Upper Tribunal (Immigration and asylum chamber), 2021-10-19, HU/09733/2019
| Jurisdiction | UK Non-devolved |
| Date | 19 October 2021 |
| Published date | 03 November 2021 |
| Hearing Date | 31 August 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/09733/2019 |
Appeal Number: HU/09733/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09733/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 31 August 2021 |
On 19 October 2021 |
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Before
UPPER TRIBUNAL JUDGE CANAVAN
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
xx
(anonymity directioN MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant or members of her family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Representation:
For the appellant: Mr F Farhat, In-house Counsel from Gulbenkian Andonian Solicitors
For the respondent: Ms S Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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This is the re-making decision in the appellant’s appeal against the respondent’s refusal of her human rights claim. This follows the decision of Upper Tribunal Judge Kekic, promulgated on 17 July 2020, by which she found that the First-tier Tribunal had materially erred in law when allowing the appellant’s appeal. Her decision was made without a hearing, pursuant to rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Following the judgment of Fordham J in JCWI v The President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin), neither party raised any objections to the method of disposal adopted by Judge Kekic.
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As we have now reached the re-making stage in proceedings, we shall once again refer to XX as “the appellant” and to the Secretary of State as “the respondent”, notwithstanding that it was the latter which brought the challenge in the Upper Tribunal.
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The appellant is a citizen of China, born in 1985. She arrived in the United Kingdom in 2007 as a student and has resided in this country ever since. That period of residence was lawful until 23 February 2016, when a previous appeal was finally determined against her. Further applications for leave were made, the latest of these being in May 2018. It raised human rights grounds only, specifically relating to Article 8 ECHR (“Article 8”) and her relatively lengthy time here. The respondent refused that human rights claim on 17 May 2019. It is the appeal against that refusal with which we are presently concerned.
The decision of the First-tier Tribunal
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The appeal to the First-tier Tribunal was dismissed by First-tier Tribunal Judge Gibbs (“the judge”). In a brief decision, the judge summarised the appellant’s case as being based on the latter’s undisputed conversion from Buddhism to Christianity, specifically within the Emmanuel Chinese Church.
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The judge’s core findings are set out at [10]:
“… The appellant’s evidence is that she attends her church every Sunday and also attends a Bible study group. She would want to continue these activities in China, although she would not know where to go as she has never lived in China as a Christian. Further, the appellant finds it important to be able to talk to people about her faith. She described, very credibly I find, that if she was living in China she would want to share her newly found faith with her friends, and she could imagine being at a party and talking to people about Christianity. She also gave evidence that she has, in the UK, proselytised in the streets on two occasions and that she would want to be able to do this in China. The appellant currently posts religions (sic) messages on her Instagram page and would want this freedom in China.”
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The judge went on to consider an expert report and country information contained in a CPIN from March 2016. Having regard to these materials, the judge concluded that the appellant had satisfied paragraph 276ADE(1)(vi) of the Immigration Rules (“paragraph 276ADE(1)(vi)”). Accordingly, she allowed the appeal on Article 8 grounds alone. Nothing was said about Article 3 ECHR (“Article 3”).
The error of law decision
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The respondent sought and was granted permission to appeal on the basis that the judge had arguably failed to consider a relevant country guidance decision, namely QH (Christians - risk) China CG [2014] UKUT 00086 (IAC) (“QH”).
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Judge Kekic concluded that the judge below had failed to apply the relevant country guidance. This amounted to an error of law. She found that the guidance was relevant to the consideration of whether the appellant would face “very significant obstacles to integration” were she to return to China. Thus, the error of law was material and the judge’s decision had to be set aside. In so doing, Judge Kekic specifically preserved the findings made at [10] of the judge’s decision, quoted above.
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Case management directions were issued over the course of time in preparation for a resumed hearing.
The hearing
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At the hearing before us, Mr Farhat appeared remotely, whilst Ms Cunha attended in person. This arrangement did not give rise to any objections by the parties. We were satisfied that this was a fair method of proceeding.
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Mr Farhat confirmed that the appellant would not be called to give oral evidence. The hearing proceeded by way of submissions only.
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We were assisted by concise oral submissions from both representatives, which supplemented their respective written arguments.
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Rather than recite the submissions here, we intend to deal with relevant aspects thereof when setting out our conclusions, below. We note here, however, that the appellant’s case has been put forward in reliance on Articles 3 and 8 (with particular emphasis on paragraph 276ADE(1)(vi)), but not Article 9 ECHR. In addition, Mr Farhat urged us to depart from the guidance set out in QH, a position opposed by Ms Cunha.
The evidence
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In re-making the decision in this appeal, we have had regard to all of the materials placed before us, including the respondent’s original appeal bundle and the appellant’s bundle, indexed and paginated 1-259. In addition, and having confirmed our intention with the representatives, we have taken account of the respondent’s current CPIN on Christians in China, version 3.0, dated November 2019.
The relevant legal framework
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As mentioned earlier in our decision, the appellant’s appeal lies against the refusal of her human rights claim: section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, as amended (“the 2002 Act”). No protection claim was ever made or, therefore, refused. This has the effect of restricting the appellant’s ground of appeal to the sole contention that the respondent’s decision is unlawful under section 6 of the Human Rights Act 1998: section 84(2) of the 2002 Act.
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The appellant’s case is, and has always been, protection-related, albeit in the context of a human rights claim and the refusal thereof. Historically, in scenarios such as this, the respondent had often invited individuals to make a protection claim. Indeed, it was not uncommon for the respondent to decline to consider protection-related issues where no protection claim had been made.
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The recent decision of the Upper Tribunal in JA (human rights claim: serious harm) Nigeria [2021] UKUT 97 (IAC) makes it clear that it is permissible to raise protection issues in the context of human rights claim and, if this is done, a tribunal is bound to consider these on appeal. The headnote of JA reads as follows:
“(1) Where a human rights claim is made, in circumstances where the Secretary of State considers the nature of what is being alleged is such that the claim could also constitute a protection claim, it is appropriate for her to draw this to the attention of the person concerned, pointing out they may wish to make a protection claim. Indeed, so much would appear to be required, in the light of the Secretary of State's international obligations regarding refugees and those in need of humanitarian protection.
(2) There is no obligation on such a person to make a protection claim. The person concerned may decide to raise an alleged risk of serious harm, potentially falling within Article 3 of the ECHR, solely for the purpose of making an application for leave to remain in the United Kingdom that is centred on the private life aspects of Article 8, whether by reference to paragraph 276ADE(1)(vi) or outside the immigration rules. If so, the "serious harm" element of the claim falls to be considered in that context.
(3) This is not to say, however, that the failure of a person to make a protection claim, when the possibility of doing so is drawn to their attention by the Secretary of State, will never be relevant to the assessment by her and, on appeal, by the First-tier Tribunal of the "serious harm" element of a purely human rights appeal. Depending on the circumstances, the assessment may well be informed by a person's refusal to subject themselves to the procedures that are inherent in the consideration of a claim to refugee or humanitarian protection status....
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