[2019] NIQB 99 | Ref: | KEE11112 |
Judgment: approved by the Court for handing down | Delivered: | 02/12/2019 |
(subject to editorial corrections)* |
KEEGAN J
Introduction
i An Order of Certiorari quashing the impugned decision.
ii A declaration that the impugned decision is unlawful, ultra vires and of no force or effect.
iii A declaration that the impugned decision is incompatible with the applicant's right under Article 8 of the European Convention on Human Rights, contrary to Section 6 of the Human Rights Act 1998.
iv An Order of Mandamus requiring the SSHD to make a decision on whether the applicant's continued detention is appropriate, or whether the applicant should be released from detention.
v. Further and/or in the alternative, a declaration that the applicant's continued detention is incompatible with the applicant's rights under Article 5 of the European Convention of Human Rights contrary to Section 6 of the Human Rights Act 1998.
Procedural Fairness.
The applicant contends that the impugned decision was procedurally unfair in the following respects:-
(a) The applicant was presented with documentation including the impugned decision, in the name of Jiawen Li (date of birth 1 November 1993) as a fait accompli – there was no effort made to consult the applicant before the impugned decision was made, or to invite his comments on whatever evidence the SSHD might have that the above identity does in fact belong to the applicant. The applicant was presented with a document containing the impugned decision and other associated documentation –
(i) without a Mandarin interpreter being present;
(ii) without a solicitor present; and
(iii) without any opportunity to question the provenance of the identity that the SSHD is now asserting to belong to him, or the veracity thereof. This denied the applicant his right to be heard under common law – it denied him the right to know the evidential basis for the SSHD's belief that the applicant's true identity is as above and it denied him the right to make any response thereto, before the impugned decision was made.
Illegality.
The applicant contends that the impugned decision was contrary to Section 6 of the Human Rights Act in the following respects:-
(a) It is clear that the applicant's Article 8 rights are engaged in relation to the impugned decision, being a decision to remove him from the UK. The impugned decision is of such potentially grave consequence, that Article 8 of the ECHR is engaged by it; and
(b) Because (for the above reasons) it is contended that the impugned decision has been taken in a procedurally unfair manner, the impugned decision is not in accordance with the common law and is a direct breach of Article 8 ECHR on this basis alone; and
(c) Furthermore, and whilst Article 8 itself contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and sufficient to afford due respect to the interests safeguarded by Article 8 (Petrov & X v Russia 101) this has been wholly lacking with regard to how the impugned decision was taken; or
(d) Further and/or in the alternative, it is extremely difficult to see how the impugned decision could be justified as being necessary in a democratic society, nor that it is proportionate to any legitimate public aim, and therefore the impugned decision falls foul of the test expounded in the House of Lords case of Regina v Secretary of State for the Home Department (Appellant ex parte Rasgar [2004].
Factual Background
"On 20 November 2014 the appellant claimed asylum. His protection application was considered by the respondent with reference to the Geneva Convention 1951 and to the terms of the European Convention for the protection of human rights and fundamental freedoms 1950 (the European Convention or ECHR). The appellant's claim was based on his stated Christian faith and his fear of persecution or a breach of his human rights if returned to China. The appellant's protection application was refused on all grounds. Refusal was also with reference to immigration leave by way of humanitarian protection. It was found that the appellant was not otherwise entitled to leave by reference to his human rights. The appellant exercised his right of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The appeal is exempt from the payment of an appeal fee. The history of this appeal is set out below and it was listed for a further substantive appeal hearing at the Royal Courts of Justice in Belfast on 12 October 2018.
This appeal first came before Judge Gillespie of the First Tier Tribunal, sitting at the Royal Courts of Justice in Belfast on 13 January 2017. In his decision dated 17 January 2017 promulgated on 19 January 2017 Judge Gillespie dismissed the appeal on all grounds. He had considered asylum, humanitarian protection and Articles 2, 3 and 8 of the European Convention.
