Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 72

 

P427/15

OPINION OF LADY WOLFFE

In the petition of

Y H

Petitioner;

for

Judicial Review of a decision dated 29 October 2014 refusing to treat the petitioner’s further submission as a fresh claim

Secretary of State for the Home Department

Respondents:

Petitioner:  Dewar QC;  Winter;  Drummond Miller LLP

Respondents:  Pirie;  Office of the Advocate General

20 May 2016

Introduction

 

[1]        The issue in this case is whether the letter from the petitioner’s agents to the Secretary of State for the Home Department (“the Secretary of State”) dated 16 January 2014 (“the cover letter”), together with its appendices (which, together with the cover letter, are “the further submissions”) constituted a ‘fresh claim’ for asylum for the purpose of rule 353 of the Immigration Rules (“the Rules”). By Letter dated 29 October 2014 (“the refusal letter”) the respondent determined inter alia that the petitioner’s further submissions did not constitute a fresh claim and that, as the petitioner had no basis to stay in the United Kingdom, she should make arrangements to leave without delay.  There is no right of appeal afforded against a decision of the Secretary of State that a submission presented is not a “fresh claim” under rule 353 of the Immigration Rules. Accordingly, the petitioner challenges the refusal letter by this application for judicial review.

 

Background

 

[2]        The petitioner is a Chinese national from Fujian province.  She first entered the UK as a student on 7 August 2008.  The last extension of her application for leave to remain expired on 29 August 2011.  Meantime, the petitioner returned to China in March 2010 and married her current husband. She returned to the UK in April 2010.  She and her husband have two children, both of whom were born in the UK but after the date upon which the petitioner’s leave to remain expired.

[3]        In March 2012 the petitioner encountered immigration officers.  She was deemed to be an overstayer.  She claimed asylum on 7 March 2012 with her husband as a dependant. This was refused. The petitioner’s appeal to the First Tier Tribunal (“the FTT”) was refused by Judge Bradshaw, as were her applications to the FTT and, separately, to the Upper Tribunal (“the UT”) for permission to appeal that refusal. The FTT decision refusing the petitioner’s appeal dated 22 June 2012 (“the FTT decision”) is produced at no. 7/3 of process. The petitioner’s judicial review of the UT’s refusal to grant permission was itself refused (“the first judicial review”).  Lord Boyd’s decision in the first judicial review is produced at no. 6/1 of process.

 

The petitioner’s further submissions giving rise to this judicial review
[4]        The petitioner lodged further submissions with a view to their being accepted as a fresh claim under paragraph 353 of the Immigration Rules.  The petitioner made further submissions on the following grounds:

1. Her well-founded fear of persecution if returned to China due to her political opinion (“ground 1”);
2. Her well-founded fear of persecution if returned to China due to her membership of a particular social group (“ground 2”);
3. The best interest of her children (“ground 3”); and
4. Risk of return as a failed asylum seeker (“ground 4”).

[5]        She produced certain documents in support of her claim. The cover letter from her agents (running to 11 pages) and the additional documentation sent with the cover letter were compendiously lodged at no 6/3 of process (“the petitioner’s further submissions”).  So far as relevant to the grounds of challenge in this petition, the additional documentation relied on as constituting “new evidence” included the following (retaining the numbering and description used in the cover letter):-

(1)        Letter dated the 21^st November 2013 from Hua Huang, Secretary-general of the UK Branch of China Democracy Party (“the UKCDP letter”);

(2)        Receipt dated the 20^th November 2013 from the UK Branch of the China Democracy Party confirming the petitioner’s membership (“‘the UKCDP receipt”);

(3)        Chinese extract from the website of the UK Branch of the CDP – showing members’ comments;

(4)        English translation of extract noted at item 3 above – showing two articles written by the petitioner;

(5)        Chinese extract from the website of the UK Branch of the CDP – relating to an article written by the petitioner titled “Chinese Communist Party’s lies”. (This is the document containing a photo with the name of the petitioner alongside it, as referred to at paragraph 27 of the refusal letter.);

(6)        English translation of extract noted at item 5 above;

(7)        Chinese extract from the website of the UK Branch of the CDP – relating to an article written by the petitioner titled ‘About my views on China’s food safety’;

(8)        English translation of extract noted at item 7 above;

(9)        Letter from the Home Office to the petitioner dated the 12^th January 2014;

(10)      Copy of birth certificated for [child 1]; and 

(11)      Copy of birth certificate for [child 2].

