ZC & Others (Risk - illegal exit – loan sharks)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge |
| Judgment Date | 27 February 2009 |
| Neutral Citation | [2009] UKAIT 28 |
| Court | Asylum and Immigration Tribunal |
| Date | 27 February 2009 |
[2009] UKAIT 28
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Kekic
For the Appellant: Mr B Bedford, Counsel instructed by Sultan Lloyd Solicitors
For the Respondent: Mr N Smart, Home Office Presenting Officer
ZC & Others (Risk — illegal exit — loan sharks) China CG
(1) Individuals returning to China after having made unsuccessful claims for asylum are not reasonably likely to be imprisoned or subjected to administrative detention for having left China unlawfully; LJ (China – Prison Conditions) China [2005] UKIAT 00099 upheld. Those able to provide the authorities with information on loan sharks or snake heads are even less likely to be at risk of prosecution.
(2) The evidence does not establish that failed asylum seekers indebted to loan sharks will come to harm on return to China; the information on loan sharks in HL (Risk – Return – Snakeheads) China CG [2002] UKIAT 03683 is still applicable.
This is the reconsideration of the appeals of the appellants, a family unit of mother and twin children born on 11 August 1968 and 9 October 1991 respectively. All are citizens of China.
The appellants claim to have left China via Beijing airport for Holland in March 2008. They then arrived illegally in the UK on an unspecified date in April. They claimed asylum on 27 June 2008. Their applications were refused on 17 July 2008 and a decision to remove them from the UK was made on the same date.
The appellants gave notice of appeal under s. 82(1) of the Nationality, Immigration and Asylum Act 2002 on 4 August 2008.
The appeals came before Immigration Judge Pacey at Birmingham on 19 September 2008. She heard oral evidence from the first appellant and in a determination promulgated on 29 September allowed the appeals. The Immigration Judge found that the appellants were members of a particular social group, that they would be at risk from loan sharks in their home area due to gambling debts incurred by the first appellant's husband, that they could internally relocate but that because the background material indicated that illegal exit was punishable by imprisonment, “this might happen to the first appellant” and the appeals therefore had to succeed on asylum grounds.
Reconsideration was sought by the respondent and ordered by Senior Immigration Judge Chalkley on 8 October 2008.
On 9 January 2009 Senior Immigration Judge Ward heard the first stage of the reconsideration. She found that the panel had made a material error of law and adjourned for a second stage reconsideration. Her reasons for so finding are set out below:
REASONS FOR THE DECISION THAT THERE IS A MATERIAL ERROR OF LAW IN THE DETERMINATION
1. The Appellant and her two dependent children sought asylum in the United Kingdom by an application dated 27 June 2008. The Respondent refused the application on the basis that there was a sufficiency of protection for the Appellants from the loan sharks they feared on return to China. The Appellants appealed to the Tribunal and by a determination dated 27 September 2008, Immigration Judge Pacey allowed their appeals. The Respondent sought a reconsideration order which was granted by a senior immigration judge on 8 October 2008.
2. Representation
At the hearing before me the Appellants were represented by Mr Pipe of Counsel and the Respondent was represented by Miss Karunatilake, Home Office Presenting Officer.
3. Submissions .
Miss Karunatilake relied on all her grounds in the application for reconsideration. I summarise them briefly as follows. The immigration judge had found in the course of his determination that the Appellants could relocate internally in order to be free from risk of harm at the hands of the loan sharks. Notwithstanding this clear finding of internal relocation, the judge went on to allow the appeal. This was an error. The judge had then gone on apparently to allow the appeal on the basis that, as an illegal emigrant, the Appellant would be at risk of receiving a sentence of about three months and therefore the appeal should be allowed. However the judge had failed entirely to consider whether the short period involved would amount to persecution for a Convention reason. There was no consideration of whether this would give rise to treatment which would cross the threshold required for Article 3 of the Human Rights Convention either. The grounds also submitted that the immigration judge had failed to have regard to the principles established by the Tribunal in the case of LJ China but this was not an issue which Miss Karuntilake actively pursued during her submissions.
