ZC & Others (Risk - illegal exit – loan sharks) China CG  UKAIT 00028
Date of hearing: 27 February 2009
Date Determination notified: 20 July 2009
|Secretary of State for the Home Department||RESPONDENT|
(1) Individuals returning to China after having made unsuccessful claims for asylum are not reasonably likely to be imprisoned or subjected to administrative detention for having left China unlawfully; LJ (China – Prison Conditions) China  UKIAT 00099 upheld. Those able to provide the authorities with information on loan sharks or snake heads are even less likely to be at risk of prosecution.
(2) The evidence does not establish that failed asylum seekers indebted to loan sharks will come to harm on return to China; the information on loan sharks in HL (Risk – Return – Snakeheads) China CG  UKIAT 03683 is still applicable.
REASONS FOR THE DECISION THAT THERE IS A MATERIAL ERROR OF LAW IN THE DETERMINATION
1. The Appellant and her two dependent children sought asylum in the United Kingdom by an application dated 27 June 2008. The Respondent refused the application on the basis that there was a sufficiency of protection for the Appellants from the loan sharks they feared on return to China. The Appellants appealed to the Tribunal and by a determination dated 27 September 2008, Immigration Judge Pacey allowed their appeals. The Respondent sought a reconsideration order which was granted by a senior immigration judge on 8 October 2008.
At the hearing before me the Appellants were represented by Mr Pipe of Counsel and the Respondent was represented by Miss Karunatilake, Home Office Presenting Officer.
Miss Karunatilake relied on all her grounds in the application for reconsideration. I summarise them briefly as follows. The immigration judge had found in the course of his determination that the Appellants could relocate internally in order to be free from risk of harm at the hands of the loan sharks. Notwithstanding this clear finding of internal relocation, the judge went on to allow the appeal. This was an error. The judge had then gone on apparently to allow the appeal on the basis that, as an illegal emigrant, the Appellant would be at risk of receiving a sentence of about three months and therefore the appeal should be allowed. However the judge had failed entirely to consider whether the short period involved would amount to persecution for a Convention reason. There was no consideration of whether this would give rise to treatment which would cross the threshold required for Article 3 of the Human Rights Convention either. The grounds also submitted that the immigration judge had failed to have regard to the principles established by the Tribunal in the case of LJ China but this was not an issue which Miss Karuntilake actively pursued during her submissions.
4. Mr Pipe, on behalf of the Appellants, referred to his Rule 30 Reply. There was no challenge to the immigration judge's credibility findings. The findings were that the Appellant came within the definition of a particular social group, was at risk and there was an absence of sufficient protection. The only challenge in the grounds for reconsideration was in regard to the question of internal relocation. The immigration judge had made a sustainable finding that, because of the likelihood of the Appellant being imprisoned for illegal emigration upon return, relocation would not in the circumstances be a reasonable option. The immigration judge had referred to the most recent objective evidence before her. The immigration judge did not find that such imprisonment would in itself constitute persecutory treatment but that it rendered relocation unreasonable. Looking at the heading under which this matter was considered in the determination, it was clearly part of her consideration on internal relocation.
5. At the end of the submissions I reserved my decision which I now give together with my reasons.
6. Material error of law
I am satisfied that a material error of law has been demonstrated with regard to the determination of the immigration judge. While it is clear from the determination that the immigration judge accepted the account of the First Appellant and found her to be credible, she also found in paragraph 41 that there would not be a sufficiency of protection in her home area. The immigration judge then went on, in paragraph 42, to look at the question of internal relocation. She had considerable reservations regarding the credibility of the reasons given by the First Appellant for not being able to relocate elsewhere in China. She set out those reasons in paragraphs 42 to 46. She clearly concluded that the evidence pointed to the First Appellant being able to relocate to another part of the country. However she then went on in the final paragraph of the determination, paragraph 47 to state as follows:
"however, I note and accept, again from the objective evidence, namely the COI… that illegal emigration is subject to a sentence of up to one year in prison, with first offenders probably receiving a sentence of about three months. It is reasonable to suppose, therefore, that, on the balance of probabilities, this might happen to the first appellant. Since the appeals of the second and third appellant stand or fall with that of the first appellant, their appeals must be allowed on this basis"
7. While the submission made by Mr Pipe may be correct - namely that paragraph 47 contained the reasoning of the judge as to why internal relocation was not possible, (as opposed to being a conclusion that the risk of imprisonment as an illegal emigrant was considered by the judge to be treatment amounting to persecution for the purposes of the Refugee Convention) nevertheless there is an absence of reasoning to indicate how the judge concluded that the internal relocation, which she had accepted was reasonably available in the preceding paragraphs, would nevertheless not be a reasonable option on account of the risk of a three-month prison sentence on return. There was no consideration by the judge at all of whether there was a real risk that the Appellant would be imprisoned; nor was there any consideration by the judge as to whether that course of events, were there to be a real risk that it would befall the Appellant, would render internal relocation unreasonable for this Appellant.
