Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02746/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 17 February 2017
On 8 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Tong Fen CHEN
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss Khan, instructed by Fadiga & Co, Solicitors
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, Tong Fen Chen, was born on 27 August 1982 and is a female citizen of the People’s Republic of China. By a decision promulgated on 11 March 2016, I found that the First-tier Tribunal had erred in law such that the decision fell to be set aside. My reasons for reaching that decision were as follows:
1. The appellant, Tong Fen Chen, was born on 27 August 1982 and is a female citizen of The People’s Republic of China. The appellant appealed to the First-tier Tribunal (Judge Herwald) against a decision of the respondent dated 2 February 2015 to refuse the appellant’s asylum claim and to make directions for her removal from the United Kingdom. The First-tier Tribunal dismissed the appellant’s appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. I find that, of the three grounds of appeal, the first two grounds are entirely without merit. The first ground asserts the judge rejected evidence that the appellant had been involved in separatist activities and had not found that the appellant had set up any prayer association in her own home. The ground refers to background evidence indicating that being associated with separatism as opposed to involved in it was sufficient to attract the interest of the Chinese government. Secondly, it is asserted that the appellant had never claimed that she had set up a prayer association in her own home; she claimed that a Tibetan monk had set up a prayer association in her home. As regards the latter point, I cannot see that the judge’s findings of fact are disturbed by this detail given that the judge has dealt with the appellant’s connection with Tibetan monks and the appellant claimed to have been arrested. As regards the first point, the judge analysed all the evidence in a holistic manner and concluded that the appellant was not a credible witness [16(g)]. The judge also found [16(a)] that the appellant had no interest in any form of politics including the politics of Tibetan separatism.
3. The second ground of appeal is also without merit. The appellant asserts that the judge “focused on negative aspects” of her claim. I am satisfied the judge considered all the evidence holistically and reached findings of fact which were plainly available to him. The ground of appeal amounts to nothing more than a disagreement with the judge’s findings of fact.
4. Miss Khan, for the appellant, concentrated almost entirely at the appeal hearing before the Upper Tribunal on the third ground of appeal. This concerns the expert report which the appellant had obtained from Dr Tran. The judge dealt with this at [12]:
In her submissions, the appellant’s representative told me that ‘the private life and Article 8 claims are quite minimal. She has not been in the UK long enough. This is basically an asylum claim.’ I find that Miss Chawdhery is right to make these submissions and, in addition, she told me that the expert report had completely failed to take into account the country guidance of AX (Family Planning Scheme) China CG [2012] UKUT 97. More of that later, but she told me that I was bound by that country guidance case unless there was something in the rest of the background information or in this expert report to suggest otherwise and she made clear that there was not. I concur with her submission in this respect and must follow the country guidance case.
5. The judge referred to AX at [15(e)] but did not refer to it again in the decision nor did he refer to the expert report.
6. I have before me a statement prepared by Miss Chawdhery of Counsel who appeared before the First-tier Tribunal. The statement is dated 20 October 2015. Counsel has helpfully set out her recollection of her exchanges with the judge at the hearing. Miss Chawdhery states that, during her submissions, she drew attention to the fact that the expert had dealt with an aspect of the appellant’s case which did not fall within the parameters of AX, namely that her children had been born out of wedlock. The statement also refers to exchanges with the judge during which the judge had commented that there was “very little evidence of parents being penalised if they returned to China with foreign born children and because the appellant’s children were born in the UK, her children were likely to be viewed as foreign born children.” Counsel confirmed that she was not asking the judge to depart from the country guidance case of AX but it is clear from her statement that she did seek to rely upon the additional point regarding the children having not been born in marriage. Other than the judge’s comment regarding “foreign born children” (not referred to in the written decision itself) it is unclear exactly what view he took of the submission regarding children born outside marriage. I note that the judge was asked to comment on the Ms Chawdhery’s statement but no response has been forthcoming.
7. Mr McVeety, for the respondent, urged me to leave the decision undisturbed. He submitted there was nothing in Miss Chawdhery’s statement which would indicate that the judge would have come to a different result. It is unfortunate that the judge did not refer in greater detail in his decision to his exchanges with Miss Chawdhery regarding the expert report and the country guidance case. I am satisfied that the contents of Miss Chawdhery’s statement represent a true and accurate account of those exchanges. Though the matter is finely balanced, I find that the judge did fall into error by not dealing with the expert report at greater length if only to give reasons for rejecting its contents, including what was said regarding children born outside marriage. Given that I have rejected grounds 1 and 2, I see no reason at all to interfere with the judge’s findings of credibility and fact which are set out at [16]. Subject to those findings being preserved, the decision is set aside. I shall re-make the decision following a resumed hearing in the Upper Tribunal on a date to be fixed in Manchester.
