Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05815/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 9 March 2017
On 29 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

K H
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Tuburu, T A Law
For the Respondent: Mrs H Aboni, Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.

Introduction
2. The appellant is a citizen of the Republic of China who was born on 18 January 1991. She arrived in the United Kingdom on 2 September 2009 with leave as a student which was subsequently extended on two occasions until May 2015. During the course of her leave, the appellant returned to China for three weeks in September 2013.
3. On 20 August 2015, the appellant claimed asylum. That application was refused on 15 May 2015.
4. The appellant appealed to the First-tier Tribunal (Judge Eames) which dismissed her appeal on all grounds in a decision promulgated on 8 August 2016.
5. The appellant was granted permission to appeal by the First-tier Tribunal (Judge Martins) on 31 August 2016.
6. On 24 January 2017, the Secretary of State filed a rule 24 notice seeking to uphold the judge’s decision.
The Judge’s Decision
7. The appellant’s claim was based on the fact that she and her partner in the UK had two children in breach of China’s family planning law. One child was 14 months old and the other 3 years and 9 months old. The latter child lived with the parents of the appellant’s partner in China. The appellant claimed that she had separated from her partner in the UK in July 2015. She feared that if she returned to China either her own father or her partner’s parents would abduct or take away her child. Further, as she was in breach of China’s planning law her circumstances on return would amount to a breach of her human rights, in particular she would be destitute and unable to pay any fine and might, as a result, be imprisoned.
8. Judge Eames did not accept, what he described as, the “four central strands to her claims of risk”, namely that she was single because her relationship with her partner had ended, there was a risk of her younger child being abducted; there was a risk of harm or ill-treatment to her and that she would be without financial support and risk destitution on return. Having made those findings, the judge dismissed the appellant’ appeal having set out at length the relevant country guidance decision in AX (family planning scheme) China CG [2012] UKUT 0097 (IAC) at paras 58-59 and 70 of his determination.
9. At para 60 the judge set out his findings as follows:
“60. In the following findings of primary fact, I have applied the lower standard of proof to the appellant’s assertions, namely whether there is a ‘reasonable chance’ or a ‘real risk’ of persecution or harm. I bear in mind that the burden is on the appellant. I find that:
(a) The appellant arrived in the UK on 3 September, 2009 on a student visa. She was supported financially by her father to come to the UK to study.
(b) She is the mother of two children: 14-month-old baby [CX] who is with her and in her care, and 3¾-year-old [ZX] who now lives with the appellant’s ex-partner’s parents in China. The appellant voluntarily agreed to [ZX] going to live with the appellant’s in-laws. Both children have the same father, with whom she was in a couple at the time she came to the UK and afterwards.
(c) She is a mother who has given birth in breach of China’s then family planning law as it applied at the time of the second birth.
(d) She has not proven to the lower standard of proof that her relationship with her baby’s father has ended or that his whereabouts are unknown, or that all contact has stopped between her and him.
(e) She has not proven either that there is any risk of him or his family wanting to abduct or in any other way take her baby from her.
(f) Nor has she shown that she herself is at risk from him or his family, of harm persecution or any other adverse consequences if she went back to China.
(g) I do not accept, again applying the lower standard of proof, that the appellant is at risk of destitution in China, or that she has no possibility of financing [CX’s] education and medical treatment.
(h) I find that on return to China the appellant is likely to face a degree difficulty from (i) the fact of her being in breach of Chinese family planning law, or (ii) issues arising from her being in an area where she does not have hukou authorisation – or both. But I find she is unlikely to be persecuted or harmed for those reasons.
(i) I follow the country guidance in AX, and find that breach of Chinese family planning law is a civil matter, not a criminal one. The appellant may risk the loss of her SCP certificate, denying her privileged access to schools, housing, pensions and free medical and contraceptive treatment, and requiring her to pay for education and medical treatment. She could encounter additional workplace discipline as well including financial penalties.”
10. The judge, therefore, did not accept the appellant’s claim to be single and, despite “a degree of difficulty” she might face, did not accept that the consequences for her on return amounted to persecution or serious ill-treatment. The judge did not accept that the appellant would be destitute because she would not have any financial support on return. Further, he did not accept that there was a risk that either her father or her partner’s parents would abduct her younger child. The judge gave detailed reasons at paras 61-71 as follows:
“61. In other words, I find that the appellant has not proven four central strands to her claims of risk:
that she is single
that there is a risk of abduction of her baby
that she is at risk of harm or ill-treatment etc.
that she is without financial support and risks destitution
62. The reason I find that none of those four claims is proven, to the lower standard of proof, is that the appellant has not particularised any of them. It is on her bare assertion that she asks me to find in her favour as to those facts.