8. The Tribunal must be slow to overturn a decision in favour of an Appellant without good reason. Furthermore, it is important to remember the guidance given by the Court of Appeal in R (Iran)  EWCA Civ 982. Although given prior to the commencement of the current reconsideration procedure, it is nevertheless instructive. Adjusting the terminology to meet the current Tribunal structure and reconsideration process, the following principles are relevant. The Tribunal must be satisfied that the correction of an error would have made a material difference to the outcome or fairness of the proceedings. Furthermore, a decision should not be set aside for inadequacy of reasons unless the judge failed to identify and record the matters that were critical to his decision on material issues in such a way that the Tribunal, on a reconsideration, is unable to understand why he reached that decision. However, with this in mind, I am satisfied that the judge has not properly considered the matter of internal relocation and there is an absence of reasoning to show how she arrived at her decision to reject internal relocation and allow the appeal.
9. I therefore set aside the decision of the immigration judge.
10. Further conduct of this appeal
The next matter for consideration is whether this appeal that should be sent back to the original hearing centre for a second stage reconsideration. Miss Karunatilake submitted that there was no need for there to be any fresh evidence or fresh findings of fact, and, therefore, it was not appropriate to send the matter back for a second stage reconsideration. She submitted that I should review the evidence and substitute my own decision. Mr Pipe submitted that it was necessary to send the matter back to the hearing centre for a second stage reconsideration on the basis that further evidence would be needed with regard to the issue of relocation.
11. I have concluded that it is not necessary for the matter to be remitted to the original hearing centre but it is appropriate to permit the parties' representatives an opportunity to make submissions to me on the matter of internal relocation. The matter of internal relocation was clearly the matter of evidence and submissions at the original hearing and I see no reason for additional evidence to be called unless that evidence is new evidence which was not reasonably available at the hearing before Immigration Judge Pacey.
12. I adjourn this matter to be listed here at Field House (before me if possible) for a second stage reconsideration, limited to submissions on the existing evidence regarding internal relocation and, where relevant, any new evidence not reasonably available at the time of the previous hearing. If any such fresh evidence is to be produced, it must be filed and served in line with the directions I now give, together with an explanation/evidence regarding why it was not reasonably available at the hearing before Immigration Judge Pacey.
Findings and conclusions
Article 322 of the Criminal Law covers the penalties for illegal emigration. It states, "Whoever violates the laws and regulations controlling secret crossing of the national boundary (border), and when the circumstances are serious, shall be sentenced to not more than one year of fixed-term imprisonment and criminal detention or control" (35.03: added emphasis).
As reported by the Canadian IRB on 9 August 2000, "Leaving China without exit permission or a passport is a criminal offence in China punishable of [sic] up to one year in prison. Only repeat offenders would get a sentence approaching the maximum. Most first time offenders would get a short sentence, depending on the circumstances of their case but probably with sentences of 3 months."
"Article 52. In imposing a fine, the amount of the fine shall be determined according to the circumstances of the crime.
Article 53. A fine is to be paid in a lump sum or in instalments within the period specified in the judgment.
Upon the expiration of the period, one who has not paid is to be compelled to pay. Where the person sentenced is unable to pay the fine in full, the people's court may collect whenever he is found in possession of executable property.
If a person truly has difficulties in paying because he has suffered irresistible calamity, consideration may be given according to the circumstances to granting him a reduction or exemption." (35.04).
"There is some dispute about what happens to those who are repatriated to China, in part because there have been so few… A Department of Homeland Security spokesman told me, 'We have no reports of people who have been sent back to China being persecuted.' Others, though, are not so sanguine. Two years ago, Richard Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit, vacated a deportation order for a Chinese youth because the immigration judge did not consider the evidence – numerous human rights reports from both U.S. and British organizations – that the asylum seeker might well be sent to jail or a labor camp if returned to China. Posner was concerned that the Chinese youth might be tortured upon his return, though he also conceded that 'the treatment of repatriated Chinese by their government is to a considerable extent a mystery.' Indeed, one Chinese legal scholar I spoke with, Daniel Yu, said that while there is a law on the books in China that calls for a short jail sentence if a person leaves the country illegally, more than likely whatever punishment there might be is at the discretion of local officials." (35.05, cited in COIR)
"The law neither provides for a citizen's right to repatriate nor otherwise addresses exile. The government continued to refuse re-entry to numerous citizens who were considered dissidents, Falun Gong activists, or troublemakers. Although some dissidents living abroad were allowed to return, dissidents released on medical parole and allowed to leave the country often were effectively exiled. Activists residing abroad were imprisoned upon their return to the country.
