England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Scott-Baker)

		Royal Courts of Justice Strand London WC2 Monday, 21st January 2002

Monday, 21st January 2002

1. LORD JUSTICE DYSON: This applicant is a Chinese national. He entered the United Kingdom on 12th November 2000 illegally on a forged passport. He claimed asylum on the grounds that he feared persecution under the Chinese government's family planning and one child policy. He was interviewed in the usual way. His claim was rejected by the Secretary of State. He appealed to the adjudicator. On the advice of his then legal representatives he made written submissions, but on their advice did not appear, nor was he represented, before the adjudicator at the hearing. His appeal was dismissed. He was then issued with a "one-stop" notice, but did not state any additional grounds for wishing to enter the United Kingdom: see section 74(4) of the Immigration and Asylum Act 1999. The adjudicator did not find it credible that the applicant would be persecuted on account of the one child policy. The adjudicator said that the applicant's credibility was substantially undermined by his immigration history and identified a number of factors in the account given by the applicant which, she said, rendered his whole story implausible.
2. On 25th June 2001 he was detained pending his removal from the United Kingdom. On 6th July directions were given for his removal at 16:30 hours on 13th July. On 13th July the applicant's new solicitors wrote to the immigration service. They said that if the applicant were returned to China the applicant's rights under Article 3 of the European Convention on Human Rights would be violated. They put forward two new asylum grounds for the Secretary of State to consider. First, the applicant had incurred a debt of the equivalent of £23,000, borrowing money from loan sharks in order to finance his journey to the United Kingdom. It was said that on his return to China he would be unable to repay this sum and would not be protected by the Chinese authorities from brutal treatment at the hands of the loan sharks. That was the first ground of feared persecution. The second was that he would face imprisonment and a fine for illegally leaving China in the first place.
3. The Secretary of State responded on the same day. Having referred to the findings made by the adjudicator about the applicant's credibility, the Secretary of State wrote as follows:

"Both the Secretary of State and a special adjudicator found serious issues of credibility that went against your client and this throws into doubt the credibility of the issues that have only been raised in your letter of yesterday, some 24 hours before he was due to be removed. The Secretary of State has also drawn his attention to the China country assessment produced by his own Country Information and Policy Unit. At paragraph 6.102 it says;

`The experts have found no cases of harassment of deportees by snakeheads upon return, but have also stated that any harassment is unlikely to be reported to the authorities, on the grounds of being involved in a crime ... in the first place. Another expert has pointed out that harassing returnees is "bad for business" and deters prospective customers.'

At paragraph 6.105 the report says;

`The act of exiting mainland China without permission is an offence, and if this is the only unlawful act committed by the emigrant, then they are punished under Article 14 of the law of the People's Republic of China on the Exit and Entry of Citizens (1986) and thus "may be given a warning or placed in detention for not more than ten days by a public security organ.'

It continues at paragraph 6.107:

`One expert noted that the Chinese government does not generally mistreat returnees, unless the person has been deported to China more than once. If a returnee is held to be involved in the smuggling operation, then they are subject to the criminal procedure law.'

Notwithstanding the doubts the Secretary of State has regarding your client's credibility he is also satisfied that Article 3 would not be breached by your client's return to China. He is also firmly of the opinion that these are issues that could have been raised either for consideration by him or at the appeal before the special adjudicator. Given the lateness of the representations the Secretary of State is certifying your client's claim under section 73(8) of the Immigration and Asylum Act 1999, because he is satisfied that the purpose of making this application is to delay the removal of your client from the United Kingdom and that he had no other legitimate purpose for making it."

4. On behalf of the applicant Mr Juss challenges the lawfulness of the certificate under section 73(8). He submits that the certificate should not have been given so that the applicant should not be shut out from appealing to the adjudicator against the Secretary of State's refusal to grant asylum on the new grounds. He says that the applicant was not asked during his interview how he had financed his journey to the United Kingdom. Had he been asked, he could have mentioned his fear of ill-treatment by the loan sharks; similarly if he had attended the hearing before the adjudicator. He submits that the Secretary of State should have had regard to section 76(3), which envisages in relation to a claim that an act has breached an applicant's human rights that the Secretary of State has to consider whether an applicant who has failed to mention a particular ground has a reasonable excuse for that omission.
5. Finally, he submits that, given the background material available to him about snakeheads in China, the Secretary of State should have concluded on the facts of this case that there was a legitimate purpose for making the application on 13th July, and that the application was not made in order to delay the removal of the applicant from the United Kingdom.
6. In my judgment the Secretary of State was plainly entitled to reach the conclusion that he did. His finding that the purpose of making the application was to delay the applicant's removal and that there was no other legitimate purpose for making it were ones of fact. Mr Juss has shown no arguable error of law made in arriving at those findings.
7. This was a striking case. The applicant claimed asylum on a narrow and specific ground, which was rejected largely on the grounds that he was not believed either by the Secretary of State or the adjudicator. He was given at least two opportunities to say whether he had any other grounds for claiming asylum: first, at the interview and, secondly, in response to the "one-stop" notice. He took neither opportunity and then, only on the very day (or possibly the day before the day) on which he was to be removed from the United Kingdom, he advanced two wholly new grounds. In my judgment, it would have been surprising indeed if the Secretary of State had arrived at any other decision than the one he reached.
8. Mr Juss refers to section 76(3), and submits that the Secretary of State misdirected himself by failing to take the provisions of that subsection into account. In my judgment Scott Baker J was right to hold that section 76(3) was irrelevant to his consideration at this stage. It seems to me that section 76(3) is a provision which applies in relation to appeals and provides exceptions to the rule in section 76(2) that an applicant may not rely on a ground in an appeal unless that ground has been mentioned in his statement. But whether that is right or not, it seems to me that the view that was reached by the Secretary of State on the facts was unassailable.
9. I would reject this renewed application.
10. LORD JUSTICE LONGMORE: I agree.
Order: Application dismissed. Legal aid assessment of the applicant's costs.