Notice of Decision
The decision of the First-tier Tribunal which was promulgated on 5 May 2015 is set aside. The findings of fact at [16] are preserved. The decision will be re-made in the Upper Tribunal by Upper Tribunal Judge Clive Lane at Manchester on a date to be fixed and following a resumed hearing.
No anonymity direction is made.
2. At the resumed hearing in Manchester on 17 February 2017, I heard evidence from the appellant who spoke in Mandarin with the assistance of an interpreter. The burden of proof in the appeal is on the appellant and the standard of proof is whether there is a reasonable likelihood that the appellant would face a real risk of persecution or ill-treatment should she return to China.
3. The appellant said she had last contacted her family in China in February 2016. She had spoken to her aunt (Li Xian Chen). She said that her aunt had subsequently moved house and she had lost her contact number. She had no contact with her sister. The appellant said that any children she had would be unable to register or go to school or access healthcare in China. She told me that her partner, the father of the children, was at court looking after the children in the reception area. The appellant said that her partner had no legal status in the United Kingdom and he is a citizen of China. She claimed that he would be persecuted if he returned to China although, when asked whether he had claimed asylum, she at first gave confused answers before concluding that she thought “he had been refused.” The appellant said she intended to marry her partner but did not have the necessary documents to do so.
4. I was not impressed by the appellant as a witness. I believe that she was well-aware that her partner’s claim for asylum had been refused by the Secretary of State and that she deliberately sought to keep this information from the Tribunal before she was eventually persuaded to divulge it.
5. Mr McVeety’s attack on the evidence of the appellant focused on the report upon which the appellant relies prepared by Dr Tran. There are, in fact, two reports, the addendum report apparently written after China had altered its “one-child” policy. Mr McVeety submitted that, although the addendum report refers to the change in the policy, all the evidence upon which the expert purports to rely in her report dates from before the change in the law. That is, in my opinion, a sound submission and it leads me to diminish the weight which should be attached to Dr Tran’s report.
6. There are other problems with Dr Tran’s report. Many of the assertions which she makes in the report are in the nature of advocacy on the appellant’s behalf rather than a dispassionate and objective assessment of relevant evidence. At [44] of the first report, Dr Tran wrote:
At present Mrs Chen and her children’s lives are safe and secure. As her children were born in the UK Mrs Chen should be allowed to stay in the UK with her children as she qualifies for humanitarian protection and/or private/family life under Article 8 of the European Convention of Human Rights.
7. It is not clear to me why Dr Tran felt it necessary to make that statement which, in my opinion, casts doubt upon the objective nature of her analysis.
8. Secondly, many of the more striking assertions in the report have not been properly sourced. At [35], Dr Tran writes,
Having children out of wedlock is not only considered to break the one-child policy but is treated more harshly. First I find that having a child out of wedlock is much higher, in some provinces it is twice the normal fine for breaking the one-child policy.
Other statements in the report had been sourced (references appear in footnotes), but the statement which I have quoted is without any reference to a source. Unsourced assertions in expert reports which also lack cogent reasons to support them are generally unhelpful and attract little evidential weight.
9. Mr McVeety also attacked the expert’s credentials. Dr Tran, who has a PhD in international law, claims to have research interests in “socialist political country systems” including China. She is herself Vietnamese. Elsewhere in the report she describes her research interests as including international economic law, human rights, land law and the economic legal systems of Asian countries. Prior to completing her PhD thesis she worked as a senior official of the Vietnam government from 1997 to 2006. I consider Dr Tran’s curriculum vitae indicates that she has experience and knowledge of Asian countries generally including China. However, I accept Mr McVeety’s submission that she is not primarily a Chinese expert.
10. Of the difficulties highlighted by Mr McVeety, I am most concerned with the failure of Dr Tran to provide references for some of the statements made in her report.
11. In her submissions, Miss Khan relied upon the country guidance provided by AX (family planning scheme) China CG [2012] UKUT 97 (IAC). The country guidance in that case is as follows:
Chinese family planning scheme:

(1) In China, all state obligations and benefits depend on the area where a person holds their ‘hukou’, the name given to the Chinese household registration system. There are different provisions for those holding an ‘urban hukou’ or a ‘rural hukou’: in particular, partly because of the difficulties experienced historically by peasants in China, the family planning scheme is more relaxed for those with a ‘rural hukou’.
