ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE HANSON
UI-2021-001588
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE PETER JACKSON
and
MR JUSTICE COBB
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AAZA (Yemen) |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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William Irwin (instructed by Government Legal Department) for the Respondent
Hearing date: 14 May 2025
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Crown Copyright ©
Lord Justice Bean:
"The 10 grounds of appeal are all interlinked. They are all concerned with reliance on the Applicant being able to return to China, the burden of proof in that regard and the risks relating to such a return. They have a real prospect of success and there is a compelling reason why the appeal should be heard given the risk to the Applicant".
"(i) the safety of return to China including the risk of refoulement;
(ii) the inconsistency between the rules and the Qualification Directive comprising a procedural and substantive part:
a) Should the appellant be permitted to raise this where it did not form part of his argument before the FTT.
b) Substantive argument, including whether the Directive had direct effect."
"Sadly it has been around three years since I lost contact with my family. The last thing I heard about them was my father was forcefully deported back to Yemen."
Ms Ferguson did not seek formally to adduce this statement as fresh evidence. Our task, like that of the Upper Tribunal Judge, is to decide whether, on the evidence before her, the First Tier Tribunal Judge made any error of law when she dismissed the Appellant's appeal against the decision of the Home Office dated 26 November 2020.
The parties' cases before the First Tier Tribunal
"24. The Appellant's case, based upon his screening interview, asylum interview, further representations, skeleton argument and oral evidence at the hearing, can conveniently be summarised as follows:-
a) The Appellant is a national of Yemen, born 2 May 2000. He was born in Bangkok, Thailand where he lived for a year prior to moving with his family to China where his father ran an import/export business.
(b) The Appellant's family do not have settled status in China, his father having to renew his residency every year. Since the Appellant turned the age of 18 he is only able to reside there on a student visa in his own right.
(c) The Appellant's family includes his father, mother and two siblings, born 2003 and 2004 respectively.
(d) The Appellant received his education in China. He commenced university studies in 2018 at Changsa Human University and in his second year studied at Changsa Central University.
(e) Although the Appellant has lived in China for the majority of his life, he has not been granted citizenship.
(f) The situation in Yemen has continued to deteriorate since the war commenced in 2014.
(g) On 4th December 2019 the Appellant's father and other Yemeni citizens residing in China organised a conference where Yemeni nationals resident in China raised money and provided clothing to support displaced and vulnerable citizens of Yemen.
(h) During the conference those who attended also raised the problem of the Igor (Uighur) Muslims in China. This a taboo subject for the Chinese authorities.
(i) The Appellant's role was to distribute leaflets during the conference to generate awareness about the Yemeni war and the negative involvement of the Saudi-led coalition. The Appellant's father was a chief organiser and was in charge of money raised during the conference.
(j) On 11th January 2020 the Appellant arrived in the United Kingdom to continue his higher education. Whilst he was checking in his luggage for departure from China his passport was taken by Chinese airport security and retained for fifty minutes. The Appellant was questioned by Chinese airport security. The Appellant's passport was returned to him. When the Appellant arrived in the United Kingdom he became aware of the rumours that the Chinese government had begun arresting Yemenis who had attended the conference
(k) On 25th January 2020 the Chinese intelligence and local police visited the Appellant's father's place of work. He was questioned by the Chinese security forces about his work and his family in China and abroad. He was physically and verbally abused during the interrogation and asked to surrender his Yemeni passport.
(l) The Appellant's father was informed that he had organised a conference which was not licensed or approved by the Chinese government. He was released after several hours.
(m) Since he made his application for asylum the Appellant's family in China have been constantly harassed by the Chinese government.
(n) The Appellant's father has been diagnosed with a heart condition and his mother is suffering from depression. His siblings have had their education interrupted. They have been unable to enrol for education as the Appellant's father's residency in China is unconfirmed as the Chinese authorities took his passport. The Appellant's father has been interviewed on several occasions and he is required to attend the local police station on a weekly basis.
(o) The Appellant believes that his family is to be removed to Yemen but that is not possible at present.
(p) The Appellant's visa application and copy passport demonstrate that his residency permit in China expired on 20th July 2020. He is no longer enrolled on a course of study there and in view of the developments with his family and his own connection to it, it is unlikely that he would obtain another visa/residence permit.
