Upper Tribunal (Immigration and asylum chamber), 2007-02-09, [2007] UKAIT 21 (SP and Others (Tibetan, Nepalese departure, illegal, risk))
| Jurisdiction | UK Non-devolved |
| Judge | Dr HH Storey, Mr A L McGeachy, Mr D C Walker |
| Status | Reported |
| Date | 09 February 2007 |
| Published date | 23 January 2008 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 18 August 2007 |
| Subject Matter | Tibetan, Nepalese departure, illegal, risk |
| Appeal Number | [2007] UKAIT 21 |
SP and Others (Tibetan – Nepalese departure – illegal – risk) People's Republic of China CG [2007] UKAiT 00021
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 18th August 2006 |
On 09th February 2007 |
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Before
SENIOR IMMIGRATION JUDGE STOREY
SENIOR IMMIGRATION JUDGE McGEACHY
MR D C WALKER
Between
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr M Mullins of Counsel instructed by Messrs Gillman-Smith Lee Solicitors
For the Respondent: Mr A Payne of Counsel instructed by the Treasury Solicitors
This determination varied so as to remove paragraph 119(g) in accordance with Consent Order in the Court of Appeal, 5 October 2007.
Removal to People's Republic of China of Tibetans who left China illegally on the Tibet/Nepal route would give rise to a real risk of persecution, serious harm and treatment contrary to Article 3 of the ECHR.
DETERMINATION AND REASONS
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The appellants, to whom we shall refer as SP, WD and TL are nationals of the People's Republic of China. They were all born in the Tibet region, and are of Tibetans ethnicity.
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Although much of the objective material still refers to that area as ‘Tibet’ it is more correctly described as the Tibet region of the People's Republic of China (hereafter Tibet region). Those born in the Tibet region and of Tibetan ethnicity are referred to in this determination as ‘Tibetans’. The People's Republic of China is the relevant state: we have referred to it hereafter as ‘China’.
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The Tibet region is a located in western China, formerly an independent state. It was occupied in October 1950 by Chinese Communist forces. It consists of three areas known collectively in the Tibetan as “Cholka-Sum”. These are formed of three distinct geographic and cultural regions - U-Tsang (home of the capital Lhasa in central Tibet and roughly contiguous with the Tibetan Autonomous Region - TAR), a region which despite its name is no safer than the rest of Tibet region, and perhaps less safe because of heightened intelligence interest in that particular area. To the East, there are Amdo and Kham, bordering the Chinese regions of Ganzou and Sichuan respectively.
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All the appellants claim to have left China illegally on the Tibet/Nepal route and that this is the risk factor for them if returned, since they will be perceived as supporters of the Dalai Lama, the Tibetan spiritual leader (who lives in exile in India) and/or as ‘splittists’, that is, Tibetan separatists who seek to restore Tibetan independence.
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All the appellants appealed against decisions of the Secretary of State to refuse to grant asylum and to issue directions for their removal to China. They are aged 24, 29 and 32 respectively. The appeals of SP and TL were dismissed and that of WD was allowed. Their appeals come to us as second stage reconsiderations, errors of law having been found in the determinations of the Immigration Judges who heard their appeals.
The Issues
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Although the facts of their individual claims are different, these appeals were joined together to be heard as country guidance cases focussed on the issues of whether or not Tibetans, merely by having left the China and having spent some time in the West, would face persecution, on the basis of their imputed political opinion, when returned to China. As there are no direct routes of return to Tibet region, it was accepted that they would be returned to the airports of Beijing or Shanghai and therefore we have considered the treatment which they would receive on return at the airport as well as the issue of whether or not they would face persecution in China.
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On the basis that the appellants might face persecution in China but not at the airport we heard argument on whether internal relocation within China would be open to them, with particular reference to whether or not they could join the “floating” population there. China has a large ‘floating population’ (100-150 million economic migrants without official residence status in cities, according to the respondent’s latest OGN). Many of these, like the appellants, are uneducated and often move to the cities from rural areas. The ‘floating population’ would not necessary speak a Chinese national language; there are seven major dialects and many sub-dialects within the People's Republic of China.
SP’s claim
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SP is the son of a Tibetan monk, whose monastery in Lhasa was bombed and who then moved to Phuntsoling. SP‘s father was arrested, detained, and tortured in 1997 before being released in February 1998; the treatment which he received caused him to be paralysed and he died six months later.
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SP’s claim was that between March 1999 and March 2002 he had put up posters in the streets and on a bridge in Phuntsoling. On 9 March 2002 he had been arrested, questioned and tortured for a number of hours before being detained for five days. Thereafter he was detained in prison, for six months, before being released unconditionally. He had not been charged with any offence.
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In 2004 SP, along with a number of Tibetans and Western tourists who had gathered for the blessing of Zhe Tratant Rinpoche, saw two Buddhist nuns being assaulted by the Chinese police. He claimed that the Western tourists had taken photographs of the incident. A protest had followed by all of the people present. The police had taken photographs of that demonstration. SP believed that he would be arrested. He did not know whether or not his photograph had been taken but, in any event, went to hide in a friend’s house. Two days later he heard that the police were looking for him and he decided to flee China.
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In September 2004 SP left China on the Tibet/Nepal route, unlawfully, and from there made his way to Britain, arriving on 2 November 2004. He claimed asylum on 9 November 2004. The decision to refuse to grant asylum was made on 5 January 2005 and two days later he was served with a decision refusing him leave to enter the United Kingdom. Removal directions were set for China.
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The Immigration Judge accepted that SP’s father had been tortured in 1997 and had died the following year. He did not accept that the appellant had been detained in 2002 or that he had thereafter been of interest to the authorities. With regard to the incident in August 2004 he stated that “allowing the appellant the benefit of the doubt, it is possible and credible that he feared arrest, detention and possible torture”. However, he did not accept that SP’s fear was well-founded, saying that SP could have no way of knowing that the police had taken his photograph or been aware of his participation, if any, in the demonstration to “a degree sufficient to allow them to identify him”. He did not accept that the police had looked for the appellant as he had claimed. He therefore found that the core of the appellant’s account of persecution was not credible and dismissed the appeal on both asylum and human rights grounds.
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Reconsideration was ordered on 16 May 2005 on the basis that the Immigration Judge might have erred in law by giving insufficient consideration to the country material before him. The first reconsideration hearing took place on 13 October 2005. An error of law was found. Senior Immigration Judge Jordan stating that:-
“We consider the Adjudicator made a material error of law. The parties agreed that the Adjudicator made a material error of law. In paragraph 50 of his determination, the Adjudicator considered the risk on return but confined his consideration to whether the criminal punishments were unjust or disproportionate. We are satisfied that Mr Braid’s submissions on the risk on return faced by Tibetans were much more far-ranging as appeared from his skeleton argument prepared for the Adjudicator. The Adjudicator did not deal with these issues.”
WD’s claim
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WD was a farmer and construction worker, who was educated by an uncle who was a monk and never went to school. His family had never been involved in any political activities but were Buddhists and regarded the Dalai Lama as their spiritual leader.
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On 4 November 2004, WD and two of his friends, decided to celebrate the Tibetan Buddhist festival, Lhabab Duechen. They held a prayer session in their house. Four neighbours were invited. The appellant and his two friends set up an altar in his friend’s house and put a picture of the Dalai...
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