Upper Tribunal (Immigration and asylum chamber), 2012-04-13, [2012] UKUT 97 (IAC) (AX (family planning scheme))
| Jurisdiction | UK Non-devolved |
| Judge | Ms D K Gill, Mrs J Gleeson |
| Status | Reported |
| Date | 13 April 2012 |
| Published date | 16 April 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 19 December 2011 |
| Subject Matter | family planning scheme |
| Appeal Number | [2012] UKUT 97 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
AX (family planning scheme) China CG [2012] UKUT 00097 (IAC)
THE IMMIGRATION ACTS
Heard at Field House (Procession House) Determination sent to parties on:
On 8-9 December 2009
29 November 2010
19 December 2011
Before
Upper Tribunal Judge Gleeson
Upper Tribunal Judge Gill
Between
AX
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr M Symes, Counsel instructed by Halliday Reeves Law Firm
For the Respondent: Mr J Johnson, Counsel instructed by the Treasury Solicitor Mr S Ouseley, Home Office Presenting Officer
Chinese family planning scheme:
(1) In China, all state obligations and benefits depend on the area where a person holds their ‘hukou’, the name given to the Chinese household registration system. There are different provisions for those holding an ‘urban hukou’ or a ‘rural hukou’: in particular, partly because of the difficulties experienced historically by peasants in China, the family planning scheme is more relaxed for those with a ‘rural hukou’.
(2) It is unhelpful (and a mistranslation of the Chinese term) to describe the Chinese family planning scheme as a 'one-child policy', given the current vast range of exceptions to the ‘one couple, one child’ principle. Special provision is made for ‘double-single’ couples, where both are only children supporting their parents and their grandparents. The number of children authorised for a married couple, ('authorised children') depends on the provincial regulations and the individual circumstances of the couple. Additional children are referred as 'unauthorised children'.
(3) The Chinese family planning scheme expects childbirth to occur within marriage. It encourages ‘late’ marriage and ‘late’ first births. ‘Late’ marriages are defined as age 25 (male) and 23 (female) and ‘late’ first births from age 24. A birth permit is not usually required for the first birth, but must be obtained before trying to become pregnant with any further children. The Chinese family planning scheme also originally included a requirement for four-year ‘birth spacing’. With the passage of time, province after province has abandoned that requirement. Incorrect birth spacing, where this is still a requirement, results in a financial penalty.
(4) Breach of the Chinese family planning scheme is a civil matter, not a criminal matter.
Single-child families
(5) Parents who restrict themselves to one child qualify for a “Certificate of Honour for Single-Child Parents” (SCP certificate), which entitles them to a range of enhanced benefits throughout their lives, from priority schooling, free medical treatment, longer maternity, paternity and honeymoon leave, priority access to housing and to retirement homes, and enhanced pension provision.
Multiple-child families
(6) Any second child, even if authorised, entails the loss of the family's SCP certificate. Loss of a family’s SCP results in loss of privileged access to schools, housing, pensions and free medical and contraceptive treatment. Education and medical treatment remain available but are no longer free.
(7) Where an unauthorised child is born, the family will encounter additional penalties. Workplace discipline for parents in employment is likely to include demotion or even loss of employment. In addition, a ‘social upbringing charge’ is payable (SUC), which is based on income, with a down payment of 50% and three years to pay the balance.
(8) There are hundreds of thousands of unauthorised children born every year. Family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child. Payment for birth permits, for the registration of children, and the imposition of SUC charges for unauthorised births are a significant source of revenue for local family planning authorities. There is a tension between that profitability, and enforcement of the nationally imposed quota of births for the town, county and province, exceeding which can harm officials’ careers.
(9) The financial consequences for a family of losing its SCP (for having more than one child) and/or of having SUC imposed (for having unauthorised children) and/or suffering disadvantages in terms of access to education, medical treatment, loss of employment, detriment to future employment etc will not, in general, reach the severity threshold to amount to persecution or serious harm or treatment in breach of Article 3.
(10) There are regular national campaigns to bring down the birth rates in provinces and local areas which have exceeded the permitted quota. Over-quota birth rates threaten the employment and future careers of birth control officials in those regions, and where there is a national campaign, can result in large scale unlawful crackdowns by local officials in a small number of provinces and areas. In such areas, during such large scale crackdowns, human rights abuses can and do occur, resulting in women, and sometimes men, being forcibly sterilised and pregnant women having their pregnancies forcibly terminated. The last such crackdown took place in spring 2010.
Risk factors
(11) In general, for female returnees, there is no real risk of forcible sterilisation or forcible termination in China. However, if a female returnee who has already had her permitted quota of children is being returned at a time when there is a crackdown in her ‘hukou’ area, accompanied by unlawful practices such as forced abortion or sterilisation, such a returnee would be at real risk of forcible sterilisation or, if she is pregnant at the time, of forcible termination of an unauthorised pregnancy. Outside of these times, such a female returnee may also be able to show an individual risk, notwithstanding the absence of a general risk, where there is credible evidence that she, or members of her family remaining in China, have been threatened with, or have suffered, serious adverse ill-treatment by reason of her breach of the family planning scheme.
(12) Where a female returnee is at real risk of forcible sterilisation or termination of pregnancy in her ‘hukou’ area, such risk is of persecution, serious harm and Article 3 ill-treatment. The respondent accepted that such risk would be by reason of a Refugee Convention reason, membership of a particular social group, 'women who gave birth in breach of China’s family planning scheme'.
(13) Male returnees do not, in general, face a real risk of forcible sterilisation, whether in their ‘hukou’ area or elsewhere, given the very low rate of sterilisation of males overall, and the even lower rate of forcible sterilisation.
Internal relocation
(14) Where a real risk exists in the ‘hukou’ area, it may be possible to avoid the risk by moving to a city. Millions of Chinese internal migrants, male and female, live and work in cities where they do not hold an ‘urban hukou’. Internal migrant women are required to stay in touch with their ‘hukou’ area and either return for tri-monthly pregnancy tests or else send back test results. The country evidence does not indicate a real risk of effective pursuit of internal migrant women leading to forcible family planning actions, sterilisation or termination, taking place in their city of migration. Therefore, internal relocation will, in almost all cases, avert the risk in the hukou area. However, internal relocation may not be safe where there is credible evidence of individual pursuit of the returnee or her family, outside the ‘hukou’ area. Whether it is unduly harsh to expect an individual returnee and her family to relocate in this way will be a question of fact in each case.
DETERMINATION AND REASONS
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The appellant appeals with permission against the decision of the Asylum and Immigration Tribunal (AIT) in January 2006 following a hearing before Judge Fitzgibbon who dismissed her appeal against the respondent's decision in October 2005, to refuse to grant her leave to enter the United Kingdom. In February 2007, Senior Immigration Judge Southern decided that the AIT had materially erred in law and set aside the Immigration Judge's decision. We understand that the respondent has received further representations from the appellant’s husband which will be determined in line with her appeal, but may give rise to a separate right of appeal for him, but that is a matter of which the present Tribunal is not seised.
Introduction
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The disputed part of the appellant's account concerned her claim to have a former partner, a husband by customary marriage, in her home province of Hunan in China, and to have left two children by that relationship with her parents-in-law, when she fled to the United Kingdom in 2002. Her former partner was also said to be ethnically Han. We do not accept that part of her account as credible, for the reasons set out...
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