Mh (ap) For Judicial Review Of A Decision Of The Upper Tribunal (immigration And Asylum Chamber)
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2014] CSOH 112 |
| Court | Court of Session |
| Published date | 08 July 2014 |
| Date | 08 July 2014 |
| Year | 2014 |
| OUTER HOUSE, COURT OF SESSION
| |
|
| [2014] CSOH 112
|
|
| OPINION OF LORD DOHERTY
in the Petition of
M.H (A.P.)
Petitioner;
For
Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) to refuse to grant the petitioner permission to appeal
________________
|
Petitioner: Caskie; Drummond Miller LLP, Solicitors
Respondent: Pirie; Office of the Advocate General for Scotland
8 July 2014
Introduction
[1] The petitioner seeks judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) dated 7 August 2013 in terms of which Upper Tribunal Judge McKee refused the petitioner’s application for permission to appeal to the UT from a decision of the First-tier Tribunal (“FTT”) dated 4 June 2013. The matter came before me for a procedural first hearing.
Decision of the FTT
[2] The petitioner is a citizen of China. She arrived in the UK on 1 June 2006 and claimed asylum on 19 June 2006. On 17 August 2012 her application for asylum was refused. On 5 March 2013 she submitted further representations which the Secretary of State for the Home Department (“the respondent”) treated as a fresh claim. On 22 April 2013 the respondent refused the petitioner’s asylum claim and decided to issue directions for her removal. The petitioner appealed against that decision.
[3] Before the FTT the petitioner claimed to be a refugee within The Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Alternatively she claimed humanitarian protection pursuant to paragraph 339C of the Immigration Rules. She also claimed that returning her to China would breach her article 3 and 8 ECHR rights.
[4] The petitioner claimed to have a well-founded fear of persecution because of a combination of her religion and her membership of a particular social group. She claimed to be a member of Huhan Pai, a Christian group sometimes called “The Shouters”. The particular social group she was a member of was those who had breached family planning regulations - she was an unmarried mother who had had a second child.
[5] The FTT was satisfied that the petitioner was a Christian, but not that she was a member of the Huhan Pai sect. In relation to the latter matter it concluded “that there is not enough evidence to be able to make a finding in fact that the appellant is a member of the Huhan Pai sect.” It approached matters on the basis that if she returned to China it would be as a Christian who was not a member of one of the five registered churches and who would not have a prominent profile; and it concluded that she would be able to practise her religion without real risk of persecution by the state. The FTT found that there was no risk to the petitioner of persecution as a result of her being an unmarried mother who had had two children. Even if it had been established that there was a risk of persecution of the petitioner on this score in her hukou area (as to which the FTT was not satisfied) it had not been demonstrated that the petitioner would be unable to live in a more liberal province. The FTT went on to consider and dismiss the petitioner’s claims that her return would give rise to breaches of articles 3 and 8 of ECHR. In that context it considered the best interests of the petitioner’s second child.
The FTT’s refusal of permission to appeal
[6] On 4 July 2013 Judge Grant refused permission to appeal. He described the grounds of appeal as “no more than a disagreement with the well-reasoned findings of the First-tier Tribunal judge which were open to him on the basis of the evidence put before him”. He went on to observe:
“Having given full and careful consideration to her claim that she was at risk on return as the mother of 2 illegitimate children he then went on to give equally full and careful consideration to each and every aspect of her Article 8 claim both within the Rules and under the ECHR, concluding with findings in respect of the best interests of her children and the requisite Article 8 balancing exercise.”
The UT’s refusal of permission to appeal
[7] In her application to the UT the petitioner contended (1) that the FTT had failed to give sufficient reasons for accepting that the petitioner was a Christian but not accepting that she was a Shouter; (2) that, while at several points in his decision Judge Doyle had identified the correct test in respect of the asylum claim (whether there was a real risk of serious harm were she to be returned) at one point in the decision (para 15(f)) reference had been made to “what is likely to happen”; (3) that he had failed to take into account evidence of the petitioner hosting prayer meetings at her home; (6) and (7) that he left out of account the fact that if the petitioner was imprisoned her second child would be imprisoned with her or separated from her, with consequent effects for mother and child.
[8] On 7 August 2013 UT Judge McKee refused permission to appeal. He gave the following reasons:
“The initial application for leave to appeal to the Upper Tribunal was refused by Judge Warren Grant for reasons with which I wholly concur. The application has now been renewed with a different set of grounds, but these do not evince a material error of law either. Judge Doyle was entitled to infer from the appellant’s ignorance of the fundamentals of her alleged faith that her account of religious persecution was concocted. Nit-picking about the accidental omission of “reasonably” to qualify “likely” does not undermine the judge’s reasoning on this aspect of the appeal. The possibilities of what might...
To continue reading
Request your trial