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28. The Appellant's Representative made the following submissions:-
(a) She relied upon the skeleton argument.
(b) The Appellant has not been given humanitarian protection in effect. It was recognised he should be if it were not for the question of an alternative country of return.
(c) It is baffling to say that China is a reasonable destination for the Appellant when the Appellant has no visa. He is not Chinese and has no right to return there.
(d) Although it is correct that the Appellant was allowed to leave China on the basis of his own passport, this was before his father had been arrested and the family had come to the attention of the authorities.
(e) What the Appellant says about the treatment of his family is consistent with what we know about China who are sensitive about Uighur issues. There is no reason to believe that the Appellant's family would be treated fairly or humanely.
(f) There is no reason that the Appellant could return to China. He does not have a visa. The burden does not shift to the Appellant to show that he can get one.
(g) She invited me to find that on balance a visa would not be available given the attitude that the Chinese have to foreign visitors and particularly those with Muslim connections.
(h) The Secretary of State cannot forcibly return the Appellant to China as he is not a Chinese citizen.
(i) Perhaps the question of whether the Appellant is entitled to asylum in Yemen is somewhat academic. Although the Respondent states that the Appellant has been granted humanitarian protection, in effect he has not been as the Respondent is saying that the Appellant can be returned to China and therefore the Appellant has not been given any protection based the situation in Yemen.
(j) The situation in Yemen is as set out in the CPIN - Yemen: Security and humanitarian situation, January 2019.
(k) It is not realistic for the Appellant to return voluntarily to China. The background evidence in the Appellant's bundle supports his account about the suspicion that has fallen on his family, which is why the Appellant should not be returned to China even if the authorities would allow it.
(l) The Appellant's account is credible and plausible by reference to the background evidence.
(m) The Appellant came to the UK with no expectation that his circumstances would change as is stated to be the case.
(n) The Appellant is a Yemen citizen and the Secretary of State has recognised that the Appellant cannot be returned to Yemen.
(o) The Appellant cannot return to China."
25. The Respondent's case, based upon the Reasons for Refusal letter and Respondent's Review, can conveniently be summarised as follows:-
(a) The Respondent does not dispute the Appellant's identity, date of birth or Yemen nationality.
(b) The Respondent accepts that the Appellant's claim is based firstly on a reason recognised by the 1951 Refugee Convention, namely the Appellant's imputed political opinion, and secondly on a reason not recognised by the 1951 Refugee Convention, namely the general situation in Yemen.
(c) The Respondent accepts that the Appellant is entitled to humanitarian protection in that he could not be returned to Yemen as there would be a risk of serious harm in that event such that the Appellant's rights under Article 15(c) of The Qualification Directive would be breached.
(d) Notwithstanding the fact that the Respondent finds that the Appellant is entitled to humanitarian protection, it is not accepted that the Appellant is a refugee. The Appellant has referred to a threat to him from the Houthi tribe in Yemen. The Respondent does not accept the Appellant's claimed fear from the Houthi tribe in the event of his return. The Respondent considers that the Appellant's claim that he would be at particular risk on return to Yemen for a reason recognised by the 1951 Refugee Convention is speculative and inconsistent.
(e) The Respondent considers that there is an alternative country to which the Appellant could return, specifically China, where he has lived for the majority of his life and where he had been educated and where his family are located.
(f) The Appellant does not satisfy the requirements for leave to remain in the UK based upon Article 8 family or private life grounds.
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27. The Presenting Officer made the following submissions:-
(a) She relied upon the Reasons for Refusal letter and Respondent's Review.
(b) So far as Yemen is concerned, the Appellant left Yemen when he was 1 year old, had last visited when he was 13 and has had no contact with the Houthi militia. There is no explanation of why the Appellant would be specifically at risk for a Convention reason.
(c) The Appellant's claims regarding return to China are speculative. The Appellant was allowed to leave on his own passport following questioning. No adverse interest has been notified. His claim is speculative and lacking in credibility.
(d) The Respondent has shown realistic alternatives for the Appellant returning to China, the country in which he has lived for the whole of his life. The Appellant has not shown that he has attempted what has been suggested by the Respondent to enable him to return. He simply said he could not do it.