4. Mr Pipe, on behalf of the Appellants, referred to his Rule 30 Reply. There was no challenge to the immigration judge's credibility findings. The findings were that the Appellant came within the definition of a particular social group, was at risk and there was an absence of sufficient protection. The only challenge in the grounds for reconsideration was in regard to the question of internal relocation. The immigration judge had made a sustainable finding that, because of the likelihood of the Appellant being imprisoned for illegal emigration upon return, relocation would not in the circumstances be a reasonable option. The immigration judge had referred to the most recent objective evidence before her. The immigration judge did not find that such imprisonment would in itself constitute persecutory treatment but that it rendered relocation unreasonable. Looking at the heading under which this matter was considered in the determination, it was clearly part of her consideration on internal relocation.
5. At the end of the submissions I reserved my decision which I now give together with my reasons.
6. Material error of law
I am satisfied that a material error of law has been demonstrated with regard to the determination of the immigration judge. While it is clear from the determination that the immigration judge accepted the account of the First Appellant and found her to be credible, she also found in paragraph 41 that there would not be a sufficiency of protection in her home area. The immigration judge then went on, in paragraph 42, to look at the question of internal relocation. She had considerable reservations regarding the credibility of the reasons given by the First Appellant for not being able to relocate elsewhere in China. She set out those reasons in paragraphs 42 to 46. She clearly concluded that the evidence pointed to the First Appellant being able to relocate to another part of the country. However she then went on in the final paragraph of the determination, paragraph 47 to state as follows:
“however, I note and accept, again from the objective evidence, namely the COI… that illegal emigration is subject to a sentence of up to one year in prison, with first offenders probably receiving a sentence of about three months. It is reasonable to suppose, therefore, that, on the balance of probabilities, this might happen to the first appellant. Since the appeals of the second and third appellant stand or fall with that of the first appellant, their appeals must be allowed on this basis”
7. While the submission made by Mr Pipe may be correct — namely that paragraph 47 contained the reasoning of the judge as to why internal relocation was not possible, (as opposed to being a conclusion that the risk of imprisonment as an illegal emigrant was considered by the judge to be treatment amounting to persecution for the purposes of the Refugee Convention) nevertheless there is an absence of reasoning to indicate how the judge concluded that the internal relocation, which she had accepted was reasonably available in the preceding paragraphs, would nevertheless not be a reasonable option on account of the risk of a three-month prison sentence on return. There was no consideration by the judge at all of whether there was a real risk that the Appellant would be imprisoned; nor was there any consideration by the judge as to whether that course of events, were there to be a real risk that it would befall the Appellant, would render internal relocation unreasonable for this Appellant.
8. The Tribunal must be slow to overturn a decision in favour of an Appellant without good reason. Furthermore, it is important to remember the guidance given by the Court of Appeal in R (Iran) [2005] EWCA Civ 982 . Although given prior to the commencement of the current reconsideration procedure, it is nevertheless instructive. Adjusting the terminology to meet the current Tribunal structure and reconsideration process, the following principles are relevant. The Tribunal must be satisfied that the correction of an error would have made a material difference to the outcome or fairness of the proceedings. Furthermore, a decision should not be set aside for inadequacy of reasons unless the judge failed to identify and record the matters that were critical to his decision on material issues in such a way that the Tribunal, on a reconsideration, is unable to understand why he reached that decision. However, with this in mind, I am satisfied that the judge has not properly considered the matter of internal relocation and there is an absence of reasoning to show how she arrived at her decision to reject internal relocation and allow the appeal.
9. I therefore set aside the decision of the immigration judge .
10. Further conduct of this appeal
The next matter for consideration is whether this appeal that should be sent back to the original hearing centre for a second stage reconsideration. Miss Karunatilake submitted that there was no need for there to be any fresh evidence or fresh findings of fact, and, therefore, it was not appropriate to send the matter back for a...
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