The decision


CS (Safe/Unsafe Arrivals: No Distinction) China [2003] UKIAT 00009
Heard: 08.04.03
Typed: 10.04.03
Sent out: 04.06.03     


John Freeman (chairman)
Miss SS Ramsumair JP and
Mr CAN Edinboro

Secretary of State for the Home Department,



Mr C Buckley for the Secretary of State
Mr A Yuen (working under the supervision of ‘Phoenix Nova’, solicitors) for the claimant

This is an appeal from a decision of an adjudicator (Miss DA Thomas), sitting at Nottingham on 8 February 2002, allowing an asylum and human rights appeal by a citizen of China. Leave was given on the basis that the adjudicator might have misunderstood the decision of the Tribunal in Bin & Bang [01/BH/0059], which had been before her. The hearing was held over, first to await the further decision of the Tribunal in Liu [2002] UKIAT 03683 (as Mr Yuen, who appeared in that case, told us it should properly be called; then by some administrative oversight, for which we are sorry.
2. It seemed to us that Liu had resolved the adjudicator’s misunderstanding of Bin & Bang, and much else besides, so we shall start with the history of this litigation, in each case involving Mr Yuen, under the ægis of various firms, on behalf of Chinese illegal entrants who resisted removal on the basis of the risk on return from “snakeheads” who arranged their travel here, and from “loansharks” who financed it. In Bin & Bang, written by Allen VP, the Tribunal allowed Home Office appeals against decisions of adjudicators, allowing on human rights grounds appeals by two such persons. Their conclusion, at § 43, was this:
… we do not consider that either [claimant] has made out his case … that he is at risk of treatment contrary to Article 3 on return to China. … the weight of the objective evidence is very much against the argument that they raised, and we do not consider that that evidence is in any sense outweighed by the wealth of evidence concerning the practice of loansharks and snakeheads towards people whose contracts with them have succeeded and who have failed to repay them.
3. The reference to contracts succeeding was to what on “country expert” evidence the Tribunal found the manifest object of the whole enterprise, which was to get the persons trafficked into Western countries where they would earn enough to pay off the debts they or their relations had incurred to send them there. That is the economic motor behind cases of this kind.
4. Mr Yuen persuaded the adjudicator in the present case to a different conclusion from that in Bin & Bang on the basis that the Tribunal there had drawn a distinction between “safe” and “unsafe” arrivals. She explained those at § 22: an unsafe arrival, she said, is where someone is apprehended on entry, and returned without ever getting to work here at all. This claimant, on the other hand, had arrived undetected (he says on 18 May 1999), claimed asylum on the 20th, and been “granted a work permit” [she meant permission to work as an asylum-seeker] in November that year, since when he had been in work here for some two years.
5. The adjudicator did not cite the actual decision in Bin & Bang in drawing that distinction; nor have we been able to find any sign of it for ourselves. The point was raised in Liu (in which one of us took part, but which was written by Moulden VP), and dealt with (at § 17) on the basis that there had been no concession by the Home Office in Bin & Bang (referred to in Liu as ‘Hou and Wu’) that there was any risk on return for safe arrivals here; nor, clearly, was there anything else in that decision to support the contention. What it appears to refer to is the distinction drawn by counsel for the Home Office (see § 30) “… between the behaviour of the snakeheads towards those whose emigration to the United Kingdom they have secured, and who have failed to repay them ...” and others. What is meant, as should have been clear from Liu, is that those who get to stay here, but fail to pay, may well be at risk; but others not. People currently working in this country obviously have means to pay, which is most unlikely to be the case with those returned to China.
6. The ratio in Liu was as follows:
15. The principal reason for our conclusion that the Appellant would not be at risk on return is the lack of any country information to indicate that she would be at risk. Nevertheless, logic also supports this conclusion. The snakeheads and loan sharks are violent and unscrupulous, but they are running what is likely to be a highly profitable business and would prefer to avoid actions which might damage that business. Violent or other persecutory action against those who are returned to China would be unlikely to result in the recovery of much money, but would be likely to discourage future customers. Amongst the press reports submitted by Mr Yuen are reports of snakeheads going to great lengths to build spectacular houses to show to potential customers, as an indication of the sort of accommodation and lifestyle they can expect if they travel to a western country. If the snakeheads or loan sharks go to these lengths it is not likely that they would risk deterring potential customers by taking hostile action against those who are returned, usually through no fault of their own. Clearly it is a different matter to ensure that those who remain abroad and are able to pay continue to pay for fear of what might happen to them or their relatives at home.
