Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 130

P1340/15

OPINION OF LORD CLARKE

In the petition of

DAOZHEN LU (AP)

Petitioner;

against

The Secretary of State for the Home Department

Respondent

Petitioner:  Stein;  Drummond Miller LLP

Respondent:  Pirie;  Office of the Advocate General

13 September 2016

[1]        The petitioner is a national of the People’s Republic of China who was born on 24 April 1971.  The respondent is the Advocate General for Scotland representing the Secretary of State for the Home Department (“the Home Secretary”).  The petitioner seeks reduction of a decision of the Home Secretary, dated 1 December 2014, by which she refused to accept that further submissions, made on behalf of the petitioner, amounted to a fresh claim for the purposes of paragraph 353 of the Immigration Rules.

[2]        The petitioner arrived in the United Kingdom on 18 December 2001 and claimed asylum.  His wife, Xiao Ying Chen, arrived in the United Kingdom in or about October 2003 and also claimed asylum.  The petitioner’s asylum claim was based on his being a “Falun Gong” adherent and practitioner, which was said to mean that he had well‑founded fear of persecution at the hands of the Chinese Government, if he were made to return to the People’s Republic of China.  By letter dated 17 December 2001 the then Home Secretary refused the petitioner’s claim.  The petitioner appealed that decision but his appeal was dismissed on 18 February 2002.

[3]        By letter dated 15 September 2011, the petitioner’s legal agents made further submissions to the Home Secretary, which submissions relied on Articles 2, 3 and 8 of the European Convention on Human Rights.  The submissions, in particular, contended that the petitioner’s removal from the United Kingdom:

(1)        Would expose him to persecution on account of having breached the Chinese “one child policy” as the petitioner and his wife had two children living in China already and had one child living with them in the United Kingdom namely Lu Chen born 2 December 2009.

(2)        That the petitioner’s wife was heavily pregnant and unfit to travel and

(3)        that the petitioner and his family had a family life in the United Kingdom, having integrated into British society and developed a network of friends and associates which they would be deprived of if required to return to China.

In support of these representations there were submitted certain letters of support from friends and associates, and passports and immigration documents.

[4]        In a letter of 1 December 2014 (6/5 of process) which rejected the submissions in question as amounting to a fresh claim, the Home Secretary at page 3 summarised the further submission in these words:

“You have claimed that you still have a well founded fear of persecution if you were returned to China due to your involvement with Falun Gong.

You have claimed that removing you to China would be a breach of Article 8 as you have established a private life during your stay in the UK.”

That summary did not acknowledge that a further submission had been made on behalf of the petitioner, which was in the following terms in the letter of the petitioner’s agent dated 15 September 2011 (6/1 of process):

“Our clients continue to fear a breach of their Articles 2 and 3 ECHR rights if returned to China.  They already have two children in China, plus a third child here.  Mrs Chen is pregnant with her baby due on 29 October 2011.  To remove them to China would expose them to a breach of their rights under Articles 2 and 3 ECHR as they will face persecution for a breach of the one child policy.  Additionally, as Mrs Chen is heavily pregnant, she is not in a condition to travel.”

This argument was developed further in the agent’s letter in the following terms:

“If our clients were returned to China, they would be deprived of the network of friends and support they have established in Scotland, and would also face a breach of their human rights based on their infringement of the one child policy.

If one refers to the 2009 Human Rights Report relating to China, it can be seen in section 2D that movement within China is seriously undermined for certain individuals as a result of the Hukou system.  As a result many individuals are denied access to basic services and provisions.  In particular it states that educational services are limited in such cases and we would maintain that our clients’ children would suffer as a result if they were returned to China.  Section 6 confirms that the one child policy remains in force and those who have failed to comply face the ‘harshly coercive elements’ of this policy.  Again we would submit that our clients and their children would most likely suffer as a result of having failed to comply with this policy”.

