LJ (Prison conditions-no risk)
| Jurisdiction | England & Wales |
| Judge | Dr H H Storey,Mr C H Bennett,Ms P L Ravenscroft |
| Judgment Date | 10 May 2005 |
| Neutral Citation | [2005] UKIAT 99 |
| Court | Immigration Appeals Tribunal |
| Date | 10 May 2005 |
[2005] UKIAT 99
IMMIGRATION APPEAL TRIBUNAL
Dr H H Storey (Vice President)
Mr C H Bennett
Ms P L Ravenscroft
LJ (Prison conditions-no risk) China
Li Hong Jie (Mr L) was born on 9 January 1980. He is a national of China. He arrived in the United Kingdom on 29 March 2000. He subsequently (the papers do not indicate the precise date) claimed asylum. The substance of his claim as put to the Secretary of State (at interview on 27 June 2000) was to the following effect.
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(a) He had lived Tan Tou in the province of Fujian. His solicitor had lived at Show Wu — also in the province of Fujian. Show Wu had been c.20 km from Tan Tou.
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(b) In c.June 1999, family planning officers had visited his sister and had required her to produce documentary evidence showing that she had been sterilised. She had been unable to produce a document to that effect. She had therefore been told that she was required to pay a fine. He had been unwilling to pay the fine. The officials had then stated that they would move her refrigerator in lieu of payment.
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(c) He (Mr L) had been present at the time. Strong words had been spoken. One of the family planning officials had kicked him. He had seized the leg of one of the officials. That official had fallen and struck his head. The other officials had gone to assist. His sister had told him (Mr L) to make his escape.
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(d) He had hidden with friends for “several months” in Show Wu. He had feared that he might be found. He had heard that another man who had come to the attention of the family planning official had been seriously maltreated — so badly that he (that man) had suffered a serious injury to his kidneys. He had also been informed that, if arrested, he might be sentenced to three years imprisonment. He had therefore decided to leave China.
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(e) His father had raised the necessary money. A false passport (in the name of Chen Chang Hwei) had been obtained by making a corrupt payment. He had travelled via Russia and Azerbaijan. From Azerbaijan, he had travelled (by air) to the United Kingdom.
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(f) He believed that he was still “wanted” in China. The brother-in-law of the official whose leg he had seized and who had fallen, had been a member of an organisation named “110”. The “110” organisation was more powerful than the police. The police and the “110” were looking for him.
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(g) His father had attempted to resolve matters with the authorities. But they had been “angry and unreasonable”.
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(h) He had no criminal convictions in China. Nor had he been a member of a political party. Apart from his grandfather's brother, who had been exiled to the North of China in c.1984 — 1986, no members of his family had been involved in political activity or had faced persecution.
At the conclusion of his interview, Mr L requested that he be permitted to remain for three years. He then indicated:
“Then my record would be clear, in China — it is written off after three years — and I would be able to return to my father.”
On 22 November 2000, the Secretary of State refused Mr L's application. In consequence, on 15 October 2001, Mr L was refused leave to enter the United Kingdom. The notice of the decision indicated that it was proposed to give directions for his removal to China.
On 18 October 2001, Immigration Advisory Service (IAS) gave notice of appeal and served a Statement of Additional Grounds under s.74 of the Immigration and Asylum Act 1999 on Mr L's behalf. In them, they asserted (in summary) that the removal of Mr L, in consequence of his having been refused leave to enter, would involve the United Kingdom in breaches of its obligations under:
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(a) the 1951 Refugee Convention, and
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(b) Arts.3, 4, 6, 9, 10 and 11 of the European Convention on Human Rights.
On 17 November 2003, IAS informed the Secretary of State that it was no longer representing Mr L.
Mr L's appeal was heard by an Adjudicator, J S Fountain esq, on 20 February 2004. Neither Mr L nor any representative of the Secretary of State was present at the hearing. The hearing was a “first hearing”. The reply form (ADJ62) to the standard form directions had not been returned. There was no explanation before Mr Fountain or Mr L's absence. He concluded that he was bound by Rule 44(1) of the Immigration and Asylum (Procedure) Rules 2003 to determine the appeal in Mr L's absence.
