KB & Anor v The Secretary of State for the Home Department

1. In this decision we seek to say a few things aimed at promoting a more structured approach to evidence and credibility assessment.

2. The appellants are nationals of Pakistan born in 1950 and 1979 respectively and are of the Ahmadi faith. The first appellant is the second appellant’s son. Five days after arrival in the UK on visit visas on 14 December 2014, t he y made an application for asylum and humanitarian protection . The basis of their case has always been that they are both committed Ahmadis who fled Pakistan following an incident in December 2014 when members of Khatme Nabuwa h t damaged the first appellant’s shop in Rawlapindi and made threats to harm him. When he and the local branch president of the Ahmadi community went to the police to report the incident the latter showed no interest. He and his mother left for the UK three days later. On 17 June 2015, the respondent accepted that they were Ahmadis but refused their applications . Their appeals came before First-tier Tribunal (FtT) Judge Oakley who on 6 November 2015 dismissed their appeals. On 21 March 2016 Deputy Upper Tribunal Judge (DUTJ) Sheridan set aside Judge Oakley’s decision for error of law and remitted it to the FtT. On 13 October 2016 FtT Judge E B Grant again dism issed their appeal s , but that decision too was set aside by Upper Tribunal Judge (UTT) O’Connor on 3 February 2017 with a direction that it should be re-made in the Upper Tribunal.

3. Before UTJ O’Connor, Mr Frip p requested that the case proceed as a vehicle for further country guidance on Ahmadis. UTJ O’Connor gave him permission to draw up a note in support of his position. Subsequently, on consideration of that note, the Upper Tribunal decided that the case should not proceed as potential country guidance.

4. At the hearing Mr Fripp called three witnesses , Mr Mansoor Shah, Vice President of the Ahmadiyaa Muslim Association UK (AMAUK), the first appellant and Mr A B, a relative of the appellants. Th e Tribunal had already been informed that the second appellant would not attend to give oral evidence as she was unwell. The evidence of the three witnesses is summarised in Appendix A. Oral s ubmissions

5. Mr Wilding said the appellants’ case turned in large part on their credibility. If they were not credible, that was the end of it . If they were credible about the shop incident, but not about the causes of it, the y would not be at risk on retur n because the shop incident could not be differentiated from an ordinary criminal incident. If however, we believed the shop incident and that it was religiously motivated then they were entitled to succeed in their appeals, as, given their evidence, they would fall within the terms of the country guidance given by the Tribunal in MN and others (Ahmadis - country conditions - risk ) CG [2012] UKUT 00389 (IAC) . (For convenience the headnote to MN is reproduced in Appendix B.)

6. Mr Wilding submitted that we should find the appellants not credible because it was im plausible that if the first appellant and his local branch president had gone to the police station in December 2014 to report the attack they would have left after only an hour of waiting. Nor was it plausible that within three days he and his mother would have left Pakistan in response to the incident leaving his wife and children behind .

7. Mr Wilding submitted that e ven if we accepted the shop incident happen ed , the first appellant had not established it was a religiously motivated attack. Even though t he first appellant was in the shop at the time , nothing happened to him. The evide nce of the AMAUK made clear their procedure s relied very much on self-report ing. There was only limited f iltering of people who asked for reports and there was no monitoring of whether attacks / incidents were religiously motivated. It was just as likely the shop incident was an ordinary criminal matter. The first appellant’s evidence was that there were K h atme Nabuwa h t posters in a number of places around the area.

8. Mr Wilding asked that we count against the appellants that de sp ite claiming to leave Pakistan within three days of the incident, the appellants had not claimed asylum on arrival. The significance of the first appellant’s answers to questions asked of him about why he had left his wife and children behind was not his failure to try and sponsor them, but the dubious lack of concern it showed about their circumstances. They were still living close by in the same area.

9. Even if we found the appellants were at risk in their home area , when assessing internal relocation we should attach weight to the fact that his own wife and children still lived nearby without it being suggested they were at risk.

10. Mr Wilding clarified that t he appellants’ case was not one about whether return would require them to suppress their religious orientation , since, on their own evidence , they had not hidden their Ahmadi identity and activities when in Pakistan .