[5]        There has to be noted, at the outset, that not only are these submissions not referred to in the Home Secretary’s summary, quoted above, they are not referred to anywhere else, in terms, in the decision letter which runs to some eight pages.  It was understandably and properly, in my view, accepted, by counsel representing the respondent, that such an omission betrayed an error in law on the part of the Home Secretary.  She had failed to take into account a material submission, which she was required to do.  Putting matters another way the omission evidenced a lack of an exercise of “that anxious scrutiny which is required to be exercised  on the part of the Home Secretary in determining such applications.  The respondent, however, resisted the petition on the footing that any error on the part of the Home Secretary in her decision was not material.  [It should be noted that the respondent had sought initially to defend the petition on the basis of a plea of Mora, taciturnity and acquiescence.  Counsel for the respondent, however, informed the court, at the outset of the hearing, that that plea was no longer to be insisted upon].

[6]        The principal position of counsel for the petitioner in seeking reduction of the Home Secretary’s decision was short and briefly stated.  It was that the decision was clearly invalid because of the blatant failure by the Home Secretary to exercise “anxious scrutiny” in dealing with the further submissions.  That completely undermined the validity of the decision and it should be reduced simply on that ground, as being illegal in the circumstances.  Without an exercise of anxious scrutiny on the part of the Home Secretary it could not be said that the claim had no reasonable prospects of success before an immigration judge.  Counsel for the petitioner, in addition, contended that the petitioner’s separate claim based on Article 8 had not been addressed either adequately, or properly, by the Home Secretary and this, too, formed a proper basis for reduction to be granted.

[7]        As regards to the Home Secretary’s failure to record or address the submissions based on a fear of persecution arising from the Chinese Government’s so called “one child” policy, if the petitioner were to be returned to China, counsel for the respondent submitted that that failure on the part of the Home Secretary was not material.  That was because the petitioner had failed to take into account the significance of the decision in AX (Family Planning Scheme) China CG [2012] UKUT 00097 (IAC).  That decision required to be considered, having regard to the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal (10 February 2010, as amended 13 November 2014).  The Directions contained in those Practice Directions were expressly approved of, and adopted by the Court of Appeal in R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535.

[8]        Paragraph 12 in the Practice Directions is inter alia to the following effect:

“12.2   A reported determination of the Tribunal, the AIT or the IAT bearing the letters ‘CG’ shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal.  As a result, unless it has been expressly superseded or replaced by any later ‘CG’ determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-

(a) relates to the country guidance issue in question;  and

(b) depends upon the same or similar evidence.”

12.3     A list of current CG cases will be maintained on the Tribunal’s website.  Any representative of a party to an appeal concerning a particular country will be expected to be conversant with the current ‘CG’ determinations relating to that country.

12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.”

In AX the Upper Tribunal (Immigration and Asylum) Chamber, in a detailed review of materials relating to the Chinese Government’s policy on family planning came to certain conclusions.  In the first place, at paragraph 167 of the judgment the tribunal said:

“167.   Based on the evidence before us, we are satisfied that the Chinese government has largely moved away from the excesses of the unregulated family planning policy which existed before the statutory scheme came into force in 2005.  There is no doubt that appalling abuses took place during the ‘punishment’ approach, but China has been moving to increased statutory protection and Regulation, after a period of consideration during which there was increased laxity.”

At paragraph 171 of the judgment the tribunal observed:

“171.   Double-single couples are entitled to two children, subject in some provinces to four-year birth spacing, and there are many other options for second or additional children, according to the family planning Regulations in each province.  Different regulations apply where one is an only child and the other is not, or where both spouses have siblings.  The only generalisation that can be made in all circumstances is that the number of children permitted will depend on the provincial Regulations and the individual circumstances of the couple.”

The tribunal at, paragraph 38 of its judgment, had stated that each province in China issued what were described as SCP Certificates to citizens, which gave access to enhanced medical, pension, housing and employment benefits which are withdrawn and additional SUC penalties imposed, where an individual or family breaches the policy.

[9]        The tribunal then proceeded to provide country guidance.  In doing so they stated at paragraph 191(4) as follows:

“(4)        Breach of the Chinese family planning scheme is a civil matter, not a criminal matter.”

They continued at paragraph 191(6):

“(6)      Any second child, even if authorised, entails the loss of the family's SCP certificate.  Loss of a family’s SCP results in loss of privileged access to schools, housing, pensions and free medical and contraceptive treatment.  Education and medical treatment remain available but are no longer free.