(2) It is unhelpful (and a mistranslation of the Chinese term) to describe the Chinese family planning scheme as a 'one-child policy', given the current vast range of exceptions to the ‘one couple, one child’ principle. Special provision is made for ‘double-single’ couples, where both are only children supporting their parents and their grandparents. The number of children authorised for a married couple, ('authorised children') depends on the provincial regulations and the individual circumstances of the couple. Additional children are referred as 'unauthorised children'.
(3) The Chinese family planning scheme expects childbirth to occur within marriage. It encourages ‘late’ marriage and ‘late’ first births. ‘Late’ marriages are defined as age 25 (male) and 23 (female) and ‘late’ first births from age 24. A birth permit is not usually required for the first birth, but must be obtained before trying to become pregnant with any further children. The Chinese family planning scheme also originally included a requirement for four-year ‘birth spacing’. With the passage of time, province after province has abandoned that requirement. Incorrect birth spacing, where this is still a requirement, results in a financial penalty.
(4) Breach of the Chinese family planning scheme is a civil matter, not a criminal matter.
Single-child families
(5) Parents who restrict themselves to one child qualify for a “Certificate of Honour for Single-Child Parents” (SCP certificate), which entitles them to a range of enhanced benefits throughout their lives, from priority schooling, free medical treatment, longer maternity, paternity and honeymoon leave, priority access to housing and to retirement homes, and enhanced pension provision.
Multiple-child families
(6) Any second child, even if authorised, entails the loss of the family's SCP certificate. Loss of a family’s SCP results in loss of privileged access to schools, housing, pensions and free medical and contraceptive treatment. Education and medical treatment remain available but are no longer free.
(7) Where an unauthorised child is born, the family will encounter additional penalties. Workplace discipline for parents in employment is likely to include demotion or even loss of employment. In addition, a ‘social upbringing charge’ is payable (SUC), which is based on income, with a down payment of 50% and three years to pay the balance.
(8) There are hundreds of thousands of unauthorised children born every year. Family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child. Payment for birth permits, for the registration of children, and the imposition of SUC charges for unauthorised births are a significant source of revenue for local family planning authorities. There is a tension between that profitability, and enforcement of the nationally imposed quota of births for the town, county and province, exceeding which can harm officials’ careers.
(9) The financial consequences for a family of losing its SCP (for having more than one child) and/or of having SUC imposed (for having unauthorised children) and/or suffering disadvantages in terms of access to education, medical treatment, loss of employment, detriment to future employment etc will not, in general, reach the severity threshold to amount to persecution or serious harm or treatment in breach of Article 3.
(10) There are regular national campaigns to bring down the birth rates in provinces and local areas which have exceeded the permitted quota. Over-quota birth rates threaten the employment and future careers of birth control officials in those regions, and where there is a national campaign, can result in large scale unlawful crackdowns by local officials in a small number of provinces and areas. In such areas, during such large scale crackdowns, human rights abuses can and do occur, resulting in women, and sometimes men, being forcibly sterilised and pregnant women having their pregnancies forcibly terminated. The last such crackdown took place in spring 2010.
Risk factors
(11) In general, for female returnees, there is no real risk of forcible sterilisation or forcible termination in China. However, if a female returnee who has already had her permitted quota of children is being returned at a time when there is a crackdown in her ‘hukou’ area, accompanied by unlawful practices such as forced abortion or sterilisation, such a returnee would be at real risk of forcible sterilisation or, if she is pregnant at the time, of forcible termination of an unauthorised pregnancy. Outside of these times, such a female returnee may also be able to show an individual risk, notwithstanding the absence of a general risk, where there is credible evidence that she, or members of her family remaining in China, have been threatened with, or have suffered, serious adverse ill-treatment by reason of her breach of the family planning scheme.
(12) Where a female returnee is at real risk of forcible sterilisation or termination of pregnancy in her ‘hukou’ area, such risk is of persecution, serious harm and Article 3 ill-treatment. The respondent accepted that such risk would be by reason of a Refugee Convention reason, membership of a particular social group, 'women who gave birth in breach of China’s family planning scheme'.
(13) Male returnees do not, in general, face a real risk of forcible sterilisation, whether in their ‘hukou’ area or elsewhere, given the very low rate of sterilisation of males overall, and the even lower rate of forcible sterilisation.
