Z. and T. v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicants, Z. born in Pakistan in 1973 and T. born in Pakistan in 1965 are Pakistani citizens currently resident in Hull. They are represented before the Court by Mr D. Foster, a solicitor practising in Guildford. The applicant sisters are Christians. Their parents, Mr and Mrs M., were active in the Christian community in Bahawalpur and Mr M. was a Methodist minister for 38 years. In 1990, the second applicant, T. married her cousin, also a christian and son of a minister in 1990. She went to live in Peshawar and from 1999 worked as a teacher in the Presentation Convent School in Peshawar. The first applicant, Z. had married a fellow Christian in 1997 and moved to live in Sukkur. On 28 October 2001, after the attacks in the United States on 11 September 2001, there was an attack on the Methodist church in Bahawalpur. Machine guns were fired into the church and many worshippers were killed and injured. One of the policeman on duty at the church was killed. Mrs M. was among the severely injured. Mr and Mrs M, and their son Dr H. fled to the United Kingdom to obtain medical treatment for Mrs M. Their son I. was already in the United Kingdom. All were granted asylum. The applicants’ sister A. was also granted asylum on 3 September 2004. On 28 April 2004, the first applicant travelled to the United Kingdom with her children on a visitors visa to see her mother who continued to be unwell. On 17 May 2004, Mrs M. died. On 27 May 2004 the second applicant came to the United Kingdom with her family to attend the funeral. On 29 April 2004, a day after her arrival, the first applicant applied for asylum, along with her husband and daughter, invoking Articles 2, 3, 5, 6, 8, 9, 10, 11, 12 and 14 of the Convention. She stated that there had been a bomb threat on their church in Sukkur during 2002 when the police had deactivated an explosive device, while in October 2003 her husband and his brother had been attacked by extremists. In the latter incident, although there was shooting, no-one was hurt and the assailants absconded with her husband’s motorbike. She and her husband had also received threatening telephone calls. By letter dated 25 June 2004, the Secretary of State gave reasons for refusal, considering that the applicant had never been physically attacked or ill-treated on the basis of her beliefs and had not been present during the bomb threat at the church where the police had successfully intervened. He noted that Christians were a recognised minority group under the Constitution of Pakistan, that the Government were taking measures to curb acts of sectarian violence and that they were willing and able to take action to protect Christian churches and communities. By decision of 18 February 2005, the Adjudicator refused her appeal, finding that the authorities offered protection to churches, inter alia convicting six men for an attack on a Christian church. He also noted that the applicant had not herself been personally or directly threatened with violence and that she had lived some distance from Bahawalpur, having no direct connection with the incident there. He noted that the assault on her husband in 2003 had been reported as robbery without any mention of religious motivation for the attack. He found no problem arising under Article 9 as there was no bar on Christianity as shown by the fact that her father had been a minister for 38 years. He concluded that she had not shown that she was risk. On 26 March 2005, the Immigration Appeal Tribunal (IAT), refused the first applicant permission to appeal noting a recent precedent from the House of Lords in Ullah (R (Ullah) v. a Special Adjudicator [2004] INLR 381) and finding in line with that authority that the situation of Christians in Pakistan who, for example, had their own representatives in Parliament was not so flagrantly bad as to allow exceptionally a case to proceed under Article 9 where there were no grounds under Article 3. On 13 August 2004, the second applicant applied for asylum, together with her children and husband. She invoked Articles 2, 3, 8, 9 and 14 of the Convention, claiming that she feared that if she returned to Pakistan she would be subjected to attack by Muslim extremists because she was a Christian. She referred to having received nuisance telephone calls during the night after the incident on the Bahawalpur Church. By letter dated 6 October 2004, the Secretary of State refused asylum, noting inter alia that Christians were a recognised minority group under the Constitution of Pakistan, that the Government were taking measures to curb acts of sectarian violence and that they were willing and able to take action to protect Christian churches and communities. He also did not consider that the applicant was at risk because of the incident at Bahawalpur as she lived in Peshawar and since the incident had suffered nothing more serious than nuisance telephone calls. He found no ground for a breach of Article 9 as she had not shown any risk of a flagrant denial of her rights. By decision of 18 January 2005, the Adjudicator refused the applicant’s appeal, noting that the applicant had not applied for asylum at the time of the 2001 attack but had remained in Pakistan for another three years. While she claimed to have received unpleasant telephone calls, she had been able to deal with them by switching off the phone. He found no indication that there would be insufficient protection offered to her by the authorities who had placed guards on the churches and on the school where she worked. On 1 March 2005, the IAT refused permission for an appeal, noting that the second applicant had not raised her Article 9 complaint before the Adjudicator even though she was represented by specialist advocates and finding no error in the Adjudicator’s decision. In the case of R. (on the application of Ullah) v. Special Adjudicator ([2004] INLR 381), the claimant entered the United Kingdom from Pakistan and applied for asylum, claiming to have a well-founded fear of persecution as a result of his religious beliefs. The Secretary of State dismissed his claim and held that he had not qualified for permission to remain in the country by reason of any Article of the Convention. The claimant’s appeal was dismissed, the Special Adjudicator finding that he did not have a well-founded fear of persecution and that, while Article 9 of the Convention could be engaged in such a situation, the Secretary of State had acted lawfully and proportionately and in pursuance of the legitimate aim of immigration control in refusing leave to remain. The Court of Appeal dismissed the claimant’s further appeal, holding that where the Convention was invoked on the sole ground of the treatment to which an alien was likely to be subjected by the receiving State and that treatment was not sufficiently serious to engage Article 3, the court was not required to recognise that any other Article of the Convention was, or might be, engaged. The House of Lords dismissed the claimant’s further appeal. However, differing from the Court of Appeal, the Lords held that where in relation to the removal of an individual from the United Kingdom the anticipated treatment did not meet the minimum requirements of Article 3, other Articles of the Convention might be engaged. While it was hard to conceive that a person could successfully resist expulsion in reliance on Article 9 without being entitled either to asylum on the ground of a well-founded fear of being persecuted for reasons of religious or personal opinion or to resist expulsion in reliance on Article 3, such a possibility could not be ruled out. It would be necessary for a claimant to establish at least a real risk of a flagrant violation of the very essence of the right before the other Articles could become engaged. The House of Lords found that, in the instant appeal, the claimant’s case had not come within the possible parameters of a flagrant, gross or fundamental breach of Article 9 such as to amount to a denial or nullification of the rights conferred by the Article.