(e) The Appellant is able to return to China and it is reasonable to expect him to do so. The Appellant has made no efforts to show that this is not the case or to rebut the Respondent's position.
Findings of the FTT
"42. Overall, the Appellant's claimed fear of persecution in China is based upon what has happened to his family rather than his own direct personal experience. The Appellant's witness statement and the skeleton argument on behalf of the Appellant make reference to the poor overall human rights record of the Chinese authorities with particular reference to those connected to or suspected of supporting the Uighur community and whilst I accept that that is the case, I do note that no evidence has been put forward on behalf of the Appellant regarding general human rights abuses against nationals of Yemen.
43. In considering whether there is a real risk of the Appellant suffering persecution in the event of return to China, based upon his belief that he would be treated in the same manner as his father and family, I do take into account that on the basis of the Appellant's account, his role in the conference was a minor role, especially when compared to the role of his father. The Appellant has referred to his father as being one of the main organisers of the conference and also having collected the money which was raised to assist displaced persons from Yemen. The Appellant's role, on the basis of his account, had been to distribute some leaflets and to look after attendees at the conference. It is also the case that the Appellant is not a minor and is an independent adult rather than a dependent of his father.
44. In considering the risk of persecution, it is necessary for me to consider what amounts to persecution. The Appellant's account of the treatment of his father shows a degree of harassment, such as reporting requirements, the removal of his passport and the Appellant claims that his father was physically and mentally abused during his initial questioning. At Paragraph 75 of his asylum interview the Appellant confirms that he is not aware if his father ever having been detained by the authorities.
45. The case of HJ (Iran) v SSHD [2010] UKSC 31 states that "the Refugee Convention does not define "persecution" but it has been recognised as a strong word" and in MI (Pakistan) and MF (Venezuela) v SSHD [2014] EWCA Civ 826 it is stated that discrimination is not enough to constitute persecution.
46. Even if the treatment described having been suffered by the Appellant's father and family is taken at its highest level, I do not find that this constitutes persecution for the purposes of the 1951 Refugee Convention, the treatment amounting, in my view, to harassment with a degree of discrimination. In any event, I do not find that it follows that the Appellant would be subject to similar treatment in the event of his return to China. In this respect I take into account the difference between the Appellant's father's role at the conference and that of the Appellant, the fact that the Appellant is an adult for legal purposes albeit it is accepted that the Appellant remains financially dependent upon his father and also the fact that no action was taken by the Chinese authorities against the Appellant for the several weeks in which he remained in China between the conference in December and his departure for the United Kingdom. I also take into account that on the basis of his account, the Appellant was questioned by the Chinese authorities at the airport but permitted to leave China using his own passport. I take further into account that no claim has been made by the Appellant that there was any ill-treatment or harassment or discrimination against him or his family in China for the nineteen years prior to the conference.
47. Having taken all of these factors into account, even taking the Appellant's account at its highest level, I do not find that it is reasonably likely that the Appellant would be subject to persecution or serious harm in the event of return to China. It is the Appellant's account that it had been necessary for himself and his family to apply on an annual basis for residence permits. At Paragraph 14 of his witness statement he stated that they had to renew their residence permits on an annual basis and it is stated on behalf of the Appellant that when he became 18 years of age it became necessary for him to obtain a residence permit in his own right as a student. The Respondent has accepted that the Appellant's residence permit in China was valid until 20th July 2020 and has therefore expired. The Appellant's account was that he had intended to return to China before the expiry of the permit and to renew the same.
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51. It is impossible to determine whether or not an application made by the Appellant now for a visa or residence permit for China as a student (as he had prior to leaving China) would be successful. No evidence has been put before me to indicate that the Appellant has made such an application. It is generally asserted on behalf of the Appellant that such an application would not be successful but there is no evidence that that is the case. In any event, having considered the case.
52. In the light of this guidance, and particularly taking into account that on the basis of the Appellant's evidence, no application has been made for the necessary documentation to enable him to return to China, I do not consider that the Appellant's ability or otherwise to obtain a visa or residence permit is relevant in my consideration of the Appellant's refugee or humanitarian protection claim. In the light of the findings previously referred to, I do not find that the Appellant has demonstrated that he has a well-founded fear of persecution in the event of return to China and I therefore dismiss his asylum appeal insofar as it relates to China also.
