R v. Secretary of State for the Home Department, Ex parte Kazmi

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	27 September 1993
Citation / Document Symbol	[1994] Imm AR 94
Cite as	R v. Secretary of State for the Home Department, Ex parte Kazmi, [1994] Imm AR 94, United Kingdom: High Court (England and Wales), 27 September 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b683c.html [accessed 20 October 2022]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte KAZMI

Queen's Bench Division

[1994] Imm AR 94

Hearing

27 September 1993

Index Terms:

Political asylum -- citizen of Pakistan -- Muslim -- converted to Christianity -- refusal by Secretary of State to grant political asylum -- special risks run by those who converted to Christianity from Islam -- whether Secretary of State's decision reasonable on the evidence before him.

Judicial review -- evidence on which Secretary of State based decision challenged by additional expert evidence before the court but not before Secretary of State -- what evidence the court might take into account in a review of Secretary of State's decision.

Held:

The applicant seeking leave to move for judicial review of the Secretary of State's refusal to grant him political asylum was a citizen of Pakistan, a Muslim who had converted to Christianity. It was asserted by counsel that the Secretary of State had failed to recognize the particular risks faced by those who converted to Christianity in Pakistan and were regarded as apostates.

The Secretary of State had relied on an expert opinion which he had obtained. There was before the court another expert opinion which challenged the conclusions of the report on which the Secretary of State had in part relied, but that late evidence had not been before the Secretary of State. The court set out its approach to such evidence.

Held

1. On the evidence before him the Secretary of State's decision could not be challenged on Wednesbury principles.

2. The court, in reviewing the Secretary of State's decision, was restricted to considering the evidence that had been before him.

Counsel:

A Collins QC and V Kothari for the applicant; R Jay for the respondent

PANEL: Laws J

Judgment One:

LAWS J: This is an application for leave to move for judicial review in relation to a decision by the Secretary of State for the Home Department to refuse political asylum to the applicant. The applicant is a convert to Christianity from Islam. He comes from Pakistan. He is also a member of the

Qayyum group of the Pakistani Muslim League, an organisation said not to find favour with elements in Pakistan, including, perhaps, the authorities.

His last arrival in the United Kingdom was in July 1992, and on 21 July he was interviewed upon the political asylum claim which he then put forward. At first the Home Office did not accept that he was a genuine convert, but that is now acknowledged. There was what has become known as the "minded to refuse letter" given in April 1993. The Secretary of State rejected the claim based upon the applicant's political affiliation. Amongst other things he said:

"On the basis of his general knowledge of the situation in Pakistan, the Secretary of State has no reason to believe that, if charges are outstanding against you, you would not receive a fair trial before Pakistan's independent and properly constituted judiciary".

There is some question as to whether there was a confusion or misunderstanding as to whether the applicant had actually asserted that charges were outstanding against him. In all events, the Secretary of State was making a judgment as to the likelihood of a fair trial in Pakistan, were proceedings to be brought.

The letter goes on to deal with the claim based upon the applicant's conversion to Christianity, and the Secretary of State says:

"With regard to your claim that you fear to return to Pakistan because of your conversion to Christianity and Dr Deans's contention . . ."

I interpolate that Dr Dean had made representations on the applicant's behalf --

". . . that Christians in general are a persecuted group in Pakistan, the Secretary of State is aware that Christians in common with other specified religious groups, have been discriminated against through amendments of the Pakistan penal code associated with the 'Islamisation' of the Islamic Republic of Pakistan over recent years. It is his understanding, however, that again in common with other minority religious groups, Christians are formally recognised as a religious minority and in common with the other minority groups are granted certain rights under the Constitution, including guaranteed representation in the National Assembly. Furthermore, the discretionary provisions of Ordinance XX of April 1984, and the Criminal Law (Amendment) Act 1986, the two relevant amendments referred to above, have not been rigorously or generally enforced and Christians are in general free to practice their religion without harassment from the authorities or other groups in Pakistan. Having considered all the available evidence, the Secretary of State does not consider that merely being a practising Christian in Pakistan gives a claim to refugee status under the 1951 United Nations Convention relating to the Status of Refugees. The Secretary of State also notes returning to Pakistan in April 1992 although you were already a Christian at that time."

Mr Collins on the applicant's behalf says that this reasoning fails altogether to focus on the crucial fact that the applicant is not merely a Christian, but a convert from Islam. The importance of this rests in certain aspects of the case concerned with Islamic and Pakistani law, first among which is the fact that apostasy is punishable by death under Islamic law, as it seems all the experts are agreed. Mr Collins also submits that the Secretary of

State was wrong to have compartmentalised his response to the political aspect of the claim with this response to that based on the applicant's conversion, since, he says, if this man has political enemies they may seek with the connivance of the authorities to deploy laws relating to apostasy against the applicant, knowing, as they would, of his conversion to Christianity.

