England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Friday, 26th April 2002

1. LORD JUSTICE WARD: This is the renewal of an application for permission to appeal the decision of the Immigration Appeal Tribunal, which upheld the decision of an adjudicator, in turn confirming the decision of the Secretary of State, that the applicant was not entitled to asylum.
2. The applicant is a Chinese national. She became an adherent of the faith (or possibly only the practice) of Falun Gong. That movement does not meet with the full favour of the Chinese government and many of its followers have been (in the quaint words I have read) "persecuted to death".
3. The application for permission is renewed on one ground only. I will quote that ground as it was put to the Immigration Appeal Tribunal as main issue (iv):

"Is it open in law for an adjudicator or the Tribunal (or any court) to find that an asylum seeker can safely be returned on the basis she would need to modify or restrict the expressions of her convictions? Or instead is the court bound to determine the safety of an asylum seeker on the basis of her beliefs (and expressions thereof) as they are?"

4. The findings in this case are summarily set out by the Immigration Appeal Tribunal. It was accepted that the applicant was a Falun Gong practitioner, though the scale of her allegiance was quite modest in that she had apparently only joined that group on 25th June 2000 and was arrested, she said, on 13th August 2000. She gave evidence (as set out in paragraphs 21 to 23 of the adjudicator's determination) that:

"... she practised Falun Gong three or four times a month, in different places, such as a quiet room, and remote places. She practised with friends she did not know."

5. She said that she practised with others in empty and dilapidated houses in order that they would not be disturbed, and there were 40 or 50 of them in her group. That part of her evidence appears to have been accepted.
6. The reason for finding that she was not in fear of persecution appears arguably to be based upon this premise (as set out in paragraph 11 of the Immigration Appeal Tribunal's judgment): that nothing would prevent the appellant from continuing to practise "exercises" alone and in private if she were to return to China. It is further suggested that, if she were to do so in that way, she would not be at serious risk of prosecution.
7. Arguably it seems to me that the structure of the judgment is this:

(1)Her actual practice in the past was a public one.

(2)The tribunal accept that she could practise privately.

(3)If she does practise privately, she is not at risk.

(4)The inference would therefore be that if she did practise publicly she would be at risk.

8. So the point which arises, on which I would be inclined to give permission to appeal, is whether it is correct that one can impose that restriction upon her practice.
9. Miss Baruah, who today appears on her behalf and who has not been in the case hitherto, has drawn our attention to the cases of Thomas Danian v Secretary of State for the Home Department [1999] INLR 533 and Iftikhar Ahmed v Secretary of State for the Home Department [2000] INLR 1, and particularly to the judgment of Simon Brown LJ in the latter case. It seems to me that there is some sufficient force in the argument that, even if the asylum seeker behaves unreasonably (and query whether it would be unreasonable in these circumstances for her to practise in public), nonetheless, if that unreasonable behaviour causes an applicant to be at risk of persecution, the court ought not to send the applicant back. I hope that is a modestly accurate precis of Simon Brown LJ's wisdom.
10. As I have indicated, I would have been inclined to give permission on that ground alone. But, as is apparent from this short judgment, I have used various words to describe Falun Gong. I have spoken of it as a religion; I have spoken of it as a social group; I have spoken of it as a political movement; and at the moment I do not know which one of those categories is truly applicable to Falun Gong, or whether all three might not be applicable. The Appeal Tribunal appear to have had to approach the case on the assumption that it is a religion, though that may be open to challenge. If it is a religion, then there is additional force in the argument that one's fundamental human right is to practise that religion freely, and to require the practise of a religion in isolation in the loneliness of one's room might be a breach of article 9. Even if it is a social group, I am not sure how one can be a member of a social group if one is again a lonely individual; and even to be a member of a political group and exercise political opinion may not be possible locked in isolated seclusion.
11. It seems to me, therefore, that it is important at least to consider the underlying position of Falun Gong. In order that that might better be established, I would prefer that we adjourn this application to be listed on notice to the Home Department in order that they may consider the position again. We are told that there are many seekers of asylum who practise Falun Gong and, if the true category into which those applicants should fall has not yet been determined, perhaps it is high time that it should be. In order, therefore, to give the Home Office an opportunity to address that position in advance of a full hearing before this court, I would rather adjourn it and hear the Home Office on all of those issues.
12. A copy of this judgment should be made available to the Secretary of State. It would probably assist everybody if a skeleton argument prepared by the Secretary of State was served on the applicant well in advance of the hearing date, so that Miss Baruah can conduct her own research and be able to deal with the issue as the Home Office perceives it to be. This is not a direction: it is a request that the Home Secretary co-operate as much as possible to clarify the position before it comes back to this court on the next occasion.
13. LORD JUSTICE SEDLEY: I share my Lord's view. It was I who initially refused permission to appeal on the papers, but I am satisfied that the issue which has now been crystallised by Miss Baruah may be a viable issue. I say "may be" because, until it has been decided whether or not Falun Gong comes within one of the Convention protected categories, no concrete result can be arrived at in this or any other case. For that reason I am entirely in accord with the course proposed by my Lord.
Order: application adjourned to be listed on notice to the Home Department; transcript of judgment to be made available to Secretary of State; public funded costs assessment of applicant's costs.