The appellant's representatives Messrs Worthington Solicitors, submitted an application for permission to appeal the decision. That was decided by Judge Kimnel of the First Tier Tribunal who, in a decision dated 14 February 2017, granted the application. He found there to have been an arguable error of law based on apparent contradictions in the finding of Judge Gillespie with reference to the asserted Christian beliefs of the appellant and the potential and consequent risk to harm if he were removed to China.
The Error of Law hearing came before Judge Rintoul of the Upper Tribunal, sitting at the Royal Courts of Justice in Belfast on 27 July 2017. In his decision dated 18 August 2017 it was found that the decision of Judge Gillespie had involved the making of an Error of Law. No findings of fact were preserved. The decision was found by Judge Rintoul to have involved an inconsistency in the findings generally. No findings have been made with reference to any change of circumstances since the Upper Tribunal Country Guidance Decision in QH v China CG [2014] UKUT 86 IAC Accordingly a further hearing was required on a de novo basis."
"124. As I hope I have clearly stated, I do not have doubt as to the genuine religious beliefs of the appellant. It was not appropriate to apply section 8 of the 2004 Act as the appellant was at all times a minor. I also have made clear that the appellant is now a respected and valued member of his community within Enniskillen albeit still at a young age. However this tribunal has no entitlement to find in favour of individuals on the basis of their decency or good character if otherwise risk is not established, even where the core of the claim is found to be genuine. This tribunal has the duty to decide appeals on the basis of what it considers to be an appropriate and correct interpretation application of the relevant immigration rules, statute, case law and appropriate information and guidance. There are occasions when conclusions and decisions must be reached on that basis even where, based on the character of an individual appellant, that person could be an asset to his or her community in the UK. The law must prevail and must be applied.
125. I therefore find that the appellant has not discharged his burden albeit to the lower standard of establishing that he has a current and genuine well-founded fear of persecution for a Geneva Convention reason. The appellant is not found to be a person who would be at risk on return to China.
126. For the same reasons it is not found that the appellant would be at risk on return with respect to Article 2 or Article 3 ECHR rights. Returning to China would not prevent the appellant practising his faith and no breach of Article 9 of the European Convention would be occasioned by his return.
127. Turning to Article 8 ECHR, the appellant is not established that he would be entitled to leave based on sub-paragraph 276ADE(1)(vi) of the Immigration Rules. In an assessment of his Article ECHR rights out with the Immigration Rules, taking account requirements of Part 5A of the 2002 Act, I do not find that the appellant has established that, the engagement of Article 8(1) ECHR with reference to private life grounds, or requirement that he should return to China is disproportionate. Any factors favouring the appellant do not outweigh the entitlement of the respondent, on public interest grounds, to succeed on the basis that an effective immigration system should be maintained. The appellant has established private life rights in the UK at a time when his presence in the UK has been precarious in terms of his immigration status. Additionally his English language is limited.
128. Based on the above findings with reference to Articles 2 and 3 and to contrary conditions in China, the appellant would not alternatively be entitled to a grant of immigration leave by way of humanitarian protection.
129. As stated at the end of the hearing, the Anonymity Order previously made under the Upper Tribunal Rules, as an Anonymity Direction is continued under the Tribunal Procedure (First Tier Tribunal) Immigration and Asylum Chamber Rules 2014. The terms of the order are set out below."
130. I have referred above to the potential return of the appellant to China. I mention again the views expressed by Mr McGrath in that regard. I express the hope that if the Home Office are unable to ensure the provision of appropriate documentation for the appellant to be returned to China, the respondent would in the alternative consider granting discretionary leave to the appellant outside the Immigration Rules. These remarks are made even though I have not found that as a matter of law my consideration of Article 8 ECHR rights outside the Immigration Rules would entitle the appellant to a grant of immigration leave.'"
