The authors of the communication are B.B. and M.K., nationals of Pakistan born in 1948 and 1943, respectively. They submit that by deporting them to Pakistan, the State Party would violate their rights under article 7 of the Covenant. They are represented by counsel. The Optional Protocol entered into force for the State Party on 23 March 1976.
On 11 October 2024, the Committee, acting through its Special Rapporteurs on new communications and interim measures, requested the State Party to refrain from deporting the authors to Pakistan while their case was under consideration by the Committee. The authors remain in Sweden.
Facts as presented by the authors
The authors are Ahmadi Muslims and are from Rabwah in Pakistan. They are married and both had leading roles in their local congregation for Ahmadi Muslims. B.B. led a women’s group of around 200 members; meetings were usually attended by around 80 active members. B.B. also held monthly meetings with community leaders from other areas. Her work included teaching the Qu’ran and scheduling weekly activities. B.B. held that role for seven years. Because of discriminatory laws and oppression in Pakistan, B.B. ensured that the meetings could take place safely, without interference.
M.K. led the local Ahmadi congregation for 12 years. His duties included deciding how to distribute funds to members who had fallen ill. He was supported by about seven or eight members who received orders from him.
Both B.B. and M.K. always had difficulty in expressing their religion in everyday life. They had to be very careful in basic aspects of their daily life, such as greeting people. They were not allowed to attend mosques. They had to take precautions when burying friends because of the risk that the graves would be destroyed or tampered with.
The authors have a son in Sweden and had previously travelled to Sweden to visit him. They returned to Pakistan after their visit because they had a strong community there and did not wish to live elsewhere.
However, their situation changed in 2022, when there was a rise in attacks on Ahmadi Muslims belonging to their congregation. The authors feared for their lives. In August 2022, Naseer Ahmed, an Ahmadi Muslim, was killed at the age of 62 by a religious extremist during a protest. M.K. had been close to the victim and had had frequent contact with him. The authors began to fear for their safety in a new way.
In autumn and winter 2022, religious leaders and extremists disseminated propaganda in Rabwah to incite the authorities to take action against Ahmadi Muslims and the places where they studied. On 9 January 2023, the headmaster of the Ahmadi Muslim school in Chenab Nagar – the area where the authors were active – was arrested. During the arrest, an extremist who had orchestrated acts against Ahmadi Muslims, joined by his followers, reported the headmaster to the authorities. The police then raided the headmaster’s house. This demonstrated the strong ties between extremists and the local police with respect to discriminatory actions against Ahmadi Muslims.
There was widespread concern within the Ahmadi congregation that the authors’ house was at risk of being searched because of their position in the community. The authors had religious literature at home and feared that it could be discovered during a police raid. M.K. has had a bypass operation and is of weak health. He was therefore concerned about how he would cope with the physical and mental toll of being attacked or arrested.
One day while the authors were visiting relatives, neighbours called them to tell them that people appeared to be searching for them outside their home. The authors did not dare to return home. They stayed with relatives and friends until they were able to leave Pakistan.
Asylum procedure
On 22 February 2023, the authors applied for asylum in Sweden. On 9 June 2023, the Migration Agency rejected their application. In its decision, it made the following findings. While the authors were Ahmadis and held leadership positions within their religious community, their account of receiving threats was based on second-hand information and speculation. They had not submitted concrete evidence of being personally targeted. They had both stated that they had not been subjected to any ill-treatment in Pakistan because of their religious affiliation and positions.
The Migration Agency noted that the authors had spent their entire lives in Pakistan and had held their Ahmadi leadership roles for 7 and 12 years respectively, without incident. There was no indication that they would attract attention or face persecution upon return.
Regarding the general situation of Ahmadis in Pakistan, the Migration Agency acknowledged that there were restrictions on religious freedom and instances of discrimination and abuse. However, country of origin information indicated that the authorities had taken action against perpetrators of violence against Ahmadis, including arrests following the murder of Naseer Ahmad.
The Migration Agency cited the Court of Justice of the European Union in Bundesrepublik Deutschland v. X and Y, in which it was considered that the applicants had not demonstrated a real risk of persecution based on their future religious practice.3 The Migration Agency concluded that authors did not meet the criteria for refugee status or subsidiary protection under Chapter 4, Sections 1-2 of the Aliens Act.