Although not listed as part of the ‘new evidence’ in the further submissions, there was also produced a lengthy document (extending to 43 closely-typed pages) described as a “Country Expert Report” prepared by Dr Sheehan (“Dr Sheehan’s Report”). This was dated 29 August 2013. The version produced was unsigned and, from the redactions marked on it, bore to relate to someone other than the petitioner. (I shall refer to a report of this character as a “third party report”.)  It was not a generic report.  As will be seen, the petitioner advances certain criticism of the way that Dr Sheehan’s report was dealt with in the refusal letter. Separately, an issue arises as to whether it was permissible in certain circumstances to disregard Dr Sheehan’s third party report, and whether, as the respondents contend, those circumstances obtained in this case.

[6]        By letter dated 29 October 2014 the Home Office refused to treat the petitioner’s further submissions as a “fresh claim” (“the refusal letter” is produced at no 6/4 of process). 

[7]        The petitioner challenges that refusal on a number of bases. However, at the start of her submissions at the first hearing, she indicated that she would not be advancing any argument in respect of her claim for asylum based on the best interests of the children and which formed ground 3 of her further submissions to the Secretary of State.

[8]        The Home Office’s refusal to treat her further submissions as a fresh claim for the purposes of rule 353 is challenged on the overarching ground that the Secretary of State failed to apply anxious scrutiny in her consideration of the whole materials presented. The refusal letter was subjected to a number of detailed criticisms to demonstrate a want of anxious scrutiny. However, as senior counsel for the petitioner explained, the gravamen of his attack was on the failure on the part of the Secretary of State “to engage” with Dr Sheehan’s report in the refusal letter.  Before turning to the petitioner’s arguments, it may assist to set out the relevant statutory provisions and the recent case-law concerning the proper approach by the court to fresh claim cases.

 

The law

A fresh claim under Immigration Rule 353 

[9]        The petitioner made her further submission to the Secretary of State with a view to this being treated as a fresh claim for the purposes of paragraph 353 of the Immigration Rules. Paragraph 353 sets out the correct approach on the part of the Secretary of State to material presented by way of further submissions after the dismissal of inter alia an asylum claim where there is no extant right of appeal.  Immigration rule 353 is in the following terms:

“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision-maker will consider any further submissions, and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material created a realistic prospect of success notwithstanding its rejection”.

 

It is clear from rule 353 that the Secretary of State must first consider the further submissions and reach a decision on them. It is only if she rejects the further submissions that she requires to consider whether they amount to a fresh claim and, for that purpose, to consider the matters set out in paragraphs (i) and (ii) of the rule. In respect of limb (ii), the ‘realistic prospect of success’ test in Rule 353 is not a high test. The prospects need only be “more than fanciful”:  per Laws LJ, para 34 in R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855.

 

The approach by the court in fresh claim cases

 

[10]      While there has been some debate as to the proper approach to be taken by the court in considering challenges based on a failure to comply with Immigration Rule 353, that has been authoritatively resolved for this court by the Inner House in the case of Dangol v SSHD 2011 SC 560.  In Dangol, an Extra Division of the Inner House considered the divergent views expressed in several first instance cases (referred to paragraph [6] in its decision). The court in Dangol confirmed the guidance given by the Second Division the previous year in FO,  Petitioner 2010 SLT 1087 as to the proper approach to be taken by judges sitting at first instance.  In particular, at paragraph [7] in Dangol, the court quoted the following from FO (which, in the manner of a Chinese nested box, itself contains an observation by Buxton LJ in the case of WM (Democratic Republic of Congo) v SSHD [2006] EWCA Civ 1495 (who in the passage quoted by FO was himself commenting on R v SSHD ex p Onibiyo [1996] QB 768 and Cakabay v SSHD [1999) Imm AR 176)):

 

“As far as the role of the court is concerned, guidance is to be found in the judgment of Buxton LJ in WM (DRC). […]:

‘[10] … Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

[11] First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: … The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusion to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.’’

