Liu v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,LORD JUSTICE PILL,Lord Justice Maurice Kay,Lord Justice Rix,Lord Justice Ward |
| Judgment Date | 17 March 2005 |
| Neutral Citation | [2005] EWCA Civ 249,[2004] EWCA Civ 1345 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2005 |
| Docket Number | Case No: C4/2004/1291,C4/2004/1291 |
[2004] EWCA Civ 1345
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL
(MR R CHALKLEY)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Hooper
C4/2004/1291
MS M PLIMMER (instructed by Miles Hutchinson & Lithgow) appeared on behalf of the Applicant
The RESPONDENT was not represented and did not appear
This is an application for permission to appeal a decision of the Immigration Appeal Tribunal, said to have been notified on 25th March 2004. We grant any short necessary extension of time.
The IAT in that decision allowed the appeal of the Secretary of State from the decision of the adjudicator, Mr Bryan. There is one discrete issue. The adjudicator had found the appellant to be a member of a social group "which may be defined as women of child-bearing age in the PRC".
Before the IAT Ms Plimmer abandoned that group and redefined the relevant social group for the purposes of the Refugee Convention as "rural women accused of transgressing social mores in relation to the population control policy by choosing to have a third child". That definition led the IAT to conclude that she was defining the social group by reference to the fact of persecution. For that reason it allowed the appeal.
Before us Ms Plimmer has sought to put the relevant social group in a different way. Having considered carefully again the decision of the House of Lords in Islam v Secretary of State for the Home Department and R v Immigration Appeal Tribunal ex parte Shah [1999] 2 AC 629, it seems to me to be arguable that she was a member of a social group for the purposes of the convention, and for those reasons I would grant permission to appeal.
I agree.
Order: application allowed.
[2005] EWCA Civ 249
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Rix and
Lord Justice Maurice Kay
Case No: C4/2004/1291
Melanie Plimmer (instructed by Messrs Miles Hutchinson & Lithgow) for the Appellant/Applicant
Kate Gallafent (instructed by Treasury Solicitors) for the Respondent
The appellant is a citizen of the Peoples' Republic of China. She was born on 8 May 1968. She is married and has two children. She arrived in this country on 10 June 2002 and claimed asylum two days later. Her husband and children remain in China. Her application for asylum was a harrowing one. However, her account of events in China was not accepted by the Secretary of State and in a letter dated 29 July 2002 he rejected her claim. She appealed to an adjudicator. In a decision promulgated on 17 July 2003 he allowed her appeal on both asylum and human rights grounds. The Secretary of State accepted the decision of the adjudicator on human rights and, accordingly, the appellant now has leave to remain in this country. However, the Secretary of State appealed to the Immigration Appeal Tribunal on the question of asylum. In a determination notified on 25 March 2004 the Immigration Appeal Tribunal allowed the appeal of the Secretary of State on the asylum issue. This means that, whilst the appellant is free to remain in this country at least for the time being, she does not have refugee status. She is thus disadvantaged in a number of ways, one of which concerns the prospect of her husband and children being permitted to join her here. Although she was initially refused permission to appeal to this court by the Immigration Appeal Tribunal and by the Lord Justice who considered the application on paper, on 7 October 2004, following an oral application, permission to appeal was granted by Pill and Hooper LJJ.
So much for the procedural history. I now turn to the factual background. The facts found by the adjudicator and subsequently accepted as such by the Secretary of State are as follows. In October 2002, when her children (who are both girls) were aged fifteen and ten, the appellant was eight months pregnant with her third child. Under Chinese law couples have the right to have a single child and eligible couples may apply for permission to have a second child. The law requires regional authorities to use quotas and other measures to limit the total number of births in the region. There is a history of forced abortion and sterilisation. Although the law has been amended in recent times a report of the US Department of State referred to in the determination of the adjudicator states:
"Central Government policy formally prohibits the use of physical coercion….however intense pressure to meet birth limitation targets set by government regulations has resulted in instances in which local birth planning officials reportedly have used physical coercion to meet government goals."
The adjudicator also referred to an expert report by Dr. Harriet Evans which includes this description of the implementation of the "one child policy" at the local level:
"It is [in] the complex context of rural need and local official pressure that forced abortions and sterilisations have been and continue to be carried out on women into their third and subsequent term."
It is against this background, which is not disputed by the Secretary of State, that the events of October 2002 took place. The appellant was forcibly taken to a hospital and the eight month foetus was removed by caesarean section. No attempt at sterilisation occurred on that occasion but sometime later the appellant was required to attend hospital for sterilisation. She refused to do so. Officials came into her home in order to remove her to hospital by force. There was a fight in the course of which her husband returned home. The appellant sought to defend herself by taking up a stick of the kind used for carrying heavy weights across the shoulders. She struck one of the three officials. She succeeded in escaping to the railway station where she hid in a goods train which took her to another province. She remained there illicitly for some months before managing to leave China so as to make her way to this country. Her application for asylum is based on a fear of persecution in that she fears that upon return to China she would be forcibly sterilised and would be severely punished for having assaulted an official in self defence. She would be imprisoned in inhuman and degrading conditions.
Once the adjudicator had accepted the account of the appellant, it was virtually inevitable that he would find that she had a well founded fear of persecution. That, however, is not enough. Article 1(A)(2) of the Refugee Convention provides that the term "refugee" should apply to any person who
"…..(2) owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable to or, owing to such fear, is unwilling to return to it."
Thus, the well founded fear of persecution has to be for a Convention reason. In this case the appellant had to establish that her well founded fear of persecution was for "membership of a particular social group". The adjudicator held that the appellant was a member of "a particular social group", that group being defined as "women of child bearing age in China". He did not consider it necessary for there to be any further refinement of the definition. He therefore concluded that the appellant had a well founded fear of persecution for a Convention reason. In view of his factual findings, it was inevitable that he would also conclude that upon return she would face a real risk of inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights and Fundamental Freedoms.
In his grounds of appeal to the Immigration Appeal Tribunal, the Secretary of State sought to take issue with various aspects of the determination of the adjudicator. In particular, for present purposes, he took issue with the finding of a particular social group as defined by the adjudicator.
Before the Immigration Appeal Tribunal, Miss Plimmer sought to redefine the particular social group into which her client fell. Her submission and the conclusion of the Immigration Appeal Tribunal can be seen from this passage in the determination of the Tribunal (at paragraph 13):
"Undoubtedly, women of child bearing age in [China] are a particular social group. However, that is not the reason that this appellant fears persecution. Counsel suggested that this appellant feared persecution because she was a member of a social group defined as
'rural women accused of transgressing social mores in relation to the population control policy by choosing to have a third child'.
The difficulty we have with that definition is that it is defining membership of a group, by reason of the persecution. What this respondent fears, is that on her return to China she will be forced to undergo sterilisation, because she has been pregnant...
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