- CJEU - C 71/11 and C 99/11 / Judgment, 5 September 2012. ↩
The Migration Agency further assessed whether the authors could be granted residence permits on grounds of exceptionally or particularly distressing circumstances under Chapter 5, Section 6 of the Aliens Act. It found that the authors had not developed special ties to Sweden, did not suffer from serious health conditions, and had not adapted to life in Sweden to a degree that would justify residence on humanitarian grounds.
The authors appealed against the decision of the Migration Agency to the Migration Court. In their appeal, the authors were represented by their current public counsel. On 26 March 2024, the Migration Court rejected the authors’ appeal. The Migration Court acknowledged that Ahmadis face general difficulties in Pakistan but considered that the level of interference with the authors’ religious practice did not amount to persecution. Their claims of being targeted were based on second-hand information and assumptions, without concrete evidence. They had lived their whole lives in Pakistan and had held leadership positions in their Ahmadi community for many years, without having been persecuted.
The authors did not attempt to appeal against the negative decision of the Migration Court to the Migration Court of Appeal. This was because of a technical error at the law firm which represents the authors. The authors were not at fault.
Procedure concerning an application for a residence permit and re-examination (impediments to enforcement of expulsion)
On 12 June 2024, the authors applied to the Migration Agency for a residence permit and re-examination of their asylum application in the light of new circumstances constituting an impediment to the enforcement of their expulsion order. The authors argued that their asylum application had not been fairly assessed.
On 18 June 2024, the Migration Agency denied the authors’ application for re-examination. It considered that the author’s new claims were additions to and modifications of previously examined circumstances and were not new circumstances of the kind required by law.
On 18 June 2024, the Migration Court upheld the decision of the Migration Agency. On 7 August 2024, the authors sought leave to appeal to the Migration Court of Appeal. On 19 and 24 August 2024, they submitted additional information to the Migration Court of Appeal. On 27 August 2024, their application was denied.
Complaint
The authors submit that by deporting them to Pakistan, the State Party would violate their rights under article 7 of the Covenant. They would face a real, personal and foreseeable risk of being subjected to torture or ill-treatment in Pakistan, owing to their religious beliefs and practice as Ahmadi Muslims.
During the asylum procedure, the Migration Agency did not fairly assess their claim and made manifest errors. The Migration Agency failed to consider the escalating attacks towards Ahmadi Muslims in Pakistan in recent years. M.K. knew an Ahmadi Muslim in his community, Naseer Ahmed, who was killed by an extremist. The Migration Agency considered that the authors had not previously faced harm and could continue their practice upon return. They could also abstain from engaging in religious practices that would expose them to a risk of harm in Pakistan. According to Guidelines of the U.N. High Commissioner for Refugees and jurisprudence of the European Union, whether a person could avoid a risk by abstaining from certain religious practices is not relevant to determining the risk that they would face upon return.4
- UNHCR Guidelines on International Protection No. 6: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention, para. 13; European Court of Human Rights, F.G. v. Sweden, application no. 43611/11, para. 46; European Court of Justice, Y and Z, C-71/11 and C.99/11. ↩
During the appeal procedure, the authors’ request for an oral hearing was denied by the Migration Court. Their credibility had been questioned, and they wished to elaborate on their actual reasons for applying for asylum. The authors argued in their various submissions to the Migration Court that the Migration Agency had not considered the facts of the case and had applied the wrong standard.
During the recent proceedings before the Migration Court of Appeal, the authors cited new information regarding recent events in Pakistan. From June 2024, there has been a surge in arbitrary arrests and detention in Pakistan. On 25 July 2024, a group of U.N. special procedures mandate holders requested the authorities in Pakistan to end discrimination and violence against Ahmadi Muslims.5 Ahmadi Muslims face risks in practicing their faith, including within private homes. They risk being subjected to searches of their homes, where their belongings may be used to find them guilty of violating discriminatory laws. Also in 2024, 17 graves of Ahmadi Muslims were desecrated. A violent mob of about 150 people attacked a place of worship. Assailants opened fire and destroyed parts of the building. Three Ahmadi Muslims were detained for two days on the ground that they risked performing rituals during Eid. Because the Migration Court of Appeal denied their application for leave to appeal during the residence permit and re-examination procedure, the authors have not had their claims relating to the new information assessed on the merits.