53. In relation to China, I find that the Appellant's claim for humanitarian protection under Paragraph 339C of the Immigration Rules is in the alternative to the asylum appeal. In view of the factual conclusions I have reached in relation to the Appellant's asylum appeal relating to China I find the Appellant cannot qualify for humanitarian protection."
The appeal to the Upper Tribunal
"1. The appellant is a national of Yemen who has lived in China with his family for most of his life.
2. The in-time grounds assert that the judge erred in finding that there was an alternative safe country (namely China) to which the appellant could return. The grounds assert that the judge incorrectly shifted the burden of proof to the appellant in relation to the issue of whether he could go to China. It is also asserted that the finding that the appellant could go to China is irrational because he does not have permanent residency there or a current visa
The judge's conclusion that the appellant's ability or otherwise obtain a visa or residency permit was not relevant to her consideration of the asylum or humanitarian protection claim is an arguable error of law The judge has taken into account guidance given in the cases of GH (Former Kaz, Country Conditions_ Effect) Iraq CG [2004] UKIAT 248 and GH v Secretary of State for the Home Department [2005] EWCA Civ 1182 but these cases both concern appellants returning to their country of origin."
"32. What the appellant is effectively arguing is the impracticality of his return to China.
33. In HF (Iraq) and Others v Secretary State the Home Department [2013] EWCA Civ 1276 it was found that an international protection claim made by an appellant cannot succeed by reference to any alleged risk of harm arising from the absence of an appropriate travel document, in that case it was a current or expired Iraqi passport or a laissez-passer which it was contended the appellant would face a real risk without on return to Iraq at Baghdad airport, if a Tribunal finds that an appellant's return is not currently feasible on account of a lack of any of the required documents.
34. Proceedings before the immigration tribunals are adversarial by nature and in MA (Ethiopia) [2009] EWCA Civ 289 it was found that where the central issue before the Tribunal was whether someone would or would not be returned, the Tribunal should in the normal course require the claimant to act bone fide and take all reasonable practical steps to seek to obtain the requisite documents to enable him/her to return.
35. The specific finding of the Judge in this appeal is that there was no evidence the appellant had undertaken the necessary bona fides enquiries to ascertain whether he will be granted further leave to enter and remain within China as he had previously. That is a finding in accordance with the evidence and neither perverse nor irrational.
36. It was not made out there was any real risk to the appellant in making an application for the necessary documentation to the Chinese embassy in the UK.
37. Although the appellant disagrees with the conclusions of the Judge the difficulty for the challenge is that it appears to be predicated on an allegation of perversity as a result of disagreement with the Judge's conclusion regarding any potential ill treatment on return, which the Judge did not find to be sufficient to engage the refugee Convention or entitle the appellant to succeed on any other basis, and has not undertaken the requisite steps to ascertain whether such a contention is true.
38. Although Mr Muquit in his submissions suggested the appellant would not be entitled to any of the visas suggested by the Secretary of State in the refusal letter submissions are not evidence and the best evidence is a clear statement of the position of the Chinese authorities from them on this question.
39. I find no material error of law sufficient to warrant the Upper Tribunal interfering any further in relation to this matter.
40. It is for the appellant to decide what further steps are taken but it may appear that the best option is for him, with the assistance of his solicitors who will be able to attest to the bone fide [sic] of any further enquiries if later challenged by the Secretary of State, to make proper enquiries and an application to the Chinese authorities to ascertain whether he is able to secure permission to re-enter China, even if on the same basis as before. If the appellant is not able to obtain such and has confirmation he will be denied re-entry to China he may have grounds for making a fresh claim on the basis that the only country to be considered will be Yemen in relation to which it is already conceded he may be entitled to a grant of Humanitarian Protection.