Internal relocation
(14) Where a real risk exists in the ‘hukou’ area, it may be possible to avoid the risk by moving to a city. Millions of Chinese internal migrants, male and female, live and work in cities where they do not hold an ‘urban hukou’. Internal migrant women are required to stay in touch with their ‘hukou’ area and either return for tri-monthly pregnancy tests or else send back test results. The country evidence does not indicate a real risk of effective pursuit of internal migrant women leading to forcible family planning actions, sterilisation or termination, taking place in their city of migration. Therefore, internal relocation will, in almost all cases, avert the risk in the hukou area. However, internal relocation may not be safe where there is credible evidence of individual pursuit of the returnee or her family, outside the ‘hukou’ area. Whether it is unduly harsh to expect an individual returnee and her family to relocate in this way will be a question of fact in each case.
12. In particular, Miss Khan drew attention to a decision of the Australian Refugee Review Tribunal (RRT) referred to in AX at [146]:
146. In 0801099 [2008] RRTA 208, a decision of the Refugee Review Tribunal (RRT) dealing with the risk to single mothers on return to China, it held that 'women who have a child out of wedlock' constituted a particular social group, and that the risk was of a significant fine. The RRT considered the effect of such a fine on single mothers to be persecutory, particularly as the fine for unmarried mothers was higher than that for married couples with unauthorised children:
“126. China’s family planning laws and Regulations have as their ultimate objective the Regulation of population growth in that country. In itself, population control in China might be considered a legitimate object, the enforcement of which is designed to protect the general welfare of the Chinese state. However, the family planning laws and Regulations target not only those who exceed the permitted quota. They also specifically target women who have only a single child out of wedlock. Further, as is the case in Guangdong, they impose penalties on such mothers that exceed those of a married couple who have one child in excess of the permitted number. The Tribunal finds that the aspects of China’s family planning laws punishing women who have a single child out of wedlock are not appropriate and adapted to achieving the legitimate object of population control. In circumstances where they apply more severe penalties than those applying to married couples who have two children, the Tribunal does not consider that they satisfy the requirement of proportionality. In making these findings, the Tribunal also notes the observations of Merkel J in VTAO v MIMIA [2004] FCA 927, where he stated (at [41]), “A law of general application mandating the imposition of severe penalties on the mother irrespective of her personal circumstances may be regarded as a measure that, according to the standards of civil societies, is not appropriately adapted to achieving a legitimate object.”
13. Having heard the evidence and the submissions, I reserved my decision.
14. This appellant has two children who are twins. As I have said, I found her evidence to be evasive but, as Miss Khan submits, credibility is perhaps of little relevance here given that the respondent accepts that the children have been born out of wedlock. I accept the appellant’s candid statement before the Tribunal that she intends to marry her partner, the father of the twins. Indeed, given that that is her intention I assume that she will carry it out and that the family would return to China with both parents married to each other. It is unclear from the evidence whether such a marriage would have the effect of legitimising the children or whether it might overcome the problems which concerned the Australian Tribunal in the case to which I have referred above. The other difficulty is that the one-child policy no longer applies with the same rigour as before, a fact which perhaps diminishes the force of the judgment of the Australian Tribunal. In any event, as the Upper Tribunal observed in AX [147], the Australian tribunal itself had made different decisions on appeals involving similar facts and the jurisprudence of the tribunal does no more than illustrate the approach adopted by other judicial decision makers.
15. The appellant seeks to rely upon Dr Tran’s report which, taken together with the Australian case, she says should lead the Tribunal to find that her discriminatory and persecutory treatment on return to China renders her eligible for refugee status in the United Kingdom. The difficulty with that argument is that the weight which I find should attach to Dr Tran’s report is limited. Dr Tran’s failure to cite sources for some of the more forceful assertions in her report together with her tendency to lapse into advocacy which leads me to attach limited weight to her evidence. I have to say I am concerned also that her expertise appears to lie with matters Vietnamese rather than Chinese. Indeed, many of the sources which she does include in her report appear to be statistics regarding China which are readily obtainable from the internet. Ultimately, I find that the appellant and her partner will return to China as a married couple together with their two (twin) children. On the basis of the guidance provided by AX, the appellant may be fined but the evidence indicates that any fine would be proportionate to the appellant’s financial means. It is for the appellant to prove her case and, on the evidence which I have before me, including the report of Dr Tran, I am not satisfied that she has proved to the required standard that she would be exposed to a real risk of persecution or ill-treatment for the reasons which she claims. Her appeal is therefore dismissed.
Notice of Decision

This appeal is dismissed.

No anonymity direction is made.

Signed Date 28 February 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 28 February 2017

Upper Tribunal Judge Clive Lane