The Evidence
"3. I was born on 12 November 1998. I know this because my foster father's parents told me this. Whilst I had foster parents I actually spent my time living with my foster father's parents. I don't know why this was the situation, I wasn't involved in that arrangement. I don't know the names of my parents, I don't know where I was born. I was told by my foster parents that my biological parents are deceased but when I questioned my foster grandparents about how my biological parents died and they never gave me any details of how they died it left me thinking that maybe they are not deceased.
4. As far as I am aware I do not have siblings. I lived with my foster father's parents until I was about 11 years old. It was in a mountain village in the mountainous area of China, I don't know the name of my town I lived in and I was illiterate at this time, it was a very poor village, there were not even any cars in it, only bicycles. After these two elderly people died, my foster parents told me that they were going to take me on a tour bus for a trip and we travelled two nights together before the bus journey ended. When we got off the bus they told me they were going to get some water and I was to wait for them. They left me and they never came back. I never saw them again.
5. I was waiting for them in the square but they didn't come back. Many old people danced in this square and one of the shops beside it offered free food and water. I waited there for three days but when they still didn't come back the old people dancing in the square began to ask me where I was from and were concerned about me. I didn't tell them I was scared but also I didn't know the name of the place I had come from. They took me to an orphanage where I stayed for 1-2 months, I wasn't happy there. They were beating me so I ran away and met other children who were selling things on the street and sleeping on the street which I began to do as well and soon I began helping them to sell things and share accommodation with these other children.
6. For approximately 4-5 years I lived in Shaozing City in Zhejjang Province. I was never officially registered in China and do not have a Hukou. Whilst living on the streets I fended for myself and by selling bits and pieces I began to live off the money I earned.
7. About 1 year after I was abandoned by my foster parents I was on the streets on the outskirts of Shaozing City when I met a man who was handing out leaflets. I told him that I had never been educated and therefore I could not read his leaflets. He told me that he would teach me to read. I was naturally suspicious of this and had my doubts because I didn't think people would simply spend their time teaching me to read but yet I was desperate to learn. He told me he was a church preacher and that his name was Father Guang. He told me where I could go to meet him and said I would be visiting the next day."
" ..the person I had met in the other country when the boat stopped had given me £100, I don't know why he would give me this amount of money. Perhaps he felt sorry for me because I had told him my problems. I was trying to find a policeman as this person in the other country had advised me to do this. First I saw a bus, nobody asked for my ticket on the bus. I sat at the back of the bus and 2 hours later I arrived in Enniskillen."
The applicant also states that he got off the bus and went into a shopping mall and he was surprised to see there were a number of Asian people around. He says he wanted to ask for help but he didn't.
" I then saw a friendly looking Asian man who I know to have been Mr Chen. I followed him, he did not know that I was following him. He went into what I now know to be a Chinese takeaway. There was a covered corridor between the two buildings where I slept for 5 days. No one knew I was there during this time. I managed to remain hidden because nobody walked past this corridor. I didn't approach Mr Chen during this time because I didn't know if he would help me but after 5 days the money the kind man had given me was running out and therefore I had no choice. I therefore approached him and asked if he wanted me to work for him. I told him I was 18 but he thought I was 15 or 16 years old and he said he couldn't employ. I asked if I could stay for one night and that happened. Mr Chen said he would contact Social Services straight away and let them know I was there."
"12. The first is that the date of birth that I have always used and that I believed to be my date of birth is 12 November 1997. Whilst the date of birth of 12 November 1998 has been given in statements placed before the tribunal and in my solicitor's affidavit, I can advise that this date of birth (year 1998) was given at one stage during my case by mistake – a mistake was made by the Mandarin interpreter in interpreting the year of birth but I communicated to them in Mandarin. I recall this to be because I had told the interpreter that I was born on the Chinese zodiac year of the ox/cow 1997, but the interpreter mistakenly believed the Chinese zodiac year of the ox/cow was 1998 and therefore gave 1998 as the year of my birth. Unfortunately, this year of birth has been given multiple times in documentation throughout the life of my case. However 1997 has also been stated as the year of my birth, also on multiple occasions for the avoidance of doubt, I wish to confirm that the year of my birth, as I understand it is 1997.
