A v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,SIR MURRAY STUART SMITH |
| Judgment Date | 18 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1171 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2002 |
| Docket Number | C/02/0290 |
[2002] EWCA Civ 1171
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Sedley
Sir Murray Stuart Smith
C/02/0290
MISS R. BARUAH (instructed by Messrs Gerston & Nixon, London, W1) appeared on behalf of the Applicant.
MR. M. FORDHAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
( )
The present applicant, represented by Miss Baruah, is a Chinese national and an adherent and practitioner of the cult of Falun Gong. She claims that if she is returned to China she faces a real risk of persecution because of her beliefs and practices. While, as will appear, I do not think this is a proper case for the grant of permission to appeal, out of respect for the fears that she entertains she has been anonymised for the purposes of these proceedings. That seems to me to be a direction that ought to remain in place.
The Secretary of State, the immigration adjudicator and the Immigration Appeal Tribunal have all rejected the applicant's claim. All of them, moreover, have done so on the footing that, without deciding whether Falun Gong is a religion or whether it is a real or imputed political opinion, or possibly whether its adherents constitute a particular social group, the evidence in the view of all three of the decision-makers demonstrated that she could continue to practise Falun Gong in private, as she had done before leaving China, in relative safety.
Miss Baruah seeks permission to appeal on the ground that the Immigration Appeal Tribunal's decision impermissibly limits the applicant's safe practice of Falun Gong to practise not only in private but in isolation. When I considered this application on the papers I refused permission, taking the view that whether the risk fell to be assessed as a risk of persecution under the 1951 Refugee Convention, or as a risk of violation of the applicant's rights under Articles 3 or 8 or 9 of the European Convention on Human Rights, there was a tenable series of fact findings to the effect that no such appreciable risk existed given the continuance in the future, as in the past, of the private rather than the public practice by the applicant of Falun Gong.
When Miss Baruah renewed the application before Ward LJ and me in open court, it seemed to us, having heard her, that there might be a viable argument that the Immigration Appeal Tribunal had too narrowly restricted the situation in which the applicant could expect to be relatively safe from the authorities in China, either because they expected her to practise not merely in private but in isolation, or because to expect any artificial constriction of a freely chosen activity may, on authority, be an impermissible course for a decision-maker in this country. We adjourned the application for restoration before this court on notice to the Secretary of State, because it seemed to us that if there were a viable appeal, it was an appeal that needed to address the underlying question whether Falun Gong is a religion at all or, if not, whether it is a real or imputed political view, or whether its adherents constituted a particular social group, since if it is none of these things espousal of it cannot fall within the Refugee Convention. That would not determine all issues, since human rights issues might remain.
However, appearing at the court's invitation for the Secretary of State today, Mr. Fordham, in a helpful written submission, has somewhat discouragingly made common cause with Miss Baruah in seeking to deflect us from going into the underlying questions. Both sides, it seems, would prefer for the time being to consider the risk of persecution without engaging upon the riskier course of seeking a finding that might turn out to be unwelcome as to what the true nature and status of Falun Gong is.
As a fallback, however, Mr. Fordham has shown us the remarkably detailed Home Office CIPU report on Falun Gong and has annexed to his skeleton argument an interesting analysis of the possible status of the cult, including support from the Canadian courts for the view that it comes closest to it being a particular social group. Mr. Fordham suggests that, if the cult is to rank within the Refugee Convention, it may be as an imputed political opinion that it comes closest to doing so. In any event, having led the horses to water we are not going to be able to make them drink. This application must be approached by us on the footing that, if the other Convention criteria are met, then Falun Gong is capable of ranking within the Refugee Convention and/or within the European Convention on Human Rights.
What is left therefore is the short question whether the Immigration Appeal Tribunal have arguably gone wrong in either of the ways which I have indicated or, as is also said in her written submissions by Miss Baruah, whether the Immigration Appeal Tribunal have assumed that an absence of past persecution can itself determine the ambit of any risk of future persecution.
The adjudicator, Mr. Curzon Lewis, in a fully reasoned decision issued on 13th July 2001, said, among other things, the following:
"73. … I find as a fact that this appellant is a Falun Gong practitioner.
74. However, the scale of her allegiance was quite modest. One...
To continue reading
Request your trial
-
Re T &N Ltd
...This does not diminish its importance, as it is fundamental to the values which the Convention is intended to protect: A and X v Secretary of State for the Home Department [2004] QB 335 per Lord Woolf LCJ at para 8. The application of article 14 does not necessarily require the violation of......
-
A v Secretary of State for the Home Department (No. 2)
...now before the House are a later stage of the proceedings in which the House gave judgment in December 2004: A and others v Secretary of State for the Home Department, X and another v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68. In their opinions given then, ......
-
R (Elias) v Secretary of State for Defence
...In these cases, the role of the court may be very limited. This may be seen from the speech of Lord Bingham said in A v Secretary of State for the Home Department [2005] 2 AC 68 at [29]: "… I would accept that great weight should be given to the judgment of the Home Secretary, his colleague......
- R (Bagdanavicius) v Secretary of State for the Home Department