England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London WC2A 2LL
		29 January 2015

1. LORD JUSTICE BRIGGS: On 26 August 2014 the Upper Tribunal dismissed the combined appeals of MP and GP and his wife and child against two decisions of the First Tier Tribunal, both of which, in effect, rejected the appellants' claims to asylum and humanitarian protection.
2. Although MP is an unmarried individual whereas GP is part of a family the circumstances of the appellants have the following strong similarities. They are all North Korean citizens and they escaped from North Korea less than ten years, ultimately to the United Kingdom. All have been found to have a well-founded fear of persecution if returned to North Korea, having escaped from there illegally. All have been refused asylum or humanitarian protection in the UK and, subject to directions by the Secretary of State, may be returned to South Korea. None of them have ever resided in South Korea and none of them wish to go to seek protection in South Korea, nor have they applied to South Korea to do so. Rather, they all prefer to seek protection in the UK.
3. It is common ground that as a matter of South Korean law, which is the relevant law for this purpose, all the appellants are also South Korean citizens because of their birth in the Korean Peninsula, which includes, of course, North Korea, and their North Korean parentage. This is because South Korea regards itself as having sovereignty over the whole of the Korean Peninsula so that all North Korean citizens are also its citizens.
4. They all have a right to apply to South Korea to obtain the benefits of South Korean citizenship, including a right to protection and a right to live there without fear of persecution, see generally KK and Ors, (nationality: North Korea), Korea Country Guidance [2011] UKUT 92, but the practical exercise of these rights is dependent upon them making the appropriate application, which may be initiated from the UK, stating a wish to reside there, not simultaneously pursuing asylum elsewhere and eventually taking an oath of loyalty to South Korea. They would be required to undergo a roughly 120 day period of detention on arrival in South Korea during which their claims to be citizens entitled to such rights would be rigorously tested and, if accepted, they are then given education and training to acclimatise themselves to a life in South Korea. I will call the whole of that the Protection Procedure. Thereafter, if successful, they receive full citizenship rights in South Korea and some financial support.
5. The main reason why the appellants' claim to asylum and humanitarian protection have thus far been unsuccessful in the UK is that each of them have been found to have failed, without good reason, to avail themselves of the protection of South Korea of which they are, on the facts found, already nationals in accordance with South Korean law. This is because they have not applied under the South Korean Protection Procedure to prove their nationality and exercise their rights to residence and protection there.
6. The definition of "refugee" in article 1A(2) of the Refugee Convention would only apply to these appellants if they could show that their unwillingness to go to South Korea was based on a well-founded fear of persecution if sent there. See MA (Ethiopia) [2004] UKIAT 324 and in the Court of Appeal [2009] EWCA Civ 289 at paragraphs 49 to 52 as applied to SKP from North Korea in Secretary of State v SP (North Korea) [2012] EWCA Civ 114.
7. In that case the applicants for asylum had applied to South Korea under the Protection Procedure but were found by the Upper Tribunal to have minimal prospects of success due to their absence from the Korean Peninsula for more than ten years, mainly in China. In the present case none of the appellants have been absent from the Korean Peninsula for ten years so that the difficulties which face the applicants in invoking the Protection Procedure in the SP case do not affect them.
8. The main issue raised by these appeals is whether the Protection Procedure places such obstacles in the way of a supposedly unwilling North Korean applicant for South Korean protection that the basis for the rejection of their claims to asylum here, as I have just described it, is undermined.
9. This is advanced in two mains ways. First, MP says that the obstacles to his effective exercise of nationality rights in South Korea are at present so substantial that he cannot in substance yet be said to be a national of South Korea at all. He does not wish to avail himself of South Korean citizenship rights or take an oath off allegiance and he is actively pursuing an asylum application here.
10. Secondly, both MP and GP say that 120 days detention in South Korea, which would inevitably flow from an application by them under the Protection Procedure, would threaten their freedom on account of their North Korean nationality, contrary to Article 33.1 of the Refugee Convention and that they would no access to a lawyer while detained or practicable means of challenging extradition, for example, to China, if that was the outcome of the Protection Procedure in relation to them.
11. MP says that requiring him to submit to the Protection Procedure would also infringe his Article 32 rights as interpreted by EU law, while GP says that the effect of the Protection Procedure on himself and his family would infringe their Article 3 rights under the Human Rights Convention mainly because they would be kept separate from each other while in detention and because such a period of detention for their (now two) children would be contrary to Section 55 of the Borders, Citizenship and Immigration Act 2009.
12. By a very recent amendment to his appellant's notice, which we allowed, GP has rolled up all his objections to the Protection Procedure into a general claim that it would not be reasonable for him to seek to exercise his nationality rights in South Korea as a condition for seeking asylum here and that the FTT and the Upper Tribunal have both failed to address the question of reasonableness as required to do so both by rule 339J(v) and by the analysis in the MA (Ethiopia) case to which I have referred.
13. Further, MP says that the Upper Tribunal wrongly held that he had neglected the advantage of a fast track return to South Korea under the UK South Korea Re-admission Agreement largely because of an illegitimate finding of fact, contrary to the findings of the First Tier Tribunal, that he had already been in South Korea and fingerprinted there. This would only avail him if he also succeeded on his main ground of appeal.
14. Finally MP advances a claim under Article 8, which has not been pursued on this oral application but is nonetheless in the grounds of appeal.
15. The Upper Tribunal decision from which the appellants seek permission to appeal also gave North Korean Country Guidance by confirming, with significant amendments, the Country Guidance in the KK case. We are told there are a number of North Korean cases currently awaiting the outcome of this appeal.
16. These are, of course, second appeals. The appellants must show a reasonable prospect of success on an important point of principle or practice or some other compelling reasons why the appeal should be heard.
17. The fact that the decision appealed gave Country Guidance and that other cases are hanging on the outcome is not, in my view, of itself and alone a compelling reason for giving permission but, of course, it is true that if there is a full appeal in a Country Guidance case the Country Guidance will be scrutinised with rigour. See KS (Burma) v Secretary of State for the Home Department [2013] EWCA Civ 67 at paragraphs 19 to 21.