- “Pakistan: Experts urge immediate end to discrimination and violence against Ahmadis,” https://www.ohchr.org/en/press-releases/2024/07/pakistan-experts-urge-immediate-end-discrimination-and-violence-against ↩
State Party’s observations on admissibility and the merits
In its submission of 11 April 2025, the State Party maintains that the communication is inadmissible under article 5 (2) (b) of the Optional Protocol because the authors have not exhausted domestic remedies. They did not file an appeal concerning their asylum case to the Migration Court of Appeal. They assert that this was because of a technical error made by the law firm representing them, not because of a mistake they made themselves. However, they could have, but did not, apply for restoration of expired time under section 37 (c) of the Administrative Court Procedure Act (1971:291). That provision would result in an examination as to the validity of the authors’ excuse for not filing a timely appeal. If the excuse were found to be valid, time would be restored to them to file an appeal.
Regardless of the reasons for which the authors failed to file an appeal to the Migration Court of Appeal, it is not for the Committee to examine those reasons as a first instance. The same applies for an examination of the merits of new country reports cited by the authors in their communication. Those new reports were not available to the migration authorities during their examinations. The authors have the possibility to cite those reports in a new application for residence permit or new examination of the issue pursuant to Chapter 12, Sections 18 and 19 of the Aliens Act.
In addition, the communication is inadmissible and without merit because it is manifestly unfounded. The Committee has stated that there must be substantial grounds for believing that there is a real, personal necessary and foreseeable risk of a violation of articles 6 or 7 of the Covenant in the case of a forced return. Considerable weight should be given to the assessment of the States parties. The Committee is not a court of fourth instance that should reevaluate facts and evidence de novo. The general situation in Pakistan does not in and of itself suffice to establish that the author’s deportation would violate article 7 of the Covenant. The Swedish Aliens Act contains provisions reflecting the principles of articles 6 and 7 of the Covenant. The migration authorities applied those principles in the present case, and both the Migration Agency and the Migration Court (which are specialized bodies with particular expertise in asylum law and practice) thoroughly examined the author’s case.
The Migration Agency held two interviews with the authors on 2 March and 28 April 2023. The latter interview lasted five hours and took place in the presence of public counsel. Both interviews were conducted with interpreters, whom the authors confirmed that they understood well. Through their public counsel, the authors were invited to scrutinize and submit written observations on the minutes from the interviews conducted, and to make written submissions and appeals. They have thus had ample opportunities to explain the relevant facts and circumstances in support of their claims, both orally as well as in writing, before the Migration Agency, and in writing before the Migration Court. The authorities thus had sufficient information to ensure that they had a solid basis for making a well-informed, transparent and reasonable risk assessment.
Concerning the authors’ assertion that they did not have an oral hearing, under Chapter 16, Section 5 of the Aliens Act, an oral hearing should be held before the migration courts upon request by the alien if it is not unnecessary and if there are no further special grounds for not holding it. An oral hearing is not mandatory before the Migration Court. It only serves as a supplement to the written proceedings and the contents of the case file, which cover all the matters with the Migration Agency. In the authors’ case, the Migration Court did not question their credibility or the reliability of their assertions. Instead, the Court considered that their statements and other evidence were insufficient to conclude that they needed international protection. Under established case law, an oral hearing in such circumstances is unnecessary. Accordingly, while the authors disagree with the outcome of the domestic decisions, there is no reason to conclude that the domestic rulings were inadequate or that the outcome of the domestic proceedings was in any way arbitrary or amounted to a denial of justice.
In accordance with the Committee’s jurisprudence, the general situation of Ahmadis in Pakistan does not in and of itself substantiate a claim of a personal risk of ill-treatment under article 7 of the Covenant.6 The domestic authorities acknowledged the challenges faced by Ahmadis in Pakistan but considered that the authors had failed to demonstrate a specific and individualized risk. The authors have not been personally subjected to threats or attacks, nor have they attracted the attention of the authorities in Pakistan despite their active roles in the Ahmadi community.