 

(Parenthetically, I note that Jonathan Parker and Moore-Bick LJJ agreed with the judgment of Buxton LJ in WM.) After approving that observation, the Inner House in Dangol said: “That is a clear and binding statement of the procedure that generally ought to be followed”. Accordingly, a decision by the Secretary of State to refuse to treat further submissions as a fresh claim is challengeable only on Wednesbury grounds: Dangol (following FO, following DM).  A failure by her to exercise anxious scrutiny would take the decision outwith the range of reasonable decisions. Such a decision would be Wednesbury unreasonable.

 

 

 

Anxious scrutiny

 

[11]      In relation to “anxious scrutiny”, the observations of Lord Carnwath in MN v SSHD  2014 SC(UKSC) 183 at 194 are frequently quoted as providing the proper understanding of what this entails.  In MN, after setting out the context in which such decisions are taken (at paragraphs 22 to 30), Lord Carnwath said this in relation to “anxious scrutiny” (at paragraph 31):

 

“The higher courts have emphasised the special responsibility carried by the tribunals in the context of asylum appeals. It is customary in this context to speak of the need for ‘anxious scrutiny’ (following Bugdaycay v Secretary of State for the Home Department , per Lord Bridge of Harwich, p 531). As a concept this is not without its difficulties, but I repeat what I said in R (YH) v Secretary of State for the Home Department (para 24):

‘[T]he expression [anxious scrutiny] in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind: indeed, one which might be thought an ‘axiomatic’ part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however, echoing Lord Hope in R (BA Nigeria) v SSHD [2010] 1 AC 444, para 32], that there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies.” (Emphasis added.)

 

 

[12]      If the court finds that there has been anxious scrutiny, then that is the end of the matter and the challenge fails. If, however, the court finds that there has been a failure to exercise anxious scrutiny on the part of the Secretary of State, it is then incumbent upon the court to consider the materiality of any failure to exercise anxious scrutiny. That is the import of the observations of the Inner House in Ashiq, Petitioner, 2015 SLT 306, [2015] CSIH 31, per  Lady Smith at paragraph 23 (commenting on the failure of the Lord Ordinary in that case to go on to consider materiality.)  For the purposes of that consideration, the court makes its assessment on the basis of the material before the decision-taker.  It does not do so by substituting its own opinion.  It does not decide for itself whether there are reasonable prospects of success.  It considers whether the error identified is material (i.e. it gives rise to a realistic prospect of success) or it is immaterial (i.e. because, having regard to other factors the case would be bound to fail before an immigration judge).

 

Country Guidance cases

[13]      In this field of the law, some cases are designated as “country guidance” cases and are accorded a certain status.  In particular, a country guidance case is authoritative in any subsequent appeal insofar as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence: per Brooke LJ in R(Iran) v SSHD  [2005] EWCA Civ 982, [2005] Imm AR 535 (at para 21),  endorsing practice direction 18.2 of the Asylum and Immigration Tribunal (“AIT” and “the AIT Practice Directions”), and which is now found in para 12.2 of the Practice Directions of the FTT.  Further, the country guidance must be followed unless there was good reason not to apply it: R (Iran), at para 27 and para. 18.4 of the AIT Practice Direction.  Paragraph 12.4 of the FTT Practice Directions states that a failure to follow a clear and apparently applicable country guidance case is likely to be a ground for appeal in law.

 

The country guidance case of AX

[14]      In the refusal letter there was extensive reference to the case of AX (family planning) China Country Guidance [2012] UT 00097 (IAC) (“AX”).  AX is a “country guidance” case.  One of the criticisms made of the refusal letter is its reliance on the country guidance case of AX in preference to Dr Sheehan’s report.

