Gekhang (Interaction of Directives and Rules)
| Jurisdiction | UK Non-devolved |
| Judge | Deputy Upper Tribunal Judge G A Black |
| Judgment Date | 18 May 2016 |
| Neutral Citation | [2016] UKUT 374 (IAC) |
| Date | 18 May 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2016] UKUT 374 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HONOURABLE Lord Burns
DEPUTY UPPER TRIBUNAL JUDGE G A Black
For the Appellant: Mr P Jorro (Counsel instructed by Wilson Solicitors LLP)
For the Respondent: Mr P Wilding, Home Office Presenting Officer
TG (Interaction of Directives and Rules)
The interpretation of paragraph 334 of the Immigration Rules is subject to the Qualification Directive and the Procedures Directive.
The appellant, whose date of birth is [date], is an ethnic Tibetan from the People's Republic of China. He has appealed against a decision dated 30 September 2014 to remove him to India consequent to the refusal of his protection claim (for asylum made on 25 January 2013). The appellant appeals on the basis that he is a refugee whose removal from the UK would breach the UK's obligations under the Refugee Convention and/or that such removal would be unlawful as incompatible with his human rights.
This matter comes before us for a hearing de novo. In a decision and reasons promulgated on 6 January 2016 Deputy Upper Tribunal Judge Shaerf found that there had been a material error of law by the First-tier Tribunal and directed that the First-tier Tribunal decision be set aside in its entirety and for the appeal to be heard afresh. At the hearing before us both representatives confirmed that they had no objection to the appeal being heard before this Tribunal. Mr Jorro took specific instructions from his client and confirmed that they were ready for the hearing to proceed and were content for the matter to be dealt with by the Upper Tribunal.
The appellant claims that as an ethnic Tibetan from China he faces a real risk of persecution on return ( SP & others (Tibetan—Nepalese departure – illegal—risk) Peoples Republic of China CG [2007] UKUT 00021). He argues that the exclusionary provisions in Article 1E (Refugee convention) and the Qualification Directive (339C) do not apply as he is unable to return to India and would not be recognised as having the same or equivalent rights to an Indian National. The burden is on the respondent to show that he could be readmitted to India where there would be sufficient protection available.
In a letter dated 30.9.2014 the respondent accepted the reason (race) for claiming asylum as valid but did not accept that the appellant faced a fear of persecution in India. The respondent accepted that the appellant was from China. The respondent did not accept that the appellant had obtained a registration certificate (RC) through an agent and/or that he obtained using on false information in 2001. It was not accepted that the appellant was born in Tibet and went to India at the age of 7 years. As to readmission to India, the respondent considered that the appellant would be able to return to India relying on the stamp in his I certificate (IC) which showed his legal residence as a Tibetan refugee.
The respondent did not accept the appellant's claim to have protested outside the Chinese embassy in Delhi, when considered against the background material.
As to fear of return to China the respondent relied on the Swiss FMO cited at paragraph 64 of the refusal letter and in the COIR which stated that there were no reported deportations of Tibetan refugees to China and that the Indian government provided protection. The respondent considered that the appellant faced no risk as a failed asylum seeker in India. Section 8 Asylum & Immigration (Treatment of claimants etc) Act 2004 was relied on because of the delay in claiming asylum in the UK. Human rights were considered under the Rules and outside of the rules, and rejected.
The appellant's detailed claim is set out in a skeleton argument. As a Tibetan from China the appellant does not have the rights and obligations which are attached to Indian nationality or equivalent rights and obligations. Accordingly he ought not to be excluded from the benefits of the Refugee Convention pursuant to Article 1E and the Qualification Directive ( Directive 2004/83/EC) (QD) pursuant to Article 12(1). The appellant claims that he is a refugee in accordance with the Refugee Convention and pursuant to the Qualification Directive chapters (ii) and (iii) and that therefore he should be granted refugee status pursuant to the Qualification Directive Article 13. Further the Immigration Rules at paragraph 334(v) sets out the requirements for a grant of refugee status cannot lay down any conditions for a grant of refugee status in the UK that are “less generous” than or are more restrictive than, or are incompatible with, the conditions for a grant of refugee status in the EU as per the Qualification Directive and the Procedures Directive ( Directive 2005/85/EC) (PD). Paragraph 334(v) envisages a person who is a refugee nonetheless being refused refugee status on the basis that such refusal would not require him to go, in breach of the Geneva Convention, to a country in which his life or freedom would be threatened on account of race, religion, nationality, political opinion or membership of a particular social group, must be applied and interpreted in compliance with the Procedures Directive Sections (ii) Articles 25 to 27.