(7)        Where an unauthorised child is born, the family will encounter additional penalties.  Workplace discipline for parents in employment is likely to include demotion or even loss of employment.  In addition, a ‘social upbringing charge’ is payable (SUC), which is based on income, with a down payment of 50% and three years to pay the balance.

(8)        There are hundreds of thousands of unauthorised children born every year.  Family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child.  Payment for birth permits, for the registration of children, and the imposition of SUC charges for unauthorised births are a significant source of revenue for local family planning authorities.  There is a tension between that profitability, and enforcement of the nationally imposed quota of births for the town, county and province, exceeding which can harm officials’ careers. 

(9)        The financial consequences for a family of losing its SCP (for having more than one child) and/or of having SUC imposed (for having unauthorised children) and/or suffering disadvantages in terms of access to education, medical treatment, loss of employment, detriment to future employment etc will not, in general, reach the severity threshold to amount to persecution or serious harm or treatment in breach of Article 3.”  (Emphasis added)

The specific case with which the Upper Tribunal was concerned, which provided the context for the country guidance, involved a Chinese married couple with two children born in the United Kingdom.  The wife was resisting a refusal to grant her leave to enter the United Kingdom.  The Upper Tribunal took the view that it was in the best interests of the two children that they remain together with their parents.  They acknowledged, at paragraph 210 of the judgment, as follows:

“210.   We bear in mind that, if the children return to China with the appellant, the family will not qualify for the privileges which attach to a couple holding an SCP Certificate, since they will present and register two children on arrival.  The children are now six and four years old respectively.  These are very young children and we are satisfied it is in their best interests to remain with their parents.”

At paragraph 213 they also recognised as follows:

“213.   On return to China, the loss of this family’s SCP will mean that the children will not have privileged access to schools.  However, education and medical treatment will remain available, but will not be free, provided the children are registered.  There is no real risk of the children not being registered.

[10]      Among the extensive evidence and other material, to which the Upper Tribunal made reference, in dealing with the case before them, were, as is seen in appendix A to the decision, a document dated 11 March 2010 titled US State Department Country Reports on Human Rights Practices 2009;  China (includes Tibet, Hong Kong and Macau).  This was a document relied upon in the representations made by the agents for the petitioner to the Home Secretary.  This report however had been superseded by a later report from the same source, ie the US State Department, being “Country Reports on Human Rights Practices 2010:  China (includes Tibet, Hong Kong and Macau)” dated 8 April 2011 which was referred to and relied upon by the Upper Tribunal, as can be seen from appendix A to their decision.

[11]      Counsel for the respondents submitted that, in the light of the authorities, the position in the present case was quite clear.  Even if the Home Secretary had not made the unfortunate mistake, or oversight, of failing to address, in terms of her decision letter, the submissions made on behalf of the petitioner based on the Chinese Government family planning policy, if she had done so, she would have been bound to have had regard to the authoritative Country Guidance set out in AX and, therefore, would have been bound to reach the conclusion that there was no reasonable prospect of this submission succeeding before an immigration judge.  It was important to note that nothing was said in averment in the petition, nor had anything been said in the submissions made by counsel for the petitioner, which distinguished the facts of the present case, in any material respect, from the position being addressed in AX.  There were simply references to the policy, and its alleged effects, and the nature and extent of the family unit to which the petitioner belonged. That apart, nothing was said as to why, in this case, his circumstances would result in persecution if he were to be returned to China.  I agree with that submission.  It is the case that counsel for the petitioner provided nothing in the way of submission, or reference to material, that put the petitioner in any materially different position from that of the applicant in AX.  In that situation, I agree that the Home Secretary, had she properly applied her mind to the submission made, on the basis of the Chinese family planning policy, would have been bound to conclude that the submission based on Articles 2 and 3 had no reasonable prospect of success before an immigration judge.  That being so, the admitted error, on the part of the Home Secretary, was immaterial cf. Ashiq v Secretary of State for the Home Department 2015 SC 602.