41. There is no material error of law in the Immigration Judge's decision. The determination shall stand."
The appeal to this court
"i) In all the circumstances the Upper Tribunal was wrong to accept the SSHD's contention that China was a safe third-country;
ii) The Upper Tribunal erred by relying on caselaw relating to returning a national to their own country when in fact the SSHD proposed to return the appellant to a country of which he was not a national nor had any rights of residence; China was neither safe nor did the appellant have any relevant connection in terms of establishing residency rights;
iii) The Upper Tribunal erred by not considering that the qualification directive (under which the appellant would be granted status in relation to Yemen) makes clear that a person is to be returned to their country of origin or nationality; only stateless people will be returned to the country of their former habitual residence;
iv) The Upper Tribunal erred in considering the appellant should prove he would not be admitted to China where it is for the SSHD to propose a safe third country that is viable/reasonable both in terms of connection and safety on the balance of probabilities. The Upper Tribunal erred in considering that a temporary student visa, even if granted, would offer the appellant any durable rights of residence in that proposed safe third country; and thus whether it could be said to be a safe alternative;
vi) The Upper Tribunal erred in concluding the appellant can be excluded from the humanitarian protection to which he is otherwise entitled because he has not obtained a clear statement from the Chinese authorities that they would not admit him and/or might seek to refoule him to Yemen;
vii) The UT erred in relying on paragraph 8 of Schedule 2 of the Immigration Act 1971 to say that an illegal entrant may be returned to the country from which they embarked the UK; the appellant was not an illegal entrant nor refused entry nor even an overstayer;
viii) The Upper Tribunal erred in failing to recognise that where an appellant has made a claim for asylum/protection the UK cannot return him to the country from which he embarked for the UK if that would place it in breach of its obligations; this relates to risk in that country but also of refoulement;
ix) The Upper Tribunal erred in not considering the obligation on the SSHD and the courts to consider the risk of indirect refoulement; since the SSHD in the refusal recognised that he would not automatically be admitted to China mode of return arguments have been raised and should be considered including risk of refoulement which should be assessed independently and in any event;
x) The Upper Tribunal was wrong to characterise the appellant's arguments as about feasibility of return that it had no jurisdiction to hear and that would only be amenable to Judicial review once removal directions had been set."
"If I am forcibly returned to China the only fate waiting for me would be similar to that of my parents and siblings who are waiting to be removed from China."
"19. The FTT Judge cites paragraph 339C of the immigration rules, intended to transcribe the directive but there is a discrepancy in that the rules speak of country of return but article 15 makes clear only stateless people can be returned to their country of habitual residence. The directive should be preferred to the immigration rules in the circumstances. See Abunar (Para 339C: "Country of return") [2018] UKUT 387 (IAC) §7.
20. It is submitted the wording of the directive makes clear if he cannot be returned to his country of origin he should be granted humanitarian protection as confirmed by Abunar, ibid."
a) The risk to the Appellant of persecution or other ill treatment if he is returned to China;
b) The argument that it is perverse to regard China as a "safe third country";
c) The issue relating to the obtaining of a visa or residence permit;
d) The risk of refoulement of the Appellant from China to Yemen;
e) The Abunar point.
Discussion
Risk of persecution or ill-treatment of the Appellant if returned to China
Is China a "safe third country?"
"Third, the type of case with which we are concerned here, involving intended expulsion of a refugee, tends only to arise as a matter of international state practice in situations where the person concerned has some connection with the third state which is said to be safe, based on nationality, prior residence, marriage, entitlement to residence, historical ties etc. [It] does not arise simply because there is a safe third country somewhere. Within the EU, the requirement of a connection is now stipulated in Council Directive 2005/84/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status at Article 27, which states that the application of the safe third country concept shall be subject to rules laid down in national legislation, including "rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country" (Article 27(2)(a))."
The documents issue
The risk of indirect refoulement
"27. A judge sitting in the FtT can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing of the appeal. The parties are obliged by rule 2(4) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 to help the Tribunal to further the overriding objective, and to cooperate with the Tribunal generally. The parties are under a duty to provide the FtT with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the FtT to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the FtT.
28. It follows that unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules."
"15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.
16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.
17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).
18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22 at [29])."
The Abunar point
"339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
(ii) they do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and
(iv) they are not excluded from a grant of humanitarian protection.
Conclusion
Lord Justice Peter Jackson:
Mr Justice Cobb: