Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005638

On appeal from PA/60856/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of March 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE KIRK

Between

HC
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms P Panagiotopoulou of counsel
For the Respondent: Mr E Tufan, a Senior Home Office Presenting Officer

Heard at Field House on 6 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Appellant is a national of the People’s Republic of China (‘China’). She appeals against the decision of the Respondent dated 20 October 2023 to refuse her application for asylum.
2. In a decision which was promulgated on 14 October 2024, following a hearing in the First-tier Tribunal on 18 September 2024, Judge Hussain (‘the Judge’) dismissed the Appellant’s appeal.
3. On 5 December 2024, First-tier Tribunal Judge Le Grys granted the Appellant permission to appeal to the Upper Tribunal on two of the three grounds raised.
Background
4. The Appellant left China on 30 November 2017 and arrived in the United Kingdom (‘UK’) on the same date.
5. On 2 September 2019 she was served with a notice to an illegal entrant and on the same day she applied for asylum.
6. The Appellant claimed that in or around 2010 she started working in a massage parlour in Guang Gxi where she was introduced into sex work. She managed to escape in 2011 or 2012 when she started a new job selling clothes. From 2012-2017 she was in hiding. In 2014 she received a call from the owner of the parlour who told her that he knew where she was. She then moved to another city.
7. In 2017 the Appellant met a man who told her he would assist her to leave China and would arrange a job for her in the UK. She paid him 30,000 RMB as a deposit for him to make her travel arrangements and he told her she could pay him the remaining money when she started working. Sometime later he contacted the Appellant and told her to meet him at the airport and they travelled to Ireland where they stayed for one day. He then handed her over to another man who brought her to the UK. After they had cleared immigration, the man took her passport, and she told him she needed to use the toilet. She did not go to the agreed meeting point after visiting the toilet and she escaped the man. If returned to China, the Appellant fears she will be exploited by the men who used her and to whom she owed money, or by others who will exploit her.
Respondent’s decision
8. As summarised in the Judge’s decision at [7]-[25], the Respondent refused the application for the following reasons:
Reasons for refusal
7. The respondent’s grounds and reasons for refusing the appellant’s application are set out in the refusal letter. She appears to accept that the appellant is a member of a Particular Social Group and is of the identity and nationality claimed by her. However, she refused to accept that the appellant was the victim of exploitation in China or owed money to an unknown man who brought her to this country.
8. The respondent’s reasons for not accepting the appellant’s account were given for the following reasons.
9. The appellant lacked in detail regarding the owner of the massage parlour which she would be expected to know as she worked there for approximately one or two years. She could not provide details such as his actual name, accurate description of him and if he had any other business. She was unable to give the name of the parlour, just describing it as a not big massage parlour.
10. The respondent considered it ‘internally inconsistent’ that after her last contact with the owner of the parlour, he would be able to contact her on the telephone in 2014 despite having changed her phone number and remote location. She also managed to stay in China for a further three years until 2017 without further issue. It was implausible that the appellant would be a victim of exploitation in China, but be unable to name specific details such as those of other employees, name of the premises, daily routines or how she was able to escape the owner of the massage parlour.
11. The appellant stated that she fears her daughter will end up in the same line of work if returned to China. This was externally ‘inconsistent’ with Section 7.1.3 of CPIN CHN Modern Slavery which states that Chinese authorities have implemented measures to ensure children of migrant workers have access to compulsory education and quality education programmes.
12. The appellant lacked detail regarding the man who brought her to the UK. She was unable to provide the respondent as to where he is currently based, his name or which airport he was at, however, she was able to disclose the date she last saw the man which was in 2017.
13. The respondent also noted that the last time the appellant saw the owner of the parlour was in 2017 therefore it was implausible that he would still be looking for her given the substantial lapse of time. It was internally inconsistent that she would have the option to refuse the work offered to her considering the amount of money she borrowed to come to the UK.
14. The respondent then attacked the appellant’s credibility relying on Section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004. This is because she failed to claim asylum in Ireland before arriving here, stating that she did not know that she could claim asylum there. Her explanation was not accepted as being reasonable because Ireland is a safe country. This impacted her claim and her credibility was damaged.
15. The respondent did not accept that there was a real risk on return because the material facts of her claim has not been accepted. The fear of harm from the parlour owner was localised. She has not demonstrated how his power would reach the whole of China.