11. As regards the reference by Mr Fripp in his written skeleton argument to “five general points” (see below paragraph 20) , he broadly accepted them except that he conceded that the guidance by the Tribunal in MN about the “ particular importance ” of Ahmadi faith to individuals was simply to be given its ordinary meaning . As regards Ahmadi women and children , whilst their situation might cause them to face extra difficulties (e.g. in not being able to undertake communal worship ) their cases would turn on particular facts. There was not a heightened risk in every case.

12. In reply to questions from the bench , Mr Wilding said he accepted that the first appellant had given a consistent account and that he raised no challenge either as to the sufficiency of detail of his account . The respondent’s challenge was purely to plausibility. Mr Wilding said that if the Tribunal found the appellants were telling the truth about the shop incident and it was satisfied that the attack was religiously motivated , then the appellants w ere entitled to succeed.

13. Mr Fripp submitted that the appellants’ account was credible. The first appellant’s account of the incident in his shop as the culmination of years of threats and harassment was consistent with the objective evidence regarding the situation of Ahmadis in Rawalpindi and elsewhere in Pakistan . Non-state actors such as Khatme Nabuwa h t conducted a widescale and highly organised campaign against Ahmadis with the compli ci ty of the state. The appellants ’ case sought to rely squarely on existing country guidance as set out in MN whose principal findings were encapsulated in the statement that Ahmadis were “ an oppressed religious minority ” .

14. As regards credibility, the AMAUK evidence lent support to the appellants’ case in relation to the appellants’ level of engagement with the Ahmadi community. The first appellant held substantial office in his local Ahmadi community in Pakistan over a number of years. The evidence described him as an active member of the Ahmadi community committed to his faith , someone who was both a ‘ Musi ’ (teacher) and a ‘ Quaid ’ (leader) . That evidence also went to explain why he had come to the adverse attention of the m alvis . The AMAUK evidence regarding the first appellant was singular in that the report produced did not just state what the local president had been told; it said he had accompanied the first appellant to the police station to report the incident. This show ed that the local branch took the matter seriously. The difficulties the first appellant encountered in getting police protection were corroborated by the UNHCR Eligibility Guidelines for Assessing the Protection Needs of Members of religious Minorities from Pakistan , January 2017. Viewed in the context of there being a pattern of ineffective police protection of Ahmadis in Pakistan , the fact that the first appellant and the local branch president left the police station after an hour before any report was formally recorded was entirely plausible. Another feature of the first appellant’s account was that it was not exaggerated; he did not say violence had been inflicted on his person.

15. Mr Fripp urged the Tribunal not to accept Mr Wilding’s submission that it was implausible the first appellant would have left Pakistan leaving his wife and children behind yet taking his mother. The fact was he and his mother were the only ones who had visas. Additionally, once the two appellants came to the UK and claimed asylum there was no basis whilst their claims were pending on which a visa for his wife and children could have been applied for: the advice they obtained was correct.

16. As for Mr Wilding’s scepticism about the causes of the shop incident , it was appropriate to recall what was said by Lord Hoffman in Shah and Islam [1999] UKHL 20 about Jewish shopkeepers in Nazi Germany: one had to look at the surrounding circumstances and not simply focus on the incident itself.

17. Mr Fripp said that even though t he second appellant had not given evidence because of health difficulties , her previous written and oral evidence was consistent with what is known about the situation faced by Ahmadi women, unable to practise her faith commun ally because the Ahmadi community had forbidden it as a protective measure . The second appellant was also relatively elderly and in poor health .

18. Asked by the bench what response he had to Mr Wilding’s submission that the appellants had a viable internal relocation alternative , Mr Fripp said he relied on what was said in MN about the nationwide pattern of hostilities towards Ahmadis. In this regard the first appellant’s profile as an active Ahmadi was also relevant; he could not be expected to conceal his Ahmadi practices. The evidence 19 . Bearing in mind that this case has been before the Upper Tribunal once before, it is salient to note that we had a very considerable body of written evidence before us. In addition to the witness statement s of the appellants, and the various reports from AMAUK (enumerated in Appendix A to this decision ) t here were a number of copy photographs showing what was said to be the damage done to the first appellan t’s shop in December 2014 and what are said to be the posters put up by the Khatme Nabuwa h t on the first appellant’s shop over the relevant period .