By his determination (promulgated on 16 March 2004) Mr Fountain dismissed Mr L's appeal on “asylum” grounds but allowed it on “human rights” grounds. He concluded:
(a) “…. the scenario set by [Mr L] in his evidence is plausible (see para.16.3),
(b) Mr L was at risk to a sentence of imprisonment for assaulting the family planning official and for having left China unlawfully, and that
(c) (in reliance on paragraph 5.44 of the then current Country Assessment (October 2003), there was a real risk that he would be subjected to inhuman or degrading treatment or punishment on return to China by reason of the conditions obtaining in Chinese prisons.
He quoted paragraph 5.44 in the following terms:
“The US State Department Report for Year 2001 states that conditions in both the prison system and the administrative detention facilities are ‘harsh and frequently degrading’. Facilities are often overcrowded, with poor sanitation and of a poor constructional quality. Prisoners often rely upon food and medicine supplements from relatives, with a very low standard of medical care available. Prison discipline relies upon guards appointing ‘cell bosses’ with many attendant abuses.”
The Secretary of State gave notice of appeal against Mr Fountain's determination. Permission to appeal was granted by Miss K Eshun (Vice President) by a determination dated 23 June 2004. In granting permission to appeal, Miss Eshun wrote as follows:
“[Mr Fountain] dismissed [Mr L's] asylum appeal. However, he allowed the appeal under Art.3 of the ECHR (paragraph 17.2) on the basis that [Mr L] will face a prison sentence in China and that the prison conditions are such that he is likely to be subjected to degrading treatment sufficiently serious to engage Art.3… I am granting leave so that the Tribunal can consider whether prison conditions in China reach the threshold of Art.3.”
Because Mr Fountain's appeal was promulgated on 16 March 2004 (i.e. after 8 June 2003), the provisions of s.101(1) of the Nationality, Immigration and Asylum Act 2002 apply to this appeal. That means that, if the Secretary of State's appeal is to succeed, he must establish that there is an error of law in Mr Fountain's determination.
Notice of the time and place of the hearing of the appeal was sent to Mr L by first class post, at 7 Tonge Moor Road, Bolton, Lancashire, BL2 2DH, the address which had been given for him in the notice of appeal against the Secretary of State's decision, his last known address. Regrettably, the date on which the notice was sent has (quite plainly) been wrongly stated as being “19/2/4”. That cannot be correct — because (as indicated above) Miss Eshun's grant of leave was not made until 23 June 2004 and the hearing before Mr Fountain took place on 20 February 2004. Nor can it, as a matter of reality, have been 19 February 2005 — because that day was a Saturday and we are aware the Tribunal staff do not work on Saturdays. The file cover shows that, after the grant of leave by Miss Eshun, (the file) was sent to the Tribunal Listing Section on 7 July 2004 and to HH (which we understand to be “Hearing Hold” on 19 July 2004). Our conclusion is that the date of issue given on the file copy is an error for 19 July 2004. In these circumstances, we are satisfied that the notice of the time and place of the hearing had been properly served on Mr L.
When the appeal was called on for hearing, neither Mr L nor any person on his behalf appeared. There was no explanation for his absence. Because we were satisfied that:
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(a) the date, time and place of the hearing had been sent to Mr L at his last known address, and
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(b) there was no explanation, and therefore no satisfactory explanation, for his absence,
we were required by the mandatory, provisions of Rule 44 of the Immigration Asylum and Appeals (Procedure) Rules 2003 to determine this appeal in Mr L's absence.
With very greatest of respect to him, we are satisfied that Mr Fountain's determination is vitiated by the following errors in law.
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(a) He did not make clear factual findings — at least, by reference to the correct standard of proof (reasonable likelihood) in relation to Mr L's evidence as to the events which occurred in China. What he wrote (paragraph 16.3) was as follows:
“Accordingly based on the background evidence it can be seen that the scenario set by [Mr L] in his evidence is plausible.” [emphasis added].
He did not go on (expressly) to conclude that the account passed the test of reasonable likelihood. Whether an account is “plausible” is not the same as whether it is reasonably likely to be true.
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(b) Let it now be assumed that Mr Fountain's conclusion that Mr L's evidence was “plausible” is to be treated as being a conclusion that it was reasonably likely to be true. That conclusion was not open to him on the evidence before him. There was no positive evidence before Mr Fountain that Mr L's sister had any children — let alone that she had more than one child. The only evidence before him was that contained in the notes of interview. All that Mr L had stated at interview was that his sister had been required to produce a document to vouch that she had been sterilised and that she did not do so. There was no evidence before Mr Fountain to support the proposition, and we are not satisfied, that it was the practice of the family planning authorities in Fujian in c.1999 (or at any other time) either...
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