YZ (China v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay |
| Judgment Date | 23 May 2013 |
| Neutral Citation | [2013] EWCA Civ 872 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case no: C5/2012/3002 |
| Date | 23 May 2013 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: DA/00932/2010]
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Maurice Kay
Case no: C5/2012/3002
Ms D Qureshi (instructed by Stuart Karatas) appeared on behalf of the Applicant.
The Respondent did not appear and was not represented.
This is a renewed application for permission to appeal, permission having been refused on the papers by Sir Richard Buxton. The case was first listed before me a month or so ago when Ms Qureshi, who had only just been instructed, made it clear that her approach to the proposed appeal was rather different from the approach adopted by her predecessor. On that occasion I adjourned the application to give her the opportunity to put the proposed grounds of appeal on paper with a new skeleton argument, and that she has now done. She has appeared again this morning to support the proposed appeal and she has made robust submissions.
The applicant has been in this country for over 12 years, having had a succession of grants of leave to enter and to remain, in the course of which he married a fellow Chinese national in 2007. However, his difficulties began when, in July 2010, he was convicted and sentenced in the Crown Court for possession of drugs with intent to supply. The sentence was one of 12 months' imprisonment, and that brought him within the automatic deportation provisions subject to any argument that he might have by reference to the Refugee Convention or the ECHR. He put forward submissions under both those headings. They were rejected by the Secretary of State.
The matter then progressed through the Tribunal system. I need only refer to the final determination there, that of Upper Tribunal Judge Pinkerton, whose decision was promulgated on 11 October 2012. He dismissed the applicant's appeal.
In order to mount an appeal to this court the applicant needs to satisfy the second appeals test. In her grounds and skeleton argument, Ms Qureshi puts forward a number of points. It seems to me that the ones upon which she concentrates, and indeed has concentrated this morning, come under five headings. The first is by way of a general complaint that the Upper Tribunal did not accept the reports of Professor Mario Aguilar, an expert who had reported on the instruction of the applicant's solicitors. Professor Aguilar did not give live evidence. His two reports were before the Upper Tribunal. That did not require the Upper Tribunal to accept them.
In casting down upon them, the Upper Tribunal stated at paragraph 42:
"I note from Professor Aguilar's profile that he has wide experience but I agree with the submission of Mr Kandola that he is not so much of an expert in this field. He has followed the history of religion and contemporary political and legal developments in The People's Republic of China with an ongoing research project on religion and politics in Tibet … He has also completed a PhD in Social Anthropology at the School of Oriental and African Studies in 1994, and although he has written expert reports for the 'British courts' since 1994 on cases relating to citizens of various countries including China, some of his conclusions, I find, are unsourced and unsupported. While according him every respect I give less weight to the reports as a result."
Ms Qureshi complains that it only became apparent the Secretary of State was taking issue with Professor Aguilar in the course of the hearing when Mr Kandola made his submissions. Nevertheless, it cannot be right that the applicant was entitled to assume that his expert witness would be automatically accepted. It was for the Upper Tribunal to assess his reports. The Upper Tribunal Judge gave reasons for not accepting the report in full in the passage to which I have just referred. That, it seems to me, was well within the range of the Upper Tribunal's task. Indeed, if we take one example, what I shall call in a few moments the double jeopardy point, the Upper Tribunal was quite entitled to base itself on an existing and fairly recent country guidance case, rather than accepting the evidence of Professor Aguilar on that issue.
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