United Kingdom Asylum and Immigration Tribunal

APPEAL No. [2004] UKIAT 00017 Z (China)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 21 January 2004

Date Determination notified: 06 February 2004

Before Mr Richard Chalkley (Chairman) Mrs S Hussain, JP
Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT	APPELLANT
and
Z	RESPONDENT

DETERMINATION AND REASONS
1. The appellant is the Secretary of State for the Home Department. The respondent is a citizen of the People's Republic of China.
2. The appellant appeals against the decision of an Adjudicator, Mr M J S Axtell, who in a determination promulgated on 29 July 2003, allowed the respondent's appeal on asylum grounds and on human rights grounds under both Article 3 and Article 8, against the decision of the appellant taken on 16 November 2002, to direct her removal.
3. The Secretary of State was not represented before the Adjudicator. We believe that this is regrettable. Had the Secretary of State been represented, we doubt very much whether that this appeal would have appeared before us.
4. Today, before us, Mr J Cobham a representative from Andrews, Solicitors, appeared on behalf of the respondent and Mr J Gulvin a Senior Home Office Presenting Officer, appeared on behalf of the appellant.
5. The grounds assert that the Adjudicator erred in law in finding that the respondent was a member of a particular social group or, as the Adjudicator describes her, as a member of a "social group". The Adjudicator gives no definition of this particular social group and the Tribunal held in its decision in Jin Huan Lin (01/TH/00099) that fear of Chinese officials in relation to the one-child policy was based neither on actual, nor perceived political opinion, nor was it part of a particular social group.
6. The Adjudicator made a finding that if the respondent were to be imprisoned following a Court appearance, imprisonment would expose her to a breach of Article 8 and the grounds challenge that finding, on the basis that there was no evidence that imprisonment was a punishment carried out by the Chinese authorities in respect of a violation of the one child policy. Reference was made to the Country Information and Policy Unit assessment. The grounds asserted that the respondent would not be at risk of any imprisonment and the Adjudicator's findings, in allowing the appeal on the basis that Article 3 would be breached, was an error. The grounds also referred to the Tribunal's decision in Chun Lin Chi (01/TH/2056), where the Tribunal made findings that violation of one-child policy does not result in imprisonment.
7. The Vice President, in granting leave, also found that in allowing Article 8 the Adjudicator may have erred. Mr Gulvin submitted that there was no particular social group identified by the Adjudicator, although in paragraph 14, he found that the respondent was a member of a "social group". He also relied on the Tribunal's determination in Chi, which found that a breach of the one-child policy would not result in imprisonment. As a result, there could not be said to be any risk of Article 3 being breached. He referred us to paragraph 15, where the Adjudicator dealt with the respondent's Article 8 claim. The Adjudicator identified that the respondent had a private and family life with her little girl. He concluded that the prospects for the respondent and her little girl in China were poor and it was impossible to say what would happen to that child. There was no evidence before the Adjudicator to allay the apprehension he had that that daughter would be taken away from her if she went to prison. Paragraph 15 was, submitted Mr Gulvin, wrong. The Adjudicator has not considered the question of proportionality and in any event, there could not possibly be said to be a breach of Article 8 family life, since, if the respondent were to be removed from the United Kingdom, the daughter will be too. The breach of private life found by the Adjudicator is, submitted Mr. Gulvin, based on pure speculation. It is based on the speculation that that respondent will be sent to prison and the further speculation that if she is, her daughter will be taken away from her. These errors mean that this determination is fatally flawed, he submitted.
8. Responding on behalf of the respondent, Mr Cobham asked us to consider "the result and effect of enforcement of the appellant's decision which would result in both an Article 8 and Article 3 breach". If the respondent were to be returned to China she would, he submitted, be tried and jailed. We invited him to take us to the objective evidence that supported his contention that the respondent would be imprisoned for having breached the one-child policy. He referred us to paragraph 5.91 of the Country Information and Policy Unit report. That clearly identifies that prison conditions in China are harsh and frequently degrading. We invited him to draw our attention to the objective evidence that showed that there was a likelihood that this respondent would be sent to prison. He referred us to page 21 of the bundle of documents that was before the Adjudicator. Page 21 is the fifth page of what appears to be a 9 page document, although there are only six pages in the bundle. It appeared to have been extracted from the internet. There was nothing to indicate who was the author of the document. He referred us to the section entitled "Women" and asked us to note that when women's rights or interests conflict with the party or government policy the latter takes precedent. This means for example, that abuses relating to the family planning policy are not reported in the media or discussed publicly. We asked if he could identify any objective evidence that clearly demonstrated that a breach of the one-child policy would result in this respondent being sent to prison. He was not in a position to do so.
9. We have concluded that we must allow the Secretary of State's appeal.
10. The document at pages 17 to 23 of the respondent's bundle appear to have been published in March 1995. There was nothing in the documents to show who had published it and, as we have indicated, we were only supplied with an extract of the document. On page 22, under the heading "Violations resulting from family planning policy", the document said "the Chinese constitution mandates the duty of couples to practice family planning. Since 1979 the central government has attempted to implement a family planning policy in China and Tibet that the government states is "intended to control population quantity and improve its quality". Central to this initiative is the "one-child per couple" policy. Central authorities have verbally condemned the use of physical force in implementing the one-child policy. However its implementation is left to local laws and regulations." We can find nothing in this document of to indicate that a breach of the one-child policy is likely to result in imprisonment. The CIPU report itself details the one-child policy in Section 6(b), at paragraph 6(b)116 onwards. At 6(b) 121, the reports says: "Disciplinary measures against those who violate the policy includes fines, within holding of social services, demotion and other administrative punishments that sometimes results in loss of employment. Levels of fines vary by region; in Shanghai the find for violating birth quotas is three times the combined salary of the parents, while in Zhejiang province it is 20% of the parents salary paid over 5 years. Unpaid fines have sometimes resulted in confiscation or destruction of homes and personal property by local authorities".
11. In short, there is no objective evidence that could have led the Adjudicator to believe that, on return to the Republic of China, this respondent will face imprisonment. We find that he was wrong to allow the respondent's asylum claim. He has failed to identify how the claim engaged the Convention. He appears to have allowed the asylum claim on the basis that this respondent will face imprisonment on her return to China, but there is simply no objective evidence before us to support this contention. He also allowed the respondent's Article 3 claim on the basis that she will be imprisoned. We find he was wrong to do so. The Adjudicator's consideration of the claim under Article 8 is also flawed, since it appears to be based on a breach of private life on return to China, in that the respondent and her child will, he suggests, be separated. That is, as Mr Gulvin suggested, speculation upon further speculation. There is no evidence that they will be separated. They undoubtedly have established a private life in the United Kingdom, but there is no evidence before us, nor was there before the Adjudicator, of any significant elements of private life enjoyed by them and we are persuaded that any breach of the respondent's Article 8 private life rights would be proportionate, given that the legitimate aim of immigration control is a very weighty consideration, which is not easily overridden.
12. For all these reasons, we allow the Secretary of State's appeal.

Secretary of State's appeal allowed.

Richard Chalkley

Vice President