- R.M. and Q.M. v. Sweden (CCPR/C/141/D/4062/2021 and CCPR/C/141/D/4191/2022). ↩
In their application for a residence permit or re-examination, the authors did not present new circumstances or country information that had not already been assessed during the asylum proceedings. The country of origin information and case law that they cited had already been considered during the asylum proceedings. The new country of origin information that they cite before the Committee was only added to their domestic case after they had filed an appeal to the Migration Court of Appeal in the residence permit matter. However, the Migration Court of Appeal is not tasked with assessing every complaint brought before it on its merits. Under Chapter 16, Section 12 of the Aliens Act, leave to appeal is only granted for precedential or extraordinary reasons. The fact that the Migration Court, in the authors’ view, should have decided their appeal differently, or could decide it differently based on new country of origin information, does not suffice for the Migration Court of Appeal to grant leave to appeal. The domestic authorities did not disregard relevant country reports but rather have not yet had the opportunity to assess them in light of new developments. The authors may submit a new application under Chapter 12 of the Aliens Act if they believe that the current situation in Pakistan, particularly for Ahmadis, constitutes an impediment to enforcement of their expulsion orders.
Regarding the State Party’s authorities’ suggestion that the authors could avoid persecution by concealing their religious beliefs, no such argument appears in the domestic decisions, and the authors do not specify which authority made that suggestion. The authors have not established a foreseeable, present, personal, and real risk of treatment contrary to article 7 of the Covenant in the case of their return to Pakistan.
Authors’ comments on the State Party’s observations on admissibility and the merits
In their comments of 23 June 2025, the authors reiterate their arguments and add that the Migration Court of Appeal is not an effective remedy because it only grants leave to appeal in exceptional cases and has reviewed fewer than 1 in 3,000 cases in recent years.
The authors initiated a new asylum procedure shortly after missing the opportunity to appeal to the Migration Court of Appeal. In the new procedure, under Chapter 12, Sections 18 and 19 of the Aliens Act, all relevant facts were presented and reviewed by all domestic authorities. The Migration Agency was required to assess both new and previously submitted facts in determining the need for protection. The emergence of new country of origin information during that process, which further substantiates the deteriorating human rights situation for Ahmadi Muslims in Pakistan, does not preclude the Committee from examining the communication. The domestic authorities are required to consider updated country of origin information, whenever it is submitted by an applicant.
The worsening situation for Ahmadi Muslims should not be used to their disadvantage. Rather, it highlights the need for domestic authorities to apply a safety margin in assessing such cases to avoid exposing individuals to irreparable harm.
The authors reiterate their arguments on the merits. The domestic authorities implicitly relied on an assumption that they could avoid persecution in Pakistan by concealing their religious identity. While the authors held roles in the Ahmadi community, that does not mean that they could openly practice their faith. During his asylum interview, M.K. mentioned the severe restrictions on religious expression for Ahmadis in Pakistan. M.K. stated that they may not attend mosques, recite the Quran, or pray in public. Those facts were not disputed by the domestic authorities, and the Migration Agency acknowledged the legal and constitutional restrictions on Ahmadi religious practices in Pakistan.
A report of 2021 by the U.K. Home Office confirms that Ahmadi Muslims are criminalized for most religious activities and are required to renounce their faith to obtain official documents.7 In 2024, Ahmadis in Pakistan were targeted through arbitrary arrests, home searches, desecration of graves, and mob violence. This indicates that the threats against them are escalating. Even private religious practices are no longer safe.
- Country Policy and Information Note Pakistan: Ahmadis (version 5.0), 1 September 2021. ↩
The domestic authorities considered that the determinative factor was whether the authors would openly practice their faith in a way that would lead to punishment in Pakistan. That standard is flawed. The correct test to apply, under international law, is whether an Ahmadi Muslim could live openly in Pakistan but for the risk of persecution. The authors have a genuine religious belief and a desire to practice their faith openly, which would expose them to criminal liability and a real risk of torture or ill-treatment in Pakistan. In Sweden, they have practiced their faith freely and wish to continue doing so. The domestic authorities failed to consider the risk of harassment and violence from non-state actors, including religious groups and the public, which further compounds the risk that the authors would face.
As remedies, the authors request declaratory relief, cancelation of removal, and compensation for legal costs in the amount of 30,000 Swedish kroner.