For the hearing the appellant produced a lever arch file containing authorities listed from tab one to tab eight. The bundle for the hearing consisted of bundle A, an updated bundle index to the appellant's documents and Sections A to D. That bundle included a skeleton argument dated 10 June 2015 and some updated evidence from pages 1 to 7 including a witness statement from Emma Terenius dated 17 February 2016. A supplementary bundle sent on 19 February 2016 included the appellant's supplementary witness statement, email correspondence, an application form Nepal 1992 and the appellant's mother's Chinese ID card together with certificate and translation. Additional evidence was produced by way of a letter dated 22 February 2016 which included an addendum to expert report by Dr Anand dated 21 February 2016, photographs of the appellant. Counsel produced a detailed skeleton argument dated 19 February 2016 which contained all the relevant legal provisions including the Refugee Convention, the Qualification and Procedures Directives and the Immigration rules paragraph 334. We refer to the same and have not reproduced that material in this decision.
The respondent's bundle included the Reasons for Refusal Letter, the appellant's screening interview and substantive interview. Mr Wilding relied on MA (Ethiopia) [2009] EWCA Civ 289 and a Swiss report from Focus entitled “The Tibetan Community in India” dated 30 June 2013.
We heard oral evidence from the appellant who relied on his witness statements and the evidence given to the FTT in June 2015. In addition there was written evidence from Mrs H and Miss Terenius which was not challenged. The appellant relied on an expert report from Dr Anand. Mr Jorro relied on his skeleton argument. Mr Wilding made oral submissions on the evidence from the appellant and prepared written submission on the legal issues. We have received those written submissions together with submissions in response from Mr Jorro.
The Appellant's Evidence
The appellant relied on his previous witness statements and the responses made in Home Office interview. He relied on his witness statement responding to the Reasons for Refusal Letter dated 30 September 2014. He confirmed that he had told the truth at the previous hearing before the First-tier Tribunal in June 2015. He relied on his third witness statement dated 19 February 2016 in which gave an explanation as to how he obtained further documentation and photographic evidence.
He identified himself in the photographs shown with the Dalai Lama. The photograph was taken in Oxford. Other photographs showed the appellant at a protest demonstration in Central London. He referred to page 55, bundle C which showed a photograph taken in Calcutta of him with Denzin Dsundu taken in 2005/2006.
In cross-examination the appellant confirmed that the identification certificate (IC) allowed him to travel internationally and he used it as a passport. That document stated incorrectly that he was born in India. He did not have a copy of his registration certificate (RC) which was left in India, having been submitted to the local authority in support of his application for an exit permit to go abroad. The procedure had changed since 2005. In 2012 he came to the UK with an exit permit. He had come to the UK with the intention to claim asylum.
When he obtained his RC he had given false information that he was born in India and that his parents were dead. In support of his application he produced a letter from his school which confirmed the false details and he paid some bribe money through an agency. He had also handed in an exam certificate. He acknowledged that the school had supported the lie on his behalf. He explained that there were a few Tibetan students who did not have permanent residence in India and were forced to do this in order to get a residence certificate.
He acknowledged that a more recent letter from the school (tab A page 2) confirmed that he was a student in India, he was from Lassa, Tibet, his date of birth and place of birth. He had applied for a RC in 2001. He did not know whether he could have applied at an earlier time. He used his RC in order to obtain his IC. For that application he had stated that he was born in India. He was assisted by an agent to fill out the form. He believed that the agent was working in the registration office where he had seen him...
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