The "minded to refuse letter" was later followed by a final letter in which the claim was refused on 22 June 1993. By that date, further representations had been made on the applicant's behalf by Dr Dean, who attended a meeting with officials. In the letter of refusal, referring to this meeting, the Secretary of State said:

"In the course of this meeting, Dr Dean reiterated his belief that Christians, and especially people who have converted to Christianity, are persecuted in Pakistan. He went on to describe the cases of Tahir Iqbal, Neimet Ahmer and Gul Masih which he has specifically chosen to illustrate his contention."

Later in the letter the Secretary of State said:

"Turning to your particular case, Dr Dean said that if, on your return to Pakistan, you were to be involved in a disagreement with a Muslim, as Gul Masih had been, and if this Muslim were to go to the police and falsely accuse you of blasphemy, and if the police were to decide to take action against you and the courts were then to find you guilty, you could face the death penalty in Pakistan."

Later:

"The Secretary of State has carefully considered your response to his letter of 8 April, and the further representations which Dr Dean has submitted on your behalf. However, he does not consider that these add substantially to your claim for asylum.

As the letter of 8 April explained, although there is no definition of persecution in the 1951 United Nations Convention relating to the Status of Refugees, the expectation is that the term normally relates to action by the authorities of the country concerned. The Secretary of State accepts that instances of discrimination against individual Christians by Muslims in Pakistan have occurred and he is aware that some Christians have even been attacked.

However, having considered all the available evidence, the Secretary of State has no reason to believe that such attacks are commonplace. Neither has he any reason to believe that they are either encouraged or sanctioned by the Pakistan authorities. The Secretary of State notes also that about 1.3% of the population of Pakistan are Christians. He is satisfied that, for the most part, they are able to practice their faith without any problems and that it is only a very small number who experience difficulties at the hands of, again, a very small number of individual Muslims."

And so the Secretary of State rejected the application. The matter did not, however, stop there. The applicant put before the Secretary of State an affidavit from an expert, Dr Doreen Hinchcliffe. This sets out her specialised views upon aspects of Islamic and Pakistani law. It seems clear, as I have said, that apostasy, as such, is punishable by death under Islamic law. There is however no specific provision in the law of Pakistan having this effect; but Dr Hinchcliffe referred to a provision introduced in the Pakistani Penal Code 1986: that is paragraph 295C. It is in these terms:

"Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly defiles the sacred name of the . . . Prophet Mohammed (peace and [blessings] upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine."

There was much debate in the material before me as to the availability of this alternative of life imprisonment. There is some material to show that that has been deleted as an option under section 295C, and the legal arrangements which have produced that result may perhaps be shrouded in some degree of doubt. However, as I understand both parties to agree, it is of no materia1ity whether the potential punishment is death or imprisonment. If a person be at risk of either for a Convention reason, then a real risk of persecution would be made out. Therefore, I need not say any more about that aspect of the case.

In her affidavit, however, Dr Hinchcliffe continued in this way from paragraph 15 onwards:

"A convert from Islam to Christianity would, in my belief, attract the provisions of Section 295C of the Penal Code.

16. A Muslim who embraces Christianity is renouncing the role of Mohammed as the Messenger of God through whom God's role is revealed. In accepting the concept of the Trinity, he is rejecting the role of Mohammed who for Muslims is the last of the Prophets and of superior status to Christ.

17. I believe that this would of itself be construed by a Court in Pakistan as being an offence under S295C of the Penal code and would result in the imposition of the death sentence."

The Secretary of State, faced with this material, reconsidered the case. He wrote a further letter on 29 July 1993 in which he said, after referring to the application for asylum itself of his earlier refusal:

"I also refer to the new material and, in particular, to the affidavit of Dr Doreen Hinchcliffe, which you have submitted on behalf of your client as giving a thorough and up to date description of Pakistan law as it affects those who offend against or renounce Islam.

Dr Hinchcliffe's affidavit is an impressive and comprehensive treatment of the topic, and is a valuable contribution to its study, but the Secretary of State notes that, so far as recent developments in Pakistani statute and case law are concerned (and it is those to which the Secretary of State must primarily have regard, rather than to traditional Islamic jurisprudence), the affidavit broadly confirms the position already established in correspondence."

A little later:

"The Secretary of State was aware in his earlier consideration of your client's case of the effect of section 295C incorporated in the Pakistan Penal Code in 1986 referred to by Dr Hinchcliffe in paragraph 11 of her affidavit."