State Party’s further observations
In its further observations of 22 August 2025, the State Party addresses the authors’ argument that an appeal to the Migration Court of Appeal would have been ineffective. On the contrary, the Migration Court of Appeal is the final judicial instance in Swedish migration proceedings, and its decisions are binding and have suspensive effective. Such an appeal is indeed a remedy within the meaning of article 5 (2) (b) of the Optional Protocol. The European Court of Human Rights has affirmed the effectiveness of that remedy.8 The authors failed to exhaust it for the reasons previously mentioned. Under the Committee’s jurisprudence, authors are responsible for complying with reasonable procedural rules, including time limits for appeals.9 Failures by legal representatives cannot be attributed to a State Party unless it contributed to the failure.10 In the authors’ case, the State Party did not do so.
A correction must be made to the substance of the authors’ remarks referred to in paragraph 5.2 above. The application they described was not in fact a new asylum application and was not part of the asylum procedure. Rather, it was an application for a residence permit or a new examination, under Chapter 12, Sections 18 and 19 of the Aliens Act. Unlike asylum procedures, those applications are limited to an assessment of new circumstances that may impede enforcement of an expulsion order. A full re-examination of the grounds for asylum only occurs if the Migration Agency grants a new examination under section 19 of the Aliens Act. That did not happen in the authors’ case, because the circumstances they invoked were not considered new. The residence permit application is an extraordinary remedy. It does not absolve the authors from pursuing all available judicial remedies against the original expulsion order. At a minimum, the new country reports cited by the authors in their communication to the Committee should have been submitted to the Migration Agency in their application, for the remedy to be considered exhausted.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not presently being examined under any other procedure of international investigation or settlement.
In accordance with article 5 (2) (b) of the Optional Protocol, the Committee shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes the State Party’s position that the authors did not exhaust domestic remedies because they did not file an appeal during the asylum procedure to the Migration Court of Appeal, to contest the decision of the Migration Court.
The Committee recalls that authors of communications must exercise due diligence in the pursuit of available remedies.11 The Committee notes the authors’ assertion that the Migration Court of Appeal is an ineffective remedy because it rarely grants applications for leave and appeals. However, the Committee recalls that the effectiveness of a remedy does not depend on the certainty of a favourable outcome for the author, and that mere doubts about the effectiveness of a remedy do not absolve the author from the obligation to attempt to exhaust that remedy.12 The Committee notes that applications for leave to appeal to the Migration Court of Appeal have suspensive effect with respect to expulsions, that the body is the final judicial instance in Swedish migration proceedings, and that its decisions are binding. While the authors filed a subsequent application for a residence permit based on impediments to the enforcement of the expulsion order, that procedure was extraordinary and did not absolve the authors of having to exhaust remedies during the asylum procedure. Accordingly, the Committee considers that the Migration Court of Appeal represented an effective remedy during the asylum procedure and that the authors were required to exhaust it.
As to whether the authors exercised due diligence in pursuing that remedy, the Committee notes the authors’ statement that because of a technical error, their legal representative failed to apply to the Migration Court of Appeal during the asylum procedure, and that they were not responsible for that error. The Committee notes that the nature of the technical error has not been specified. The Committee recalls that an author is required to abide by reasonable procedural requirements such as filing deadlines, and that the errors or omissions of an author’s legal representative cannot be attributed to the State Party, unless they were in some measure due to the latter’s conduct.13 In this communication, there is no indication of any such State responsibility. The authors have not alleged that the law firm whose fees were paid by the State Party and whose services the authors have continued to retain since the asylum procedure, was chosen for them by the authorities. In addition, the authors have not explained why they did not apply for restoration of expired time under section 37 (c) of the Administrative Court Procedure Act (1971:291). Such an application could have resulted in an extension of the time limit to apply for leave to appeal if the authors’ excuse were found valid. Recalling that the fulfilment of reasonable procedural rules is the responsibility of the applicant,14 the Committee considers that by failing to apply for leave to appeal to the Migration Court of Appeal during the asylum procedure, the authors did not exhaust available and effective domestic remedies. The communication is therefore inadmissible under article 5 (2) (b) of the Optional Protocol.
In the light of its findings, the Committee deems that it is not necessary to examine other grounds of inadmissibility.
The Committee therefore decides: (a) That the communication is inadmissible under article 5 (2) (b) of the Optional Protocol;