6. In Mr Yuen’s 5½ page skeleton argument in the present case, he had quite unaccountably not mentioned Liu, even though, as will be remembered, he had appeared in it himself. We had better repeat that unqualified, but paid advocates of any kind have just the same duty as counsel or solicitors to draw the attention of tribunals before whom they appear to any relevant citable decisions, whether or not those go against them. If they do not, they will expose themselves to the justifiable suspicion of hoping to mislead the tribunal (whose identity they will be unaware of in advance) as to the state of the law, or factual guidelines. Their professional supervisors, if any, will be at risk of complaints leading to possible disciplinary action if they fail to draw this duty to their attention.
7. As there seemed to be no meaningful distinction to be drawn on the facts of this case between it and Liu (who by the date of the hearing before the Tribunal – see § 5 – was working in this country), we asked Mr Yuen what, if anything, had emerged since that decision to cast any different light on this kind of situation. He spent some time expatiating on the suggestion that here there had been defects in the decision-making process, leading to a justifiable complaint under § 7.1 of the Human Rights Act 1998; but he did not say what those defects might have been.
8. Nor did Mr Yuen make any attempt to deal with the point we put to him, which was that our main rôle under § 65 of the 1999 Act is to consider whether carrying out the decision taken would infringe the claimant’s human rights. In our view most, if not all defects in the decision-making process are intended by Parliament to be remedied by the right to a full hearing before an adjudicator on the merits of the case, with the possibility of another before the Tribunal. Only if defects in the decision-making process are such as to make a fair hearing on the merits impossible are they likely to result in an appeal being allowed.
9. Mr Yuen referred us to no evidence which had not been before the Tribunal in Liu (and in some cases Bin & Bang too). So far as he referred to particular items of evidence at all, it was to the country experts relied on by the Home Office in Bin & Bang. Mr Yuen suggested that Dr Fisher’s comments about pursuing those who did not get to stay in this country being bad for the “snakeheads”’ business were no more than expressions of his opinion; but, for the reasons given in Liu, we consider them eminently logical. Mr Yuen went on to rely on what is said by Dr Chin (at p 203 of his bundle); but that in our view clearly relates to risks for those who remain in the destination country.
10. Mr Yuen attempted to rely on a number of decisions by adjudicators, whom he had persuaded to accept his submissions; but that is wholly impermissible, either before us or before adjudicators, without some particular nexus between the cases as individual cases, as recent practice directions by both Collins P and the Chief Adjudicator have made clear.
11. Mr Yuen’s final argument was that the Home Office had failed to show that there was no risk on return from “loansharks” (or “snakeheads”) for persons in this claimant’s position. He referred to the report of Dr Pieke, summarized in the CIPU report at § 6A 227, saying, no doubt rightly, that there is no evidence of exactly what does happen in these cases. However, it is enough to express this argument as we have done to show that it puts the burden of proof on the wrong side. It is for those resisting removal to show that it would expose them to treatment contrary to the Human Rights Convention, not the other way round.
12. The adjudicator decided this case on the basis that the “abundance of objective evidence” (which she did not particularize) showed that it was inevitable that this claimant and his family would be at risk from “snakeheads” on return to China. As we have seen, that was based on a misunderstanding, promoted by Mr Yuen, of the effect of Bin & Bang, which was later cleared up by the Tribunal in Liu. Of course the adjudicator could not be expected to anticipate the reasoning in Liu; but we have no doubt that it effectively removes the basis for her decision.

John Freeman (chairman)