16. In assessing the appellant’s claim the respondent took into account the upper tribunal decision in HC and RC (Trafficked Women) China CG [2009] UKAIT00027 which held that women and girls in China do not in general face a real risk of serious harm from traffickers.
17. The respondent then asserted that even if the appellant’s claims had been accepted, there would be sufficient protection from persecution in her country of origin. In making this claim the respondent relied on the CPIN referred to above.
18. Additionally, the respondent claimed that the appellant could relocate to Beijing, Shanghai or Tianjin within China. There is general freedom of movement in the country. The appellant was of Han ethnicity and the Home Office country guidance note stated that linguistic and cultural barriers were not an inhibiting factor for ethnically Han Chinese to move away from their place of Huko registration.
19. The person the appellant feared was a non-state actor. She has failed to demonstrate that it was reasonably likely that they have sufficient power or influence to be able to locate her anywhere in China. By her own admission, she was unsure if the parlour owner has influence over the authorities or the police. Therefore, she would be able to move to another location to escape the localised threat. The appellant also spoke Mandarin and has employment experience. China has a total area of 9,596,960 square kilometres and of its population some 91.6% were Han and spoke Mandarin. The appellant could benefit from the £3000 reintegration assistance offered by the Home Office.
20. Therefore, the appellant could reasonably return and remain in China without any further problems or harm from the owner of the parlour.
21. The respondent also concluded that the appellant did not qualify for humanitarian protection.
22. The respondent then considered the appellant’s family and private life. She noted that the appellant does not have a partner in this country. Her child does not meet the residency requirements because she has not lived here for at least seven years immediately before the date of application.
23. The respondent took into account the welfare of the appellant’s child but concluded nevertheless it was appropriate to remove them both because Section 7.1.3 of CPIN (referred to above) indicated that the Chinese authorities have implemented measures to ensure that children of migrant workers have access to compulsory education and quality education program. Therefore, the appellant’s three year old child would be able to access education with support from her.
24. The respondent then considered the appellant’s private life under the terms of paragraph 276ADE. The appellant was found not to meet any of its requirements. In relation to the requirement in sub paragraph (vi), the appellant has not demonstrated that there are very significant obstacles to her integration into China. She is a relatively healthy female who has received basic education in China and has work experience. She also spoke Mandarin which is the main language of the country.
25. Finally, the respondent considered whether to grant discretionary leave because the appellant suffers from depression although claimed to have been diagnosed by a GP, there is no evidence submitted to support this. In any event the appellant’s conviction does not reach the threshold set out in AM (Article 3, Health Cases) Zimbabwe [2022] UKUT 131. Appropriate medical treatment is available in China and once again referring to the same country guidance note, the respondent asserted that psychiatric crises intervention is available for victims of PTSD and sexual abuse at the Seventh People’s Hospital of Hangzhou and a wide variety of medication was also publicly available to help with depression.
First-tier Tribunal decision
9. The Appellant appealed against the Respondent’s decision and the appeal came before the Judge on 18 September 2024.
10. At the commencement of the hearing, counsel for the Appellant told the Judge that the Respondent had made a decision that there were reasonable grounds to believe that the Appellant was a victim of modern slavery on 13 March 2024. Counsel for the Respondent indicated to the Judge that he would not challenge the Appellant’s claim that she was sexually exploited between 2010 to 2011.
11. The parties agreed and the Judge accepted that the only issue remaining to be adjudicated was whether or not there is a risk of the Appellant being exploited on return to China.
12. In a decision dated 14 October 2024 (‘the Decision’) the Judge dismissed the Appellant’s appeal. The Judge concluded that there was no evidential basis on which the Appellant could have either a subjective or an objective fear of being returned to sexual exploitation (at [55]). If the Appellant were to be threatened again by the parlour owner, there is no reason why she could not seek protection from the authorities in China (at [56]). The Judge further found that the Appellant’s fear of the man who brought her to the UK “lacked detail and in some cases seemed to be completely implausible” (at [58]-[62]) and there was no evidential basis on which she could fear this person will harm her because part of the debt she owes him remains unpaid. The Judge concluded that the Appellant had not established that she has a well-founded fear of being persecuted on return to China at the hands of the parlour owner or the person who brought her to the UK (at [63]).
13. In relation to the Appellant’s private life claim, the Judge noted that she has a child born in the UK, and the child’s father sees the child on a regular basis. The Judge was not satisfied that it would be disproportionate to remove the Appellant and her child from the UK (at [64]).
Permission to appeal to Upper Tribunal
