Xl Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Mulholland |
| Neutral Citation | [2017] CSOH 41 |
| Court | Court of Session |
| Docket Number | P926/16 |
| Published date | 09 March 2017 |
| Date | 09 March 2017 |
| Year | 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 41
P926/16
OPINION OF LORD MULHOLLAND
In the cause
XL
Petitioner
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Pursuer: Winter; Drummond Miller LLP
Defender: Pirie; Office of the Advocate General
9 March 2017
Introduction
[1] This is a Judicial Review of a decision of the respondent dated 29 June 2016 refusing to treat the petitioner’s further submissions as a fresh claim.
Immigration history
[2] The immigration history, which was not disputed by the respondent, is taken from the decision letter which is 6/4 of the inventory of productions (para 5) and the petition. The petitioner is Chinese. She was born on 25 October 1987. She entered the United Kingdom (UK) on 5 May 2010 as a student with a visa valid until 21 January 2013. On 13 November 2011 her first daughter was born. On 12 February 2013 she claimed asylum which was refused on 5 March 2013. Her second daughter was born on 18 March 2013. She appealed against the decision to refuse her asylum claim which was dismissed by the First‑Tier Tribunal on 7 June 2013. She applied to the Upper Tribunal for permission to appeal and this was refused. Her appeal rights became exhausted by 5 August 2013. She made further submissions in terms of paragraph 353 of the Immigration Rules on 1 October 2013 (6/1 of the inventory of productions). Her third daughter was born on 20 November 2015. On 26 February 2016 the respondent served an enforcement notice on the petitioner by post. No fresh evidence was submitted and her further submissions of 1 October 2013 were refused on 7 April 2016, the respondent refusing to treat this as a fresh claim. A pre‑action protocol letter was submitted on 13 May 2016 on the basis that the respondent, in reaching her decision, had not considered the information from Dr Sheehan in her report (6/2 of the inventory of productions). The respondent wrote on 18 May 2016 agreeing to reconsider the decision of 7 April 2016. The decision was reconsidered and on 29 June 2016 the respondent issued the decision letter (6/4 of the inventory of productions) refusing to treat the petitioner’s further submissions as a fresh claim. This decision is the subject of this review. A pre‑action protocol letter was sent to the respondent on 8 September 2016 (6/5 of the inventory of productions). The respondent wrote on 19 September 2016 rejecting the contents of the letter. The respondent’s letter of 19 September 2016 is 6/6 of the inventory of productions. The petitioner does not now seek to reduce the terms of this letter.
The petitioner’s further submissions
[3] The petitioner has three children, all born in the UK and all under 18 years. She fears that she will be at real risk of forced sterilisation if returned to China for having breached the family planning policy. The further submissions are set out in a letter to the respondent from the petitioner’s solicitors dated 1 October 2013. In this letter the petitioner relied on an expert report by Dr Sheehan dated 29 August 2013 (6/2 of the inventory of productions) which was prepared for another, unrelated, claimant who came from Fujian province in China, the home province of the petitioner. The report stated that: (1) unmarried women in China are not eligible to give birth to children; (2) there is firm evidence from family planning authorities in Fujian province that couples who have children born abroad are treated in exactly the same way as couples who have children in China, and thus are subject to the same penalties for unauthorised births, namely, sterilisation; (3) there is evidence that local family planning officials, including Fujianese, actively pursue migrant women who have breached family planning regulations to enforce penalties, including sterilisation; (4) such campaigns occur annually; (5) the subject of the report, who had one unauthorised child, would be the target of the family planning officials and given the fact that the petitioner has had unauthorised children, she would be a target for family planning officials also; and (6) the petitioner would be at serious risk of being forced to undergo sterilisation. The petitioner particularly founds on paragraphs 25, 26, 30 and 32 of the report. As a result the respondent should grant her asylum.
