Upper Tribunal (Immigration and asylum chamber), 2017-03-08, AA/02746/2015
| Jurisdiction | UK Non-devolved |
| Date | 08 March 2017 |
| Published date | 26 January 2022 |
| Hearing Date | 17 February 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/02746/2015 |
Appeal Number: AA/02746/2015
IAC-AH-sc-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02746/2015
THE IMMIGRATION ACTS
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Heard at Manchester |
Decision & Reasons Promulgated |
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On 17 February 2017 |
On 8 March 2017 |
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Before
UPPER TRIBUNAL JUDGE CLIVE LANE
Between
Tong Fen CHEN
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss Khan, instructed by Fadiga & Co, Solicitors
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant, Tong Fen Chen, was born on 27 August 1982 and is a female citizen of the People’s Republic of China. By a decision promulgated on 11 March 2016, I found that the First-tier Tribunal had erred in law such that the decision fell to be set aside. My reasons for reaching that decision were as follows:
1. The appellant, Tong Fen Chen, was born on 27 August 1982 and is a female citizen of The People’s Republic of China. The appellant appealed to the First-tier Tribunal (Judge Herwald) against a decision of the respondent dated 2 February 2015 to refuse the appellant’s asylum claim and to make directions for her removal from the United Kingdom. The First-tier Tribunal dismissed the appellant’s appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. I find that, of the three grounds of appeal, the first two grounds are entirely without merit. The first ground asserts the judge rejected evidence that the appellant had been involved in separatist activities and had not found that the appellant had set up any prayer association in her own home. The ground refers to background evidence indicating that being associated with separatism as opposed to involved in it was sufficient to attract the interest of the Chinese government. Secondly, it is asserted that the appellant had never claimed that she had set up a prayer association in her own home; she claimed that a Tibetan monk had set up a prayer association in her home. As regards the latter point, I cannot see that the judge’s findings of fact are disturbed by this detail given that the judge has dealt with the appellant’s connection with Tibetan monks and the appellant claimed to have been arrested. As regards the first point, the judge analysed all the evidence in a holistic manner and concluded that the appellant was not a credible witness [16(g)]. The judge also found [16(a)] that the appellant had no interest in any form of politics including the politics of Tibetan separatism.
3. The second ground of appeal is also without merit. The appellant asserts that the judge “focused on negative aspects” of her claim. I am satisfied the judge considered all the evidence holistically and reached findings of fact which were plainly available to him. The ground of appeal amounts to nothing more than a disagreement with the judge’s findings of fact.
4. Miss Khan, for the appellant, concentrated almost entirely at the appeal hearing before the Upper Tribunal on the third ground of appeal. This concerns the expert report which the appellant had obtained from Dr Tran. The judge dealt with this at [12]:
In her submissions, the appellant’s representative told me that ‘the private life and Article 8 claims are quite minimal. She has not been in the UK long enough. This is basically an asylum claim.’ I find that Miss Chawdhery is right to make these submissions and, in addition, she told me that the expert report had completely failed to take into account the country guidance of AX (Family Planning Scheme) China CG [2012] UKUT 97. More of that later, but she told me that I was bound by that country guidance case unless there was something in the rest of the background information or in this expert report to suggest otherwise and she made clear that there was not. I concur with her submission in this respect and must follow the country guidance case.
5. The judge referred to AX at [15(e)] but did not refer to it again in the decision nor did he refer to the expert report.
6. I have before me a statement prepared by Miss Chawdhery of Counsel who appeared before the First-tier Tribunal. The statement is dated 20 October 2015. Counsel has helpfully set out her recollection of her exchanges with the judge at the hearing. Miss Chawdhery states that, during her submissions, she drew attention to the fact that the expert had dealt with an aspect of the appellant’s case which did not fall within the parameters of AX, namely that her children had been born out of wedlock. The statement also refers to exchanges with the judge during which the judge had commented that there was “very little evidence of parents being penalised if they returned to China with foreign born children and because the appellant’s children were born in the UK, her children were likely to be viewed as foreign born children.” Counsel confirmed that she was not asking the judge to depart from the country guidance case of AX but it is clear from her statement that she did seek to rely upon the additional point regarding the children having not been born in marriage. Other than the judge’s comment regarding “foreign born children” (not referred to in the written decision itself) it is unclear exactly what view he took of the submission regarding children born outside marriage. I note that the judge was asked to comment on the Ms Chawdhery’s statement but no response has been forthcoming.
7. Mr McVeety, for the respondent, urged me to leave the decision undisturbed. He submitted there was nothing in Miss Chawdhery’s statement which would indicate that the judge would have come to a different result. It is unfortunate that the judge did not refer in greater detail in his decision to his exchanges with Miss Chawdhery regarding the expert report and the country guidance case. I am satisfied that the contents of Miss Chawdhery’s statement represent a true and accurate account of those exchanges. Though the matter is finely balanced, I find that the judge did fall into error by not dealing with the expert report at greater length if only to give reasons for rejecting its contents, including what was said regarding children born outside marriage. Given that I have rejected grounds 1 and 2, I see no reason at all to interfere with the judge’s findings of credibility and fact which are set out at [16]. Subject to those findings being preserved, the decision is set aside. I shall re-make the decision following a resumed hearing in the Upper Tribunal on a date to be fixed in Manchester.
Notice of Decision
The decision of the First-tier Tribunal which was promulgated on 5 May 2015 is set aside. The findings of fact at [16] are preserved. The decision will be re-made in the Upper Tribunal by Upper Tribunal Judge Clive Lane at Manchester on a date to be fixed and following a resumed hearing.
No anonymity direction is made.
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At the resumed hearing in Manchester on 17 February 2017, I heard evidence from the appellant who spoke in Mandarin with the assistance of an interpreter. The burden of proof in the appeal is on the appellant and the standard of proof is whether there is a reasonable likelihood that the appellant would face a real risk of persecution or ill-treatment should she return to China.
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The appellant said she had last contacted her family in China in February 2016. She had spoken to her aunt (Li Xian Chen). She said that her aunt had subsequently moved house and she had lost her contact number. She had no contact with her sister. The appellant said that any children she had would be unable to register or go to school or access healthcare in China. She told me that her partner, the father of the children, was at court looking after the children in the reception area. The appellant said that her partner had no legal status in the United Kingdom and he is a citizen of China. She claimed that he would be persecuted if he returned to China although, when asked whether he had claimed asylum, she at first gave confused answers before concluding that she thought “he had been refused.” The appellant said she intended to marry her partner but did not have the necessary documents to do so.
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I was not impressed by the appellant as a witness. I believe that she was well-aware that her partner’s claim for asylum had been refused by the Secretary of State and that she deliberately sought to keep this information from the Tribunal before she was eventually persuaded to divulge it.
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Mr McVeety’s attack on the evidence of the appellant focused on the report upon which the appellant relies prepared by Dr Tran. There are, in fact, two reports, the addendum report apparently written after China had altered its “one-child” policy. Mr McVeety submitted that, although the addendum report refers to the change in the policy, all the evidence upon which the expert purports to rely in her report dates from before the change in the law. That is, in my opinion, a sound submission and it leads me to diminish the weight which should be attached to Dr Tran’s report.
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There are other problems with Dr Tran’s report. Many of the assertions which she makes in the report are in the nature of...
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