63. Whilst I appreciate that it can be difficult to prove risk, and may be difficult to prove that a relationship has ended, it is nevertheless possible to produce indicative evidence (including oral evidence) that will throw light on some of those matters. The appellant does not point to any correspondence, telephone communication, detailed facts, conversations, reasons, assertions about the quality of the relationship, or any other detail at all that might assist her in her claim that her partner left without warning.
64. As to the risk to the baby, her claim is again completely unparticularised: in other words, beyond her stating her fear that the baby will be taken, she offers no further reasoning. There might, for example, have been conversations she had had with her in-laws or her partner to indicate that sort of risk. The might have been detailed facts about the way her in-laws fostered her older child which would have corroborated her fears at least a little. But there has been no such evidence put before me, other than, again, the appellant’s assertion of her worries.
65. On the question of harm or ill-treatment to herself, the appellant is not only unspecific about what risk she fears but has also been inconsistent, saying at one point that she fears harm and at other points that she agrees her life is not at risk from her in-laws. Again though, there is no specific evidence of behaviour on their part that would give rise to such a risk.
66. I agree with the respondent that the fact that she entrusted her older child to her in-laws, and sent her back to China to live with them, indicates a degree of trust and mutual respect. Although she might say that was then, and things have now changed, she does not suggest there was any coercion, yet does say that even then her in-laws did not like her. If that is so she nevertheless was happy to have her child fostered with them. She still seems happy with the arrangement – she did not say it was problematic for anyone. There are inconsistencies there. Her account of the older child living with the in-laws, even if that was arranged in happier times on her account, and the relationship between her and the in-laws, overall does not amount to evidence that there is a risk they would either kidnap the baby or harm or persecute her.
67. I also agree with the respondent’s general point that her claims in those three areas are speculative, indicating arguably a subjective fear but if so, one based on no objective evidence or indicators at all. It is not well-founded, in other words.
68. On the question of whether or not she has financial support or could access it, though she says she relied on her partner whilst they were together, the respondent has fairly suggested that it was her father who supported her in her student visa application, and that I can infer from this that he is solvent. I bear in mind that the appellant has not sought to challenge that view, even though she asserts he is ‘very traditional’, or to produce evidence that she would suffer financially in the way she suggests.
69. The result is that I find all four of those claims unproven to the lower standard. It follows that I do not find there are the risks of abduction of the baby or harm to, or persecution of, the appellant. I also do not find that she is single, and so I do not assess the risk to her of return to China as a single parent. I do not find she would face any acute financial hardship or destitution.
70. Of the risks she alleges then, the only claimed objective risk that remains in contention is that of her return to China as a parent in breach of China’s family planning laws, i.e. as a person with more than one child. I assess that chiefly by reference to paragraphs 8, 9 and 11 of the judgment in AX. They read
(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 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.
11. […] Outside [times when there is a crackdown in her ‘hukou’ area], a female returnee [who has already had her permitted quota of children] 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.
71. Financial consequences for families with unauthorised children do not amount to persecution or serious harm in general. Mr Tuburu has rightly acknowledged that is the starting point, but says the individual circumstance facing the appellant take her outside of the general guidance by the Upper Tribunal, bringing her into a special category in which she would be at risk. He has adduced a large amount of evidence which does indeed suggest conditions sometimes deteriorate for those in breach of the family planning laws. He also suggests, as particular to her case, that she would need to pay as a result of having an unauthorised child, that she would be unable to do so, and that this would put her in prison for non-payment. He has not substantiated that chain of logic however. It is in a sense speculative on his part. The financial factor is, as far as I can see, the only one which he contends takes this appellant outside the general level of risk discussed by the judges in AX. I do not find he has made a case on which I can base a view that the general guidance in AX should not apply to the appellant. As regards the particular analysis of paragraph 11 of AX, on the risks to returnees who have breached family planning law, similarly I do not find that 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.”
The Submissions
11. In his oral submissions, Mr Tuburu placed little or no reliance on the grounds upon which permission had generally been granted. Those grounds argue, in somewhat generalised terms, that the judge reached perverse or irrational findings or failed properly to take into account material matters in reaching those findings. In particular, it is said that the judge failed to consider the “objective evidence” or “materials”. No particular or specific parts of the material before the judge are identified in the grounds. Nevertheless, it is argued that the judge’s adverse credibility finding failed, in particular, to take into account the appellant’s evidence in her witness statement that she feared her father or “in-laws” would take away her son. Finally, the judge had failed to take into account that her relationship with her father had broken down when inferring that he would provide financial support for her.
12. Instead, Mr Tuburu developed a number of oral arguments. First, he submitted that the judge failed to apply the correct standard of proof. Secondly, he submitted that the judge failed properly to apply the country guidance case of AX in finding that the appellant had not established a breach of her human rights on the basis of the penalties she would face when she returned because of a breach of the Chinese family planning law. Mr Tuburu submitted that the judge was wrong to find that she had a “financial safety net” in her father who had paid for her to be a student in the UK since her evidence was that they were not now on speaking terms.