14. The Appellant applied for permission to appeal to the Upper Tribunal. The Appellant submitted that the Judge erred in:
1) Failing to have regard to the Appellant’s vulnerability when assessing the risk on return, internal relocation, and obstacles to re-integration
2) Failing to assess the risk of re-trafficking by other individuals
3) Failing to assess the claim by reference to the Appellant’s country background evidence.
15. Permission was part granted by the First-tier Tribunal on the following grounds:
Ground one is arguable. The decision did not record any findings on whether the Appellant is a vulnerable witness. It is therefore unclear what impact, if any, the Appellant’s claimed vulnerability had on the Judge’s assessment of her evidence and, if so, that such an omission is contrary to the see Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance (‘Presidential Guidance’) (‘the Presidential Guidance’).
Ground two is arguable. The decision assesses the risk to the Appellant from the original traffickers but arguably does not consider the wider risk that might arise as a result of her past experiences, that history having been conceded. It is arguable that the Judge has therefore not assessed a core element of the Appellant’s claim as to why she would be at risk on return.
Upper Tribunal hearing and submissions
16. The oral and written submissions at the hearing are a matter of record and need not be set out in full here. We had access to all the documents before the First-tier Tribunal and the composite bundle filed by the Appellant.
17. We heard submissions from Ms Panagiotopoulou for the Appellant and Mr Tufan for the Respondent, which we have fully taken into account.
Consideration of appeal grounds
Ground 1 – Vulnerable witness
18. The Presidential Guidance was not referred to in the Appellant’s skeleton argument, but Ms Panagiotopoulou informed us that an application was made to the Judge at the hearing to apply the Guidance and find the Appellant to be a vulnerable witness. There is no express reference to the Presidential Guidance in the Judge’s decision.
19. In JL (medical reports-credibility) China [2013] UKUT 00145 (IAC) (‘JL China’), the Upper Tribunal found at [26] that it is incumbent upon judges to apply the Presidential Guidance. It referred to paragraph [15] of the Presidential Guidance which states:
The decision should record whether the Tribunal has concluded the appellant (or a witness) is a child, vulnerable or sensitive, the effect the Tribunal considered that the identified vulnerability had in assessing the evidence before it, and thus whether the Tribunal was satisfied whether the appellant had established his or her case to the relevant standard of proof. In asylum appeals, weight should be given to objective indications of risk rather than necessarily to a state of mind.
20. The approach in JL (China) was approved by the Court of Appeal in AM (Afghanistan) v Secretary of State for the Home Department (‘AM (Afghanistan’) [2017] EWCA Civ 1123. Sir Ernest Ryder referred to the Presidential Guidance (and also the Practice Direction, First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses as follows at [30]:
The directions and guidance contained in them are to be followed (…) Failure to follow them will most likely be a material error of law
21. In line with JL (China) and the Presidential Guidance, it was incumbent upon the Judge to:
(a) make an express finding whether the Appellant was vulnerable in the context of the Presidential Guidance and in what sense; and
(b) consider what impact her vulnerability had on the assessment of her evidence.
22. The Decision makes no express finding in respect of the Appellant’s vulnerability. The Judge failed to reach a finding as to whether she suffers from PTSD or is otherwise vulnerable, or how that vulnerability may have impacted on her evidence. There is no reference in the Decision to the Presidential Guidance nor to JL (China) or AM (Afghanistan). There is nothing to indicate that the Judge considered the Appellant’s vulnerability when considering her evidence. We find that the failure to do so amounts to a material error of law.
Ground 2: Risk of re-trafficking from other individuals
23. We are also satisfied that the Judge failed to consider whether there was a risk to the Appellant of re-trafficking from other individuals. The Judge limited his consideration to whether the Appellant would be at risk from the parlour owner or the person who brought her to the UK. It is the Appellant’s case that her vulnerabilities means that she is at risk of exploitation more generally. We are satisfied that the Judge materially erred by failing to determine this aspect of the Appellant’s case.
24. For the reasons outlined above we are satisfied that the Judge materially erred in law and set the decision aside in its entirety. No findings of fact can be preserved.
Remittal to First-tier Tribunal
25. In deciding to remit this appeal to the First-tier Tribunal to be remade, we have taken into account the guidance in Part 3, paragraph 7 of the Senior President of Tribunals’ Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC).
26. We are satisfied there are no findings that can be preserved and the extent of the fact-finding necessary means that it is appropriate to remit this matter to be reheard in the First-tier Tribunal.   

Notice of Decision
27. The Decision of the First-tier Tribunal involved the making of a material error of law.
28. The Decision of the First-tier Tribunal dated 14 October 2024 is set aside.
29. The appeal is remitted to the First-tier Tribunal to be heard by a different judge with no findings of facts preserved.

Linda Kirk

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 8 March 2025