"MPS officials stated that repatriated victims of trafficking no longer faced fines or other punishment upon their return. However, authorities acknowledged that some victims continued to be sentenced or fined because of corruption among police, provisions allowing for the imposition of fines on persons travelling without proper documentation, and the difficulty in identifying victims." (35.06; cited in COIR).
"snakeheads have no reasons to harass those smuggled Chinese who have returned to China…snakeheads are now even willing to pay the fines for the deportees, mainly to make sure that the deportees will not tell the Chinese authorities the identities of the snakeheads" (D4).
"Citizens who have obtained Exit and Entry Documents by illegal means such as making up stories, providing false evidence or paying a bribe, in case of less serious situations, will receive warning or be detained for no more than 5 days. In case of serious situation related to a crime, offenders have to bear criminal responsibility according to the related articles in the Criminal Law of the PRC and National People's Congress Standing Committee supplementary Regulations concerning heavy penalty on the criminal offence of organisation and transportation of people across the border/frontier" (D6).
"Those departing the country illegally will be detained for a period less tan 15 days by the police or have to pay a fine between 1000 to 5000 RMB. On top of the detention in serious cases, they will be imprisoned or detained for a period under 2 years as well as having to pay a fine" (D8).
17.3 Reported determinations will receive a neutral citation number in the form  UKAIT 00000 and will be widely available (including being available on the Tribunal's website). They will be anonymised and will be cited by the neutral citation number.
18.2 A reported determination of the Tribunal or of 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 or the IAT that determined 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.
"The evidence adduced in this appeal did not support the conclusion that an individual returned to China, after making an unsuccessful claim to asylum in the United Kingdom, was reasonably likely to be
(a) imprisoned or subjected to administrative detention on his return for having left China unlawfully, and
(b) whilst imprisoned or being detained on that account, subjected to Art. 3 maltreatment.
Such a conclusion could not properly be based on the general statement in the US State Department Report to the effect that conditions in Chinese prisons and administrative detention facilities were "harsh and frequently degrading". To support such a conclusion, clear evidence would be required from bodies such as Amnesty International, Human Rights Watch or the Canadian Immigration and Refugee Board to the effect that other persons whose histories and circumstances were reasonably comparable with those of the individual concerned had, on their return in the comparatively recent past, been imprisoned or detained and subjected to such maltreatment in sufficient numbers and/or with sufficient frequency. Such evidence as there was pointed in the opposite direction.
"no Chinese national who left China unlawfully …could be removed to China by the United Kingdom without the United Kingdom being in breach of its obligations under Art.3 of the ECHR"
and that this was a conclusion not properly open to him. Before such a decision could have been reached it was necessary to have significantly more detailed evidence as to:
"1. the frequency with which prisoners in China are subjected to degrading treatment and/or the numbers or percentages of prisoners in any one year who are subjected to such treatment,
2. the history, circumstances and lengths of sentences – and the nature of the offences of which they have been convicted – of the prisoners who have been subjected to degrading treatment whilst in custody in China, and
3. the length of any sentence of imprisonment (as opposed to the maximum sentence) which was likely to be imposed on the individual concerned …
both in China generally and in…(one's) home province)" (paragraph 15).
"No positive evidence was placed before us to support the proposition, and we are not satisfied, that any persons…who have been returned to China within the past 12 months have been persecuted, tortured or subjected to inhuman or degrading treatment or punishment for having left China unlawfully either at all or in such numbers or with such frequency as to indicate that there is a reasonable likelihood of any of those things happening to him (Mr L). If persons who were returned were reasonably likely to be persecuted, tortured or subjected to inhuman or degrading treatment or punishment on that account, it is to be expected that reports of that having occurred in other cases would have come to the attention of bodies such as Amnesty International, Human Rights Watch – and have been included either in the US State Department Report, the Canadian Immigration and Refugee Board Reports or the Country Assessment. No such reports were placed before us. We are therefore not satisfied that any such things have happened in any comparable cases in such numbers or with such frequency as to indicate that there is a reasonable likelihood of their occurring in Mr L's case" (paragraph 15a).
"that first offenders for illegal emigration, on repatriation, sometimes faced fines and that after a second repatriation "could be sentenced to re-education through labour ".