The letter then goes on to refer to other material, particularly the case of Gul Masih, which had been referred to earlier. That is a case in which that defendant was sentenced to death for an offence under section 295C. It is not clear what the facts were or how similar, if at all, they were to those of this applicant. It is also right to say, as I understand it, that his conviction is presently under appeal to the High Court of Lahore.

In that letter of 29 July, the Secretary of State continued on page 2:

"The Secretary of State is aware of only one case of a person charged under section 295C who has been sentenced to death: that is the case of Gul Masih (who was sentenced on November 1990) . . ."

It then refers to the fact that the case is awaiting appeal. He continues:

"I pointed out above that your client had not in fact been charged under section 295C, and although it is of course accepted by the Secretary of State that the existence of draconian provisions may give rise to a well founded fear of persecution, it is also necessary to consider how those provisions are being applied and how they are perceived by the individual. The Secretary of State accepts that there has been an increase in Muslim fundamentalism in Pakistan, and this has led to an increase in discrimination against adherents of other religions and some isolated instances of violence, as well as three or four prosecutions of Christians under section 295. However, the Secretary of State is not aware of any case since the new offence was created in 1986, where criminal proceedings have been brought under section 295C on the grounds that the person concerned has converted from Islam and he remains satisfied that neither adherents of minority religions generally nor Christians in particular can properly be described as persecuted groups in present Pakistani society.

Moreover, the Secretary of State also contends that evidence as to an applicant's subjective perception of conditions in the country from which he seeks asylum is significant and is something to which he is entitled to have regard, and in that connection the Secretary of State notes Dr Hinchcliffe's observation that conversion to Christianity has long been regarded in Sharia law as apostasy, punishable by death."

He then recites certain facts as he apprehended them, relating to the applicant himself, so as to reach the conclusion stated on the last page:

". . . [he] does not accept that your client subjectively perceived this conversion as placing him at risk of persecution in Pakistan (although this is not the test that the Secretary of State must meet), either on the basis of the official legal position, or of anti-Christian feeling in the community (which the Secretary of State acknowledges can give rise to a fear of persecution). In that connection the Secretary of State notes that, in order to corroborate the fact of his conversion, your client has produced letters from Christian organisations in Pakistan which suggests that they continue to function normally."

He concludes the letter by upholding his earlier refusal of asylum. In this letter, as can be seen, there is express consideration of the circumstances of the applicant's conversion. However, the Secretary of State also obtained his own expert opinion from Professor David Pearl. That opinion is before me, as it was before the Secretary of State. In it Professor Pearl says:

"7. There is no provision of Pakistan law which, in express terms, has made apostasy from Islam a criminal offence. (Para 8 of Dr Hinchcliffe's affidavit).

However, s 295C of the Penal Code has been used in a few cases against Muslim apostates who have converted to Christianity. I know of no cases other than those already mentioned in the papers I have seen, including the Masih case, where such prosecutions have been brought against Christians who were formerly Muslim.

There is then further discussion of section 295C, and the opinion continues at paragraph 21 in this way:

"One matter is entirely clear, and that is that the Federal Shariat Court has no power to make new law. Thus, until laws against apostasy are made by the legislature or the executive, there is no law against apostasy -- even if the Federal Shariat Court stated, which they have not, that there should be such a law. Section 295C of course does not deal with apostasy as such, and on this one issue I have a different view to the one expressed by Dr Hinchcliffe in paragraphs 15 to 17 . . .

"22. The discussion is of course of a technical nature. I have been asked for my personal assessment of the 'religious and secular climate' in Pakistan. It is well known that Pakistan has been going through a process of Islamicisation, and this process is far from being completed at the present time. The fundamentalist parties are extremely powerful and all political initiatives inevitably must be influenced to some extent by the reactions of these groups. However, there is a sizeable Christian minority in Pakistan and I agree with IND [this of course is the Immigration and Nationality Department] that Christians are not persecuted in present Pakistan society."

In the next paragraph:

"Converts to Christianity from Islam, however, do face particular difficulties. They are of course apostates from Islam. Although apostasy is not an offence under section 295C unless the convert openly defiles the name of Mohammed, it is my view that a Muslim apostate who has converted to Christianity would have to be particularly sensitive to the risk of offending the Muslim neighbours, and I can well see that relatives and others would be offended merely by the conversion itself. It is important to remember, however, that Jesus is a Prophet of Islam, and it would only be by defiling Mohammed rather than by espousing Jesus that an offence under section 295C would be committed."