13. The other issue that I wish to explain is extremely important. In 2013, when I was still living in China, I sold my photograph and fingerprints because I had no money at the time. I do not know the people whom I sold this information to. They were standing outside a police station and told me that they could give me money if I provided them with a photograph and my fingerprints. I agreed. They took my photograph outside the police station and some civilian official outside the police station took my fingerprints. They gave me 1000 RMB (around £100) in exchange."
The Respondent's Evidence
(a) A visit to the United Kingdom by Chinese Ministry of public security to assist operations of Elucidate 29, Saturday 26 March to Saturday 7 May 2016.
(b) A Memorandum of Understanding document relating to an annual conference that now takes place between the Chinese authorities and UK authorities.
(c) A photocopy of a passport referred in the first exhibit in the affidavit. It is a copy of part of the Chinese passport issued by the authorities there in the name of Jiawen Li on 19 February 2013 in the Fujian Province of China. The pertaining passport number is referred to in the NBS document provided to the Home Office following their interview of the applicant. The photocopy was emailed to the Home Office by colleagues and Immigration Services in Beijing, who stated that in their belief the photograph bore a very close resemblance to that taken in the UK. The Home Office have been informed that it is a biometric passport, meaning that the photograph and fingerprints are collected at the point of application, which is normally a police station. A second passport number is referred to in that same NPS document, that the Beijing officials informed the Home Office that they do not have a copy.
Arguments of the Parties
(i) He has only ever been Wen Li, his correct date of birth is 12 November 1997, the family member details are incorrect and the photograph on the Chinese Travel Document is not a photograph of him.
(ii) Ms McIlveen therefore argued that if the respondent is going to remove the applicant from the United Kingdom it has a responsibility to ensure that the appropriate travel documentation has been secured and is accurate.
(iii) It was pointed out that despite the fact that the respondent maintains that the Chinese authorities are responsible for the provision of travel documentation, the respondent facilitated an interview between the applicant and the Chinese Ministry. Ms McIlveen therefore submitted that the respondent maintains some responsibility.
(iv) Ms McIlveen also raised a number of matters which she said were significant namely that when the applicant first arrived in Northern Ireland he was an unaccompanied minor, Social Services have been involved with the applicant since he was encountered in Northern Ireland. Also, the applicant still receives services and support from Social Services as part of the leaving care system, the applicant has no family in China and the applicant is now settled and well integrated into life in Northern Ireland.
(v) Ms McIlveen contended that there was clear procedural unfairness in this case as no effort was made to consult with the applicant before the impugned decision was made.
(vi) Ms McIlveen also argued that the decision impugns the human rights of the applicant pursuant to Article 8 of the European Convention on Human Rights ("ECHR").
(i) There is no procedural unfairness in this case as the applicant was in fact interviewed about his immigration status as part of Operation Elucidate.
(ii) The decision to remove him has been determined and has been pursued through the Immigration Tribunal. There is no application made to take that matter any further although arguably further submissions could be made.
(iii) This is not a decision in relation to the United Kingdom. The impugned decision of 1 May 2019 is a removal decision which is actually not under challenge. The decision here seems to be in relation to checking of travel documentation.
(iv) That is not a decision of the United Kingdom Government. It is the responsibility of the Chinese State to arrange travel documentations. As such Article 8 is not engaged. Even if it were engaged there is ample justification for taking the course suggested.
(v) Mr Henry also argued that in this case there had been a gross violation of the duty of candour in that in the pre-action correspondence in the first affidavit there is no mention of the interview at Drumkeen. Also the affidavit evidence is riddled with inconsistencies.
Conclusion
Conclusion