"no basis for thinking, and we are not satisfied, that he would be sentenced to a substantial term of imprisonment for unlawful emigration…there appears to be a substantial chance that no more severe sanction than a fine would be imposed" (paragraph 15c).
"there is no indication, that imprisonment for those unable to pay is either the normal course or reasonably likely to be imposed".
"demonstrate a consistent pattern of gross, flagrant or mass violations of the human rights of prisoners. If there was such a consistent pattern, we would expect to find more evidence than there is of the scale and frequency of human rights abuses against prisoners in China." (paragraph 12; TC).
"The Special Rapporteur visited a total of 10 detention facilities… In general, the Special Rapporteur found that although the specific conditions of the facilities varied, in terms of basic conditions, such as food, medicine and hygiene, they were generally satisfactory" (paragraph 12.03).
"even if money was owed by the Appellant to Snakeheads or loan sharks there is indeed a lack of evidence that the Appellant would be actually pursued for the debt particularly in the circumstances of this case. The Adjudicator found that the Appellant did owe money to Snakeheads. We find ourselves in agreement with Mr Yuen that he was probably using the expression "Snakeheads" in the generic sense and was incorporating the possibility that money was also owed to a loan shark" (paragraph 39).
"It is however noteworthy that it does not appear to be the Appellant's claim that he has experienced such treatment whilst in this country. As Mr Davidson rightly submitted if the Appellant was not being pursued here for any debt then it would be unlikely that he would be pursued by Snakeheads upon return…" (paragraph 40)..
"there is evidence to indicate that individuals and their families or guarantors in certain circumstances in China may be at risk, that Snakeheads are violent and ruthless towards those who they believe can repay their debts but fail to do so" (paragraph 47).
"The evidence does not satisfy us that those who cannot pay because they have returned to China would meet with similar treatment" (paragraph 48).
"Quite simply the totality of the evidence does not establish that a returning failed asylum seeker who is indebted to snakeheads or loan sharks will come to harm on return to China. If this had happened to returning failed asylum seekers from the United Kingdom or other countries it is likely that relevant evidence would have become available" (paragraph 12).
"In this appeal we do not need to consider or make specific findings in relation to what might happen to an individual who owes money to snakeheads or loan sharks, remains in the United Kingdom and does not for whatever reason make the required payments. Suffice it to say that there is evidence before us to indicate that such individuals and their families or guarantors in China may be at risk. There are strong indications that the snakeheads are violent and ruthless, at least towards those who can pay but do not do so. This does not mean that they will be equally ruthless towards those who cannot pay because they have been returned to China" (paragraph 13).
"The principal reason for our conclusion that the Appellant would not be at risk on return is the lack of any country information to indicate that she would be at risk. Nevertheless, logic also supports this conclusion. The snakeheads and loan sharks are violent and unscrupulous, but they are running what is likely to be a highly profitable business and would prefer to avoid actions which might damage that business. Violent or other persecutory action against those who are returned to China would be unlikely to result in the recovery of much money, but would be likely to discourage future customers. Amongst the press reports submitted by Mr Yuen are reports of snakeheads going to great lengths to build spectacular houses to show to potential customers, as an indication of the sort of accommodation and lifestyle they can expect if they travel to a western country. If the snakeheads or loan sharks go to these lengths it is not likely that they would risk deterring potential customers by taking hostile action against those who are returned, usually through no fault of their own. Clearly it is a different matter to ensure that those who remain abroad and are able to pay continue to pay for fear of what might happen to then or their relatives at home" (paragraph 15).
Dr R Kekic
Senior Immigration Judge
|1.||28.09.99||Immigration and Refugee Board of Canada (IRB); Country of Origin Research. Extended Response to Information Request|
|2.||29.03.03||Congressional Executive Commission on China; China's Household Registration System. Sustained Reform needed to protect China's rural migrants|
|3.||15.11.04||Time online; China's Shadow Banks|
|4.||31.05.05||China View: Guangdong police arrest 20 loan sharks|
|5.||20.09.06||US Congressional Executive Commission on China; Annual Report 2006|
|6.||11.01.07||Human Rights Watch; World Report for 2006: China|
|5.||11.03.08||US State Department report for 2007; China|
|6.||06.05.08||Freedom House; The world's most repressive societies: China|
|7.||01.06.08||UK Border Agency; Country of Origin Information Report: China|
|8.||Undated||Amnesty International report for 2008: China|
|9.||Undated||Amnesty International; China: internal migrants: discrimination and abuse. The human cost of an economic miracle|