One can see that the expert there had advised that apostasy itself from Islam to Christianity did not fall within the terms of section 295C of the Pakistani Penal Code, although an apostate might be prosecuted under that section, or steps might be taken to move against him under that section, if in addition to his apostasy he did something that was regarded as defiling the name of Mohammed.

The Secretary of State clearly attached importance to this opinion, because he wrote a supplementary letter on 13 September 1993 in which he says, having referred to his decision to obtain further advice of his own, this:

"Professor Pearl's opinion has been carefully considered by the Secretary of State together with the other evidence in this case. In the light of this opinion, the Secretary of State is reinforced in his view expressed in my letter of 29 July 1993 that your client does not have a well-founded fear of persecution in Pakistan."

That is the last document in the relevant decision-making process by the Secretary of State. Mr Collins has put before me, although it was not before the Secretary of State, a further opinion from Mr Martin Lau. Mr Lau gives chapter and verse of a case where a convert has been prosecuted under section 295C, and, according to Mr Lau's opinion, that convert was in those proceedings refused bail twice. Mr Lau quotes the decision of the court in question in these terms:

"2. Allegation as contained in the FIR . . ." -- that is something called the First Information Report "is that Tahir Iqbal petitioner originally a Muslim has converted into Christianity and he is allegedly using sacrilegious language and making derogatory remarks against Islam.

3. Learned counsel for the petitioner has concede [sic] before me that the petitioner has converted himself as Christian. With this admission on the part of the petitioner's counsel, there is no need to probe further into the allegations as contained in the FIR because learned DDA [that must be the prosecutor] has disclosed that charge has already been framed by the Ilaqa Magistrate and the accused is facing trial. Since conversion from Islam into Christianity is in itself a cognizable offence involving serious implications, hence I do not consider the petitioner entitled to the concession of bail at this stage."

The opinion goes on to say that bail was refused a second time on identical grounds.

Mr Collins has also shown me an article entitled "Islam and the Courts", voicing concerns as to the prosecution of non-Muslims in circumstances where the death penalty may be imposed.

In deciding whether to grant leave, I must bear three considerations in mind. First, this being a leave application, Mr Collins needs only establish an arguable case. Second, it is a case where to use Lord Bridge's words:

"The Court will examine the Secretary of State's decision-making process with the most anxious scrutiny since it concerns the applicant's fundamental rights."

Thirdly, the application for leave has to be considered on and only upon the material before the Secretary of State.

Mr Collins' essential case is that the Secretary of State has never given proper consideration to the fact of the applicant's conversion, rather than his Christianity simpliciter. It is his conversion, says Mr Collins, that brings with it the risk of prosecution ultimately for apostasy through the medium of section 295C. Had the matter stood as it had been at the stage of the minded to refuse letter, I would have accepted this submission. However, in the letter which followed it, it is clear to me that the Secretary of State was fully aware that the question of the applicant's conversion was the primary consideration being put forward for him to assess. He took his own advice about it and obtained Professor Pearl's opinion.

It is, in my judgment. impossible to argue that the Secretary of State has not approached the case on the footing that what was required of him was an assessment of the material before him based on the risks, if any, to the applicant as a convert.

However, I understand Mr Collins also to submit that even if the Secretary of State has approached the case on this basis, he could not reasonably have concluded its merits against the applicant. There was, I think, a half-spoken submission that the Secretary of State has come to the case with a preformed scepticism against the applicant. I do not think this is arguably made out.

On the material before me, the Secretary of State by the date of his final letter had arrived at a view which, (whether or not I, or Mr Collins, agree with it), was a view at which he was entitled to arrive. I have not forgotten Mr Collins' submissions based on what he called "the Secretary of State's compartmentalisation of the two issues" put forward for his consideration by the applicant. I do not read any of the letters as indicating that the Secretary of State has put himself into a series of straight-jackets in the manner in which he has approached the decision-making process.

As I have said, it is essential to have in mind that this application has to be considered on the material before the Secretary of State. One may take the view that what is now disclosed in Mr Lau's opinion is a substantial cause for gravely doubting the conclusions reached by Professor Pearl as to the ambit of section 295C, or at least the use which may be made of it by the Pakistani authorities.

The Court is glad to have Mr Jay's assurance on behalf of the Home Office that the Secretary of State will consider (and it goes without saying that that means that he must consider with an open mind), the new material, and in particular that report from Mr Lau. It equally goes without saying that no steps will be taken against this applicant until this has been done.

However, so far as the application for leave is concerned, for the reasons that I have given, I do not think it is arguable that the Secretary of State has fallen into any category of judicial review challenge, which Mr Collins has put forward for my consideration, and the application is thus refused.

DISPOSITION:

Application refused

SOLICITORS:

Aslam Heath & Co; Treasury Solicitor