Analysis

18. One of the main grounds is that the appellants are not yet nationals of South Korea. Mr Karnik for MP relies on a series of authorities from the Upper Tribunal and elsewhere for the proposition that nationality under the Refugee Convention means effective rather than purely theoretical nationality and submits that the obstacles facing MP under the Protection Procedure are such that at the relevant time, ie, now, (see Secretary of State v Al-Jedda [2013] UKSC 62), he is no more than a South Korean national in theory. He would have to prove all over again his North Korean origin in the Protection Procedure since South Korea would not regard itself bound by the UK court's findings. He would have to state falsely that he wants to exercise South Korean citizenship rights and reside in South Korea. Currently has cannot even apply under the Protection Procedure because he is actively pursuing asylum here.
19. The Upper Tribunal treated the Court of Appeal's dicta in MA (Ethiopia) as conclusive against this ground. The requirement to cooperate in seeking admission to any country of which he was a national as a pre-condition of seeking asylum here meant that the appellants would have to make a genuine application to South Korea under the Protection Procedure and could not be considered for asylum here unless they did so. A strong preference to come here was irrelevant. The First Tier Tribunal found that, in fact, MP would not continue to assert a disinclination to settle in South Korea if that became his only option and the First Tier Tribunal did not regard GP's stated reason for his disinclination to seek South Korean protection, namely, a fear that if he did so his family, who remain in North Korea, would be persecuted, as objectively justified for reasons which are not challenged on appeal.
20. I can see no arguable basis for a successful appeal against this part of the Upper Tribunal's analysis. It is, in my view, squarely in line with the decisions of this court in MA (Ethiopia) and SP (North Korea). In the latter case the appellants had made a genuine application to invoke the Protection Procedure in South Korea but failed to do so successfully because of their absence from the Korean Peninsula for well over ten years. Here the appellants face no such obstacle. Their difficulties are entirely of their own making and were, in any event, rejected by the relevant Tribunals on facts.
21. The second main ground is that the Protection Procedure infringes the appellants' rights under the Refugee Convention and the Human Right Convention and the children's interests, so that it would not be reasonable to expect the appellants to invoke the Protection Procedure as a condition for seeking asylum.
22. The Tribunals rejected these points, to the extent that they were actually raised, after considering a wealth of mainly expert evidence about the Protection Procedure. They found that temporary detention while a nationality claim is investigated is not in itself contrary to Article 3, nor a deprivation of freedom under Article 33. They relied, as they were entitled to, upon the absence of any significant record of claims, let alone findings, that the Protection Procedure involved any abuse of their Human Rights or that anyone other than those sent back to China as Chinese nationals were, in fact, deported from North Korea at the end of the process.
23. The only submission as to reasonableness put forward by GP and his family to the First Tier Tribunal was that it would not be reasonable to force them to seek the protection of a country which was not their country of origin, as recorded in paragraph 9 of the Decision. No submission was made that the rigours of the Protection Procedure made it unreasonable.
24. In the Upper Tribunal the objection to the Protection Procedure was only that it amounted to a deprivation of liberty under Article 33 and to inhuman treatment under Article 3. No other basis for a case that it would be unreasonable to expect them to invoke the Protection Procedure was put forward and the Upper Tribunal rejected the two specific bases advanced on their consideration of the facts.
25. Although no specific case under Section 55 of the 2009 Act was advanced in the Upper Tribunal it specifically considered the children's interests at (paragraph 133) and specifically rejected the case put forward, that they would be separated from their parents under the Protection Procedure, for lack of evidence. The Upper Tribunal took into account Dr Wang's report in which he recorded some information which he learned, as it were on the grapevine that those in the Procedure were kept separate. He inferred that, therefore, children would also be separated from their mothers. Nonetheless the Tribunal rejected that part of Dr Wang's evidence.
26. For my part I cannot envisage any real prospect of success in appealing this part of the Upper Tribunal's analysis based as it was upon careful factual findings and disclosing no arguable error of law. The question whether it would be reasonable for the appellants to invoke the Protection Procedure for their protection was neither raised in express terms on any wider basis than loss of liberty and inhuman treatment and it is inherent, in my view, in the Upper Tribunal's determination, made after a careful consideration of the relevant passages in MA (Ethiopia), that it was not unreasonable for the appellants to be required to do so.
27. I turn to MP's additional grounds. In my view no important point of practice or principle arises from the issue whether fingerprinting records of MP on the South Korean database triggers the fast track process under the Re-admission Agreement or whether the Upper Tribunal was wrong to find that MP must have been fingerprinted in South Korea rather than, as he alleged, in a South Korean consulate in China. Both the points do, however, satisfy the reasonable prospect of success test viewed on their own, but, if my Lady agrees, this ground will not avail MP in the light of my rejection of his earlier and main grounds. Even if the fast track return route under the Re-admission Agreement is not, in fact, available to him he still failed to invoke the Protection Procedure and that must, in my view, be fatal to any successful outcome to his appeal.
28. I regard MP's Article 8 appeal as truly hopeless. Even if Article 8 is engaged it is plainly not a disproportionate interference with his Article 8 rights for the UK to apply its immigration and asylum law in relation to him on the particular facts of this case.
29. For all those reasons I would refuse permission to appeal.
30. There is, therefore, no need to identify those parts of the Country Guidance which might be affected. I would, however, prefer to say nothing about the Upper Tribunal's amendment of its Country Guidance in relation to those who have been out of the Korean Peninsula for more than ten years. That does not arise on the facts of this case and any challenge to that amendment must await a case on which it could affect the outcome.

LADY JUSTICE GLOSTER

31. I agree that permission to appeal should not be given in either of these two cases.
32. In relation to the point taken by Mr Howells in relation to the alleged failure by the Upper Tribunal to consider whether it was reasonable to require the appellant to return to South Korea and submit to the Protection Procedure, I also reject his argument.
33. The Upper Tribunal expressly concluded in paragraph 133 of the judgment that:

"There is no evidence before us which establishes that the appellants' children would be separated from their parents during the Protection Procedure or that there exists any other factor making it inappropriate to return these particular children to South Korea with their parents."

34. The evidence upon which Mr Howells sought to rely of Dr Wang did not, in my view, go anything like as far as to say, or even, contrary to my Lord's view, to imply, that children would be separated from their parents. All he said at paragraph 5.12.2 of his report was:

"According to what I have heard from my clients and from a couple of senior researchers of the Korean Institute for National Unification, a governmental think tank, no special arrangements are made for families during the joint investigation. There is a strict separation of men and women. They are all detained in solitary cells during the investigation. For the integration process men and women are separated and accommodated in two Hanawons in two different cities."

35. None of that, to my mind, suggests that children are separated from their parents and, in my judgment, the Upper Tribunal not only addressed the relevant issue but also was entitled to come to the conclusion which it did. In my view, the Upper Tribunal had sufficient regard to the discharge of its duty under Section 55.
36. Accordingly these applications for permission to appeal are declined.
37. Thank you all very much indeed for your very interesting skeleton arguments and for the work that has gone on into them.
38. MR SHARLAND: My Lady, there was one matter. I am very sorry to trouble you. I understand that we need your permission if this judgment is to be cited in future cases because it is only a permission.
39. LADY JUSTICE GLOSTER: Yes, you do indeed.
40. MR SHARLAND: And I would ask for that permission.
41. LADY JUSTICE GLOSTER: Do you want to say anything about that, Mr Karnik or Mr Howells?
42. MR KARNIK: No, my Lady.
43. LADY JUSTICE GLOSTER: We give that permission.
44. MR SHARLAND: I am very grateful, my Lady.
45. LADY JUSTICE GLOSTER: Will you make sure that is reflected in the order?
46. MR SHARLAND: Of course, my Lady. Thank you very much.
47. LORD JUSTICE BRIGGS: In those circumstances it may be appropriate for a transcript of these extempore judgments to be circulated in advance of hand down for the parties' counsel's editorial view before they come back to us for final approval.
48. MR SHARLAND: Of course, my Lord.
49. LORD JUSTICE BRIGGS: That way we get your additional assistance.