion with non-Ahmadis, although not amounting to proselytizing' (paragraph 119 [iv]).32 The country guidance also accepted that if:

an Ahmadi is able to demonstrate ... it is of particular importance to his religious identity to practice and manifest his faith openly in Pakistan in defiance of the restrictions in the Pakistan Penal Code (PPC) under sections 298B and 298C, ... he or she is likely to be in need of protection, in the light of the serious nature of the sanctions that potentially apply as well as the risk of prosecution under section 295C for blasphemy.

(paragraph 12O[i])33

Further, such Ahmadis were not to be expected to curtail or hide their religion, or any desire to openly manifest it, to avoid ‘a risk of prosecution’ in Pakistan. This still allowed for those Ahmadis who did not practice their faith or who did so on a restricted basis, and who could not demonstrate to the satisfaction of an immigration tribunal that on return to Pakistan they would ‘practise and manifest their faith openly’, to be unlikely to be granted refugee status. Crucially, however, the 2012 country guidance also recognized that even if a person was not likely to manifest her or his faith actively and openly in Pakistan, such a person might nonetheless be in need of international protection if ‘that person would nevertheless be reasonably likely to be targeted by non-state actors on return for religious persecution by reason of his/her prominent social and/or business profile’ (paragraph 127).

Additionally, the tribunal recognized, in its judgments in some of the appeals it heard, that while it considered Ahmadi women in general not to be at particular or additional risk qua women, it did accept that they might, like men, preach and manifest their faith but, because of the gender norms in place in Pakistan, in ways that were distinct, and often more private and low key than men. This was not taken as evidence of a lesser risk of persecution on return or of a lesser right to international protection. In effect, the country guidance in 2012 came round to the position that the Ahmadis themselves had long argued and which at least one of them had included in the 2006 expert report quoted earlier.

The matter of Ahmadi rights to asylum on the basis of persecution on grounds of faith and lack of internal relocation options in Pakistan, however, was not settled once and for all in 2012. A submission to the All Party Parliamentary Group (APPG-UK) in 2015 by the Ahmadi Human Rights Group, the Human Rights Committee, noted:

From the information we have and according to reports we receive from other organisations and individuals, particularly those claiming asylum, the guidelines set out in MN [2012 Country Guidance Case] are not being followed and cases are being pushed down the Tabligh (preaching route). All too often there is a general pattern of refusing cases due to adverse credibility when the circumstances are not fully appreciated, the situation of Ahmadis in Pakistan, MN not being followed and not fully considering the evidence of the Ahmadiyya Muslim Association UK.34

The country guidance case of 2012 has also had limited application because the absolute number of Ahmadis who have entered the UK as asylum seekers in recent years is so small. One estimate from a well-placed Ahmadi officeholder put the number of Ahmadi asylum seekers from 1984 to April 2018 at about 6,900, or just over 200 per annum, of whom approximately 80% became refugees, while the remainder were either deported or fled to another country.35 It has in fact become increasingly difficult in recent years to even get to the UK for a variety of reasons, including the 'upstream' delegation of border entry surveillance to airline staff. This delegation of immigration control to airline staff has led to a situation in which:

much of the UK's immigration control is in practice carried out by private carriers such as airlines and security companies contracted by airlines and other carriers. The threat of carrier sanctions on private companies, including a £2000 fine per improperly documented passenger brought to the UK, means that individuals suspected of intending to claim asylum in the UK are classified as a threat and therefore likely to be refused boarding. Identification of such risky passengers is based on little more than ad hoc profiling by carriers, and the use of 'gut feeling' to intercept individuals suspected of travelling irregularly or of intending to destroy then travel documents before arriving in the UK.

(Reynolds and Muggeridge 2008:5)36

As a consequence of this, today’s Pakistani Ahmadi asylum seekers are more likely to find their way to Sri Lanka, China, Thailand and Malaysia, countries where living conditions are poor and it can take three to five years for cases to be processed. As of 2015, according to the AMA, no Ahmadi in these countries had been resettled in the UK despite provision for this through the Gateway and Mandate Schemes.37 The former scheme was launched in 2004 to resettle 750 persons per annum who had found themselves in protracted refugee situations, and the latter was launched in 1995 to permit the resettlement of refugees with close family members in the UK (UNHCR 2018).

While the country guidance of 2012 may in practice help relatively few Ahmadi asylum seekers to resettle in the UK, there may nonetheless be other ways in which such country guidance can serve the Ahmadi community’s broader goals. In addition to the rulings on Ahmadis who openly practice their faith, or who may be targeted by non-state actors for reasons which may have to do with the prominence of an individual because of their business or other secular positions held, another significant ruling in the 2012 country guidance, at paragraph 124, states:

The option of internal relocation, previously considered to be available in Rabwah, is not in general reasonably open to a claimant who genuinely wishes to engage in paragraph 2(i) [i.e. preaching, proselytizing or openly practicing their faith] behaviour, in the light of the nationwide effect in Pakistan of the anti-Ahmadi legislation.

This too was a finding that Ahmadis had long campaigned for but which I discuss in the following paragraphs in relation to another aspect of how the Ahmadi jama ‘at keeps the issue of persecution in Pakistan an active and publicly debated one in the UK. In this case, the work of the jama ‘at is not limited to dealings with the Home Office and the immigration services for the benefit of Ahmadi asylum seekers; it is also more broadly conceived as a means, by influencing the British government and British government policy with regards to Pakistan, to influence and encourage the government of Pakistan to ameliorate the conditions for Ahmadis who live in Pakistan. This strategy of discrete intervention takes two forms: the funding of independent human rights reports and participation in parliamentary debates about the situation of the Ahmadis in Pakistan and the UK. Though the reports and the debates are independent of each other, they are part of a coordinated effort to raise awareness of the Ahmadi cause, with the reports to some extent also providing an information resource for the debates.

 
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