Upper Tribunal (Immigration and asylum chamber), 2022-09-13, LP/00245/2021
| Appeal Number | LP/00245/2021 |
| Hearing Date | 22 July 2022 |
| Published date | 28 September 2022 |
| Date | 13 September 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2021-001588
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001588
(PA/52734/2020); LP/00245/2021
THE IMMIGRATION ACTS
|
Heard at Bradford |
Decision & Reasons Promulgated |
|
On 22 July 2022 |
On 13 September 2022 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
AAZA
(Anonymity direction made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Muquit instructed by Freemans Solicitors.
For the Respondent: Mr Diwnycz, a Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant appeals with permission a decision of First-tier Tribunal Judge O’Hanlon (‘the Judge’) dated 19 July 2021 in which the Judge dismissed the appellant’s appeal on all grounds.
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The appellant is a citizen of Yemen born on 2 May 2000. There is no dispute concerning his identity nor that since the age of one he has lived with his family in China.
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The Secretary of State in the refusal letter dated 26 November 2020 specified the place to which the appellant will be removed as China.
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Having considered the evidence with the required degree of anxious scrutiny the Judge sets out findings and reasons from [29] of the decision under challenge.
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The Judge considers the question of the possibility of return of the appellant to Yemen from [31]; recording that the refusal letter at paragraph 61 accepts that the appellant will be at real risk of serious harm contrary to Article 15 of the Qualification Directive in the event of return to Yemen and accepting, if that were the case, that he will be entitled to a grant of humanitarian protection.
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After reflecting on submissions made concerning Yemen the Judge finds at [37 -38] the following:
37. Having considered all of the evidence before me in the round, I am not satisfied to the requisite standard of proof that the Appellant’s claimed fear of persecution or serious harm in the event of return to Yemen is based upon a reason recognised by the 1951 Refugee Convention as opposed to justified and well-founded fear in the event of return to Yemen as a result of the general situation of indiscriminate violence and internal armed conflict and I therefore do not find that the Appellant satisfies the requirements to a grant of asylum insofar as the question of return to Yemen is concerned
38. In her submissions, the Appellant’s Representative suggested that although the Respondent had purported to grant the Appellant humanitarian protection on the grounds of The Qualification Directive, that protection only applied in the event of return to Yemen and that as the Respondent decided that the Appellant would be returned to China (paragraph 67 of the Refusal letter), in effect the Appellant was being denied humanitarian protection. Whilst I found there is some attraction in this argument, I do in fact you draw a distinction for the purposes of this appeal between the possible return of the Appellant to Yemen where he is a national and China where the Appellant had resided for virtually the whole of his life. I find that it is necessary to consider the issues affecting the Appellant’s possible return to China as separate from the issues relating to the Appellant’s possible return to Yemen.
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The Judge, having examined that position, concluded that the appellant could return to China and dismissed the appeal.
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The appellant sought permission to appeal which was granted by another judge of the First-tier Tribunal on 4 October 2021, the operative part of the grant being in the following terms:
2. The in-time grounds assert that the judge erred in finding that there was an alternative safe country the grounds assert that the judge incorrectly shifted the burden of proof to the appellant in relation to the issue of whether he could go to China. It is also asserted that the finding that the appellant could go to China is irrational because he does not have permanent residency there or a current Visa.
3. The judge’s conclusion that the appellant’s ability or otherwise to obtain a Visa or residency permit was not relevant to her consideration of the asylum or humanitarian protection claim is an arguable error of law. The judge has taken into account guidance given in the cases of GH (Former Kaz, Country Conditions, Effect) Iraq CG [2004] UKIAT 00248 and GH v Secretary of State for the Home Department [2005] EWCA Civ 1182 but these cases both concern appellants returning to their home country.
Error of law
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Paragraph 8 of Schedule 2 of the Immigration Act 1971 permits an illegal entrant to be returned to either:
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the country of which they are a citizen, or
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the country or territory in which they obtained a passport or other identity documents, or
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the country or territory from which they embarked for the UK, or
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a country or territory to which there is reason to believe they will be admitted.
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It is permissible for a removal direction to specify more than one country of destination. In RR (refugee - safe third country) Syria [2010] UKUT 422 (IAC) the Tribunal held that in an asylum appeal in which the claimant has only one country of nationality (country A), it is permissible for the Secretary of State to propose more than one country of destination (country B etc): see also JN (Cameroon) [2009] EWCA Civ 643 at [23].
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Mr Muquit did not challenge the provisions of the 1971 Act or the ability of the respondent to return the appellant to the country or territory from which he embarked to the UK which, on the facts of this appeal is China.
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It was similarly accepted that there is no right of appeal against a removal direction and if and when one is formally issued in this appeal any challenge to that will have to be by way of judicial review.
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Mr Muquit submitted that an issue arose when considering what will be reasonably expected on arrival, that the refusal letter did not give specific details as to how the appellant could be removed China, and that had the Secretary of State has set out the basis of return and the route that could be appealed against by the appellant.
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Mr Muquit submitted the problem in this case was that the authorities in China were unlikely to let the appellant in, as he had no right to enter or the type of visa identified in the pleadings, that there was no assessment of any risk the appellant would face on return to China, and that the Judge’s findings that this was an irrelevant fact is infected by legal error. It was submitted the Judge mis-read the appellant’s argument.
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It was further submitted on the appellant’s behalf that the Judge’s assessment of risk in China is perverse, contrary to the law and evidence, and failed to take into account what the appellant claimed happened to him which it was argued crossed the necessary threshold, such as to amount to persecution. The appellant claims his father was arrested once he had left China but all the evidence of the impact upon the appellant was before the Judge.
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The appellant claims that the actions of the State in China are persecutory and that the Judge could not justify the decision. It was argued the appellant’s mother was not in the meeting attended by his father where it is alleged the issues arose of concern to the authorities in China, but she too had been persecuted indicating a family connection and risk to the appellant on return. Mr Muquit submitted the appellant is a member of a particular social group on this basis.
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It was submitted that the Judge should have properly assess the evidence and that had the Judge done so a different decision would have resulted.
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I do not find the claim the Judge failed to consider the evidence with the required degree of anxious scrutiny made out, as the Judge clearly did.
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In relation to the appellant’s case before the Judge the following is written at [24]:
24. The Appellant’s case, based upon his screening interview, further representations, skeleton argument and oral evidence at the hearing, can conveniently be summarised as follows:-
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The Appellant is a national of Yemen, born 2 May 2000. He was born in Bangkok, Thailand where he lived for a year prior to moving with his family to China where his father ran an import/export business.
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The Appellant’s family do not have settled status in China, his father having to renew his residency every year. Since the Appellant turned the age of 18 he is only able to reside there on a student visa in his own right.
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The Appellant’s family includes his father, mother and two siblings, born in 2003 and 2004 respectively.
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The Appellant received his education in China. He commenced University studies in 2018 at Changsa Human University and in his second year studied at Changsa Central University.
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Although the Appellant has lived in China for the majority of his life, he has not been...
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