The decision letter
[4] The decision letter is as commonly structured. It extends to twenty pages. Paragraphs 1 – 4 are introductory and paragraph 5 sets out the petitioner’s immigration history. Paragraphs 6 and 7 summarise the basis of the reconsideration of the decision dated 7 April 2016. In relation to Fujian province the petitioner averred that Dr. Sheehan’s report focuses on Fujian province and that the country guidance referred to in AX (Family Planning Scheme) China CG [2012] UKUT 00097 (IAC) is given in very general terms for the whole of China, and Fujian province is not specifically considered. Paragraph 8 summarises Dr Sheehan’s report dated 29 August 2013. In paragraph 10 the respondent confirms that anxious scrutiny has been applied to the report by Dr Sheehan and the respondent is satisfied that Dr Sheehan is a country expert for China. However, in considering the report it is noted that it is almost three years old and was not compiled for the petitioner but for a female who is believed by the petitioner to have similar circumstances. Paragraph 11 refers to and extracts the latest country information on the ‘one child policy’ in China which is taken from the Country of Origin Information Service (COIS) guidance dated July 2015 (which draws on AX, supra). This notes that (1) breach of the Chinese family planning scheme is a civil matter, not a criminal matter; (2) family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child; (3) there are regular national campaigns to bring down the birth rates in provinces and local areas which have exceeded the permitted quota. Over quota birth rates threaten the employment and future careers of birth control officials in those regions, and where there is a national campaign, it can result in large scale, unlawful crackdowns by local officials in a small number of provinces and areas. In such areas, during such large scale crackdowns, human rights abuses can and do occur, resulting in women and, sometimes, men, being forcibly sterilised, and pregnant women having their pregnancies forcibly terminated. The last such crackdown took place in Spring 2010; (4) in general, for female returnees, who have permitted quotas of children, there is no real risk of forcible sterilisation or forcible termination in China. However, if a female returnee who has already had her permitted quota of children is being returned at a time when there is a crackdown in her ‘hukou’ area (hukou is a record in a government system of household registration required by law in mainland China and determines where citizens are allowed to live), accompanied by unlawful practices such as forced abortion or sterilisation, such a returnee would be at real risk of forcible sterilisation, or, if she is pregnant at the time, of forcible termination of an unauthorised pregnancy . Outside these times, such a female returnee may also be able to show an individual risk, notwithstanding the absence of a general risk, where there is credible evidence that she, or members of her family remaining in China, have been threatened with, or have suffered, serious adverse ill-treatment by reason of her breach of the family planning scheme; and (5) internal relocation will, in almost all cases avert the risk in the ‘hukou’ area. However, internal relocation may not be safe where there is credible evidence of individual pursuit of the returnee or her family outside the ‘hukou’ area.
[5] Paragraph 12 refers to the judgment of the First‑tier Tribunal on 7 June 2013. It should be noted that no information from Dr Sheehan was presented to the tribunal in support of the petitioner’s case and the petitioner relied on the Country guidance case, AX, supra, in furtherance of her appeal. It was not suggested, either, that there was more recent country information which would have entitled the Tribunal to depart from AX, supra, or that there were special circumstances relating to the petitioner. An extract from the judgment refusing the petitioner’s appeal is as follows:
“As I have already indicated the Respondent dealt at some length with AX in the decision letter and set out clear reasons why she came to the conclusion that the Appellant would not be at risk on return. In my view Ms Hussain has not produced any evidence or made any submissions which would entitle me to come to a conclusion other than the conclusion reached by the Respondent and for that reason my conclusion is that the Appellant would not be at risk of ill treatment on her return to China as a result of having breached the One Child Policy which at the end of the day is a civil matter in China and not a criminal matter.”
[6] At paragraph 13 it was noted that the petitioner was from Fuqing city, Fujian province and that the woman referenced in Dr Sheehan’s report is from the area of rural Fuzhou in Fujian province. At paragraph 14 the respondent records that the petitioner has failed to provide any fresh evidence that she would be at risk of persecution upon return to China. With regard to the risk of sterilisation, which lies at the heart of the petitioner’s case, paragraph 15 notes that Dr Sheehan’s report relates to a woman whose circumstances were not identical to the petitioners. At paragraph 16 it is noted that there is no real risk of a refusal to register a child and quoting from the Country Report on Human Rights Practices for 2014 it is also noted that in the small number of provinces and areas, during large‑scale crackdowns, human rights abuses can and do occur, resulting in women, and sometimes men, being forcibly...
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