[12]      Counsel for the petitioner separately made brief submissions that in any event, the Home Secretary’s treatment of the submissions based on Article 8 of ECHR were defective.  It was unclear, at times, precisely what the nature of any error in law was that the Home Secretary was said to have made in this regard.  Ultimately in submission, counsel for the petitioner appeared to be contending that the decision in relation to the Article 8 submission was disproportionate.  The attack on the decision of the Home Secretary, in that respect, was directed exclusively at her consideration of whether the particular circumstances set out in the petitioner’s application constituted exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of ECHR, might warrant consideration being given by her of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules.  To some extent, counsel for the petitioner, seemed to be re‑introducing the failure by the Secretary of State to consider the effects of the Chinese family planning policy on the petitioner and his children if they were to be returned to China, in support of his Article 8 argument.  In so far as she did so, I agree with counsel for the respondent that any error in that respect was immaterial, once again because of the effect of the decision in AX.  Counsel for the respondent pointed out article 8 ECHR confers no wider rights in relation to general welfare than Article 3 ‑ see TH (Pakistan) v Secretary of State for the Home Department [2015] EWCA Civ 956 at paragraph 11 and paragraph 16, and compare AX at paragraph 189 where it is stated:

“189.   We find that in general, couples with foreign-born children, over and above the permitted number for that couple (which is variable, depending whether they are a double-single couple, children of heroes or miners, members of ethnic minorities and so forth) will on return to China not be at real risk of persecution, serious harm or human rights breaches engaging international protection.”

It is to be noted also that in AX, where the Chinese policy was thoroughly examined, that policy per se did not appear to suggest to the tribunal that it would, by itself, support an Article 8 case.

[13]      As counsel for the respondent submitted, there was no specific averment or evidence, apart from the general reference to the Chinese family planning policy, referred to on behalf of the petitioner which was not taken into account in the Home Secretary’s application of the Immigration Rules.  There was no evidence offered to the Home Secretary, or referred to in the submissions, that was not a common feature in which removal was ordered.  The only specific evidence, apart from the policy referred to, were letters of support from friends and acquaintances, and references.  These had been duly considered by the Home Secretary in her decision letter in the following terms:

“You have submitted character references in support of your claim.  The character references have been written by your friends and detail you as a good and honest character, however, you have failed to provide any reasons for which these friendships go above and beyond normal emotional ties and there is no evidence of any special elements of dependency which would render your removal from the UK inappropriate in accordance with these friendships.  It is considered that you established such friendships in the full knowledge of your immigration status.”

The Home Secretary had also under reference to ZH Tanzania 2011 UKSC 4 acknowledged that the interests of a minor child are a primary consideration in such determinations but went on to observe that the assessment of proportionality is a balancing exercise between the individual’s private interests and the public interest in maintaining effective immigration control.  Having done so at page 6 of her decision letter she said, inter alia:

“Your children are young enough to adapt to life in another country.  This familial relationship will continue and your children will be in a strong position to continue to grow and develop in a social and cultural environment which you have experienced before.  The Home Office has also considered the education and private life of the children in the United Kingdom.  Your children will be able to integrate into the China education system without any problems due to their young age and will be able to benefit from family and private life in China growing up with their family.

Your children would be no worse off than most, and better off than many.  China is (sic) generally an advantaged country whereby millions of children grow up there quite well.  It is not accepted that children can never be expected to be removed from the UK to less advantaged parts of the world, irrespective of the requirements of the Immigration Rules.  It is not accepted that this is what is meant by the requirement to take account of the best interests of children, or to treat them as a primary consideration.

In light of this and on the basis of the grounds above, it is concluded that you do not qualify for leave to remain in the United Kingdom.”

I have been unable to identify anything in the Home Secretary’s reasoning in addressing the Article 8 issue, excepting of course, her unfortunate, but in the event, immaterial error, in failing to address the Chinese policy issue in terms, which demonstrates that she erred in reaching the conclusion that the submission made on reliance of Article 8 had no reasonable prospect of success before an immigration judge.

[14]      For all the foregoing reasons I am of the opinion that the petition falls to be dismissed.