13. On behalf of the respondent, Mrs Aboni submitted that the judge properly applied the case of AX. He found the appellant not to be credible and rejected her evidence that she would not have financial support in China. Indeed, Mrs Aboni pointed out that the judge did not accept the appellant’s claim that she was a “single” parent because she had separated from her partner. She would, therefore, also have her partner to assist her on return to China. Mrs Aboni submitted that the judge was properly entitled to find that there was no risk to the appellant of her child being taken from her. She pointed out that the appellant’s older child was already living with the appellant’s in-laws and the appellant had not, in her evidence, identified any problems with her in-laws. It was properly open to the judge to find that there was no risk of her becoming destitute or that she would suffer any serious adverse consequences by reason of her breach of the family planning laws.
Discussion
14. I can deal briefly with Mr Tuburu’s first submission that the judge applied the wrong standard of proof. There is simply no basis for that submission. The judge correctly and clearly set out the lower standard of “a reasonable degree of likelihood” or “real risk” at paras 7 and 8 of his determination. In reaching his findings in para 60, he prefaced his finding on an application of the “lower standard of proof” which he then again set out. Nothing in the judge’s reasons gives any proper basis for the suggestion that he then went on and, in some way, failed to apply his own correct self-direction. I, therefore, reject Mr Tuburu’s first submission.
15. Mr Tuburu did not in his submissions seek to challenge the judge’s adverse finding that the appellant had failed to establish that her younger child was at risk of abduction by her father or in-laws. He was plainly right to do so. As the judge pointed out in para 64, this aspect of her claim was “completely unparticularised” and was unsupported other than by her statement that she feared her baby would be taken. The judge dealt with the circumstances in which her in-laws had, with her agreement, looked after her older child at para 66. The appellant did not suggest there had been any coercion and, to repeat the judge’s words, “she did not say it was problematic for anyone”. The judge’s reasons at paras 64-66 adequately and sufficiently explain the basis upon which he did not accept that the appellant had established a real risk based upon a risk from her father or in-laws of abducting her younger child.
16. Mr Tuburu’s submissions, instead, focused on whether the judge had properly concluded that the appellant fell outside the general position recognised in AX that there was no general risk to a female returnee in circumstances where the family planning laws had not been complied with.
17. The judge, as I have already noted, set out at some length at paras 58-59 and then at para 70 the relevant guidance in AX. The latter, in particular, was relevant because, as para 71 of the determination points out, Mr Tuburu had submitted that she would be at risk of the imposition of a financial penalty which she could not pay and therefore risked imprisonment. Mr Tuburu relied upon paras 11 and 18 of the appellant’s witness statement dated 20 July 2016. He relied on the fact that the appellant claimed that she had “fallen out” with her father and that therefore he could provide no financial support.
18. Whilst both paragraphs in the witness statement refer to that and that her father is “very traditional and I went against his wish and he thinks I have brought shame on him” (see para 11 of the witness statement), para 11 of the witness statement is, in fact, directed to the issue of whether her father would want to “give my son away” because she is not married. The judge found against the appellant on any risk derived from this claimed fear and nothing in Mr Tuburu’s submissions did, nor could, successfully challenge the judge’s finding in that regard. The appellant’s evidence in para 11 was not that she would be financially cast adrift by her family in China.
19. Looking at [11] of the headnote of AX, there was no evidence that she or members of her family in China had been threatened with or had suffered serious adverse ill-treatment by reason of her breach of the family planning laws. It was open to the judge to find that the appellant’s claim that she would be at risk of adverse treatment in the future was speculative. Mr Tuburu then, as before me, only relied upon the appellant’s financial circumstances so as to bring the appellant within a “special category” and outside the general position recognised in AX which would be adverse to the appellant’s claim. It was, notwithstanding the appellant’s claimed dispute with her father, open to the judge to find that she had not established that would be without the financial support necessary to avoid any adverse consequences amounting to serious ill-treatment through non-compliance with the family planning laws either from her father or her partner, given the judge’s finding that she had not established that her relationship with him had ended and upon which she had previously relied (see para 68 of the determination).
20. In my judgment, Judge Eames properly applied the country guidance case of AX and reached findings which took account of all the evidence and which were not perverse or irrational. On the basis of those findings, applying AX Judge Eames was entitled to find that the appellant had failed to establish that she was at risk on return to China.
Decision
21. For these reasons, the First-tier Tribunal’s decision to dismiss the appellant’s appeal on all grounds did not involve the making of an error of law. The decision stands.
22. Accordingly, the appellant’s appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date 27 March 2017