Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03623/2010

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th October 2016
On 17th November 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

H Z J (China)
(anonymity order made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Sane, Counsel, instructed by Jackson & Canter Solicitors
For the Respondent: Mr T Lindsay, a Senior Home Office Presenting Officer

DECISION AND REASONS
Anonymity
The First-tier Tribunal made an order pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008: unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall identify the original appellant, whether directly or indirectly. This order applies to, amongst others, all parties. Any failure to comply with this order could give rise to contempt of court proceedings.

1. The appellant appealed with leave against the decision of the First-tier Tribunal in Liverpool on 12 April 2010 dismissing his appeal against the respondent's refusal to grant him refugee status or subsidiary protection on the basis that he is a North Korean citizen who was brought up in China from the age of two. On 16 October 2009 the Secretary of State gave directions for his removal either to the People's Republic of China or to the Democratic Republic of Korea or the Republic of Korea, that is North Korea or South Korea.
2. Since the decision in this appeal in 2010, the country guidance has changed significantly. The Upper Tribunal has considered the risk to parents of unregistered children in China in AX (family planning scheme) China CG [2012] UKUT 97 (IAC), and the position of North Korean migrants if returned to South Korea in KK and others (Nationality: North Korea) Korea CG [2011] UKUT 92 (IAC) and GP & Others (South Korean citizenship) North Korea CG [2014] UKUT 391 (IAC). The decision of the First-tier Tribunal does not take any account of the guidance in those decisions because of course it was not available to the judge in the First-tier.
3. The appellant grew up in the People's Republic of China and has a Chinese citizen wife, and a child born in China in 2009, whom the First-tier Tribunal treated as a Chinese citizen. The citizenship of the appellant remains unclear, because the First-tier made no decision thereon. The possibilities are that he is actually a Chinese citizen, or that he is a citizen of both North Korea and South Korea, in common with all those originating on the Korean Peninsula, wherever they originate on the Peninsula.
4. For the respondent, Mr Lindsay confirmed at the hearing that the respondent accepts that if the appellant is originally from North Korea, he cannot be returned safely to North Korea, since the respondent does not dispute that those who have left North Korea are at risk of persecution if returned there.
5. It is also accepted on behalf of the respondent that there is in place a China-North Korea bilateral return agreement which effectively suspends the operation of the Refugee Convention between China and North Korea, such that a person who may be at risk on return to North Korea has no protection in China from refoulement to North Korea.
First-tier Tribunal decision
6. At paragraph 22 of its decision the First-tier Judge concluded:
"The appellant, his wife and child would be removed as a family unit. The wife and child are entitled, as Chinese citizens, to accompany him to China, and there is no evidence adduced that they could not, as family members, accompany him to South Korea. The decision does not therefore engage Article 8."
7. The challenge to the First-tier decision was the subject of an Upper Tribunal decision which was subsequently set aside by the Court of Appeal, which remitted the appeal to the Upper Tribunal on the basis of the risk of refoulement from China to North Korea by the Chinese authorities that was considered in GP (South Korea). The effect of that decision is that the Upper Tribunal now has the error of law decision to make again.
Discussion
8. There are four possible scenarios, depending on the appellant's nationality and history, which is a question of fact on which findings still need to be made:
(a) If the appellant's account of his circumstances is true, and he is a North Korean who has been ordinarily resident in China for almost all his life before coming to the United Kingdom, the appellant cannot be returned to North Korea, nor to China, because it is accepted that return to China would expose him to a real risk of refoulement to North Korea, and to persecution there.
(b) If he is a Chinese citizen with a Chinese wife and child, further factual findings will need to be made concerning the risk on return for him, his wife and child, applying the AX guidance.
(c) If he is a South Korean citizen claiming to be from North Korea, then the appellant can be lawfully returned to South Korea, but there has been no consideration as to whether, in law or in practice, his Chinese wife and child will be allowed to go to South Korea and live there with him.
(d) If the appellant is originally from North Korea, neither the First-tier Tribunal nor the Court of Appeal has had the opportunity of considering whether he and his family can return to South Korea together, subject to the JIC and Hanawon process as set out in GP (South Korea).
9. If either (c) or (d) is the correct factual matrix, there is a need to examine carefully the rights of South Koreans to bring with them their spouses of another nationality and also of the citizenship of children born to citizens of South Korea, born while they were living in China, or elsewhere outside the Korean Peninsula.
10. There are therefore numerous factual issues which require evidence before this decision can be remade. It is now 6 years since the last hearing in the First-tier Tribunal, and there may well be other considerations concerning the best interests of the appellant's child, and the application of part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended).
11. I set aside the decision of the First-tier Tribunal with no findings of fact preserved and remit this appeal for consideration afresh in the First-tier Tribunal on a date to be fixed. A Mandarin interpreter will be required. The appeal is to be heard in the Manchester hearing centre if possible.

Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision. The decision will be remade in the First-tier Tribunal on a date to be fixed.

Signed: Judith A J C Gleeson Date: 16 November 2016
Upper Tribunal Judge Gleeson