[15]      Some of the conclusions in the country guidance case of AX are relevant to the grounds for asylum founded upon by the petitioner in her further submissions. Insofar as relevant, those conclusions are summarised as follows:-

 

“Country guidance summary

191. On the basis of all the evidence we saw and heard in this appeal, we summarise our country guidance as follows: 

Chinese family planning scheme:

(1) In China, all state obligations and benefits depend on the area where a person holds their ‘hukou’, the name given to the Chinese household registration system.  There are different provisions for those holding an ‘urban hukou’ or a ‘rural hukou’:  in particular, partly because of the difficulties experienced historically by peasants in China, the family planning scheme is more relaxed for those with a ‘rural hukou’. 

(2) It is unhelpful (and a mistranslation of the Chinese term) to describe the Chinese family planning scheme as a ‘one-child policy’, given the current vast ranges of exceptions to the ‘one couple, one child’ principle.  Special provision is made for ‘double-single’ couples, where both are only children supporting their parents and their grandparents.  The number of children authorised for a married couple, (‘authorised children’) depends on the provincial regulations and the individual circumstances of the couple.  Additional children as referred as ‘unauthorised children’. 

(3) The Chinese family planning scheme expects childbirth to occur within marriage.  It encourages ‘late’ marriage and ‘late’ first births.  ‘Late’ marriages are defined as age 25 (male) and 23 (female) and ‘late’ first births from age 24.  A birth permit is not usually required for the first birth, but must be obtained before trying to become pregnant with any further children.  The Chinese family planning scheme also originally included a requirement for four year ‘birth spacing’.  With the passage of time, province after province has abandoned that requirement.  Incorrect birth spacing, where this is still a requirement, results in financial penalty.

[….]

(9) The financial consequences for a family of losing its SCP (for having more than one child) and/or of having SUC imposed (for having unauthorised children) and/or suffering disadvantages in terms of access to education, medical treatment, loss of employment, detriment to future employment etc will not, in general, reach the severity threshold to amount to persecution or serious harm or treatment in breach of Article 3. 

(10) 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, 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. 

 

 

Risk factors

(11) In general, for female returnees, 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, 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 of 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.

[….]

 

 Internal relocation

(14) Where a real risk exists in the ‘hukou’ area, it may be possible to avoid the risk by moving to a city.  Millions of Chinese internal migrants, male and female, live and work in cities where they do not hold an ‘urban hukou’.  Internal migrant women are required to stay in touch with their ‘hukou’ area and either return for tri-monthly pregnancy tests or else send back test results.  The country evidence does not indicate a real risk of effective pursuit of internal migrant women leading to forcible family planning actions, sterilisation or termination, taking place in their city of migration.  Therefore, 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.  Whether it is unduly harsh to expect an individual returnee and her family to relocate in this way will be a question of fact in each case.”

 

[16]      For completeness, I should record that, as parties approached these matters, the case of AX acquired an added significance because of the adverse comments made by the court in that case about the evidence of Dr Sheehan. The petitioner’s senior counsel referred to paragraph 165 in AX (in which it is stated that Dr Sheehan lacked “sufficient objectivity”, that she relied on pre-2005 material and that her evidence was of “limited assistance”).  In addition, the respondents’ counsel referred to paragraphs 161 and 164 (for the observation that Dr Sheehan ‘appeared to exaggerate’ the risk in question). As the Secretary of State did not appear expressly to rely in the refusal letter on the adverse assessment of Dr Sheehan in AX as a factor informing what weight to give to Dr Sheehan’s report, these criticisms are of doubtful relevance, at least for the purposes of determining whether there has been a failure to exercise anxious scrutiny on the part of the Secretary of State.

 

The petitioner’s grounds for asylum in her fresh claim
[17]      The petitioner relied on  four  grounds for asylum in her further submissions and she submitted additional documentation to support these. The criticisms made in these proceedings, and said to demonstrate an absence of anxious scrutiny, relate to how the Secretary of State dealt with this material in the refusal letter. The main thrust of the petitioner’s challenge was the manner in which the Secretary of State dealt with Dr Sheehan’s report.  After noting the few references to Dr Sheehan’s report in the refusal letter, the petitioner’s general criticism was the failure of the Secretary of State “to engage”  with Dr Sheehan’s report and which, it was said, constituted a want of anxious scrutiny. This principal criticism was advanced at a general level, and without relating it to the Secretary of State’s approach to any of the grounds of asylum relied on by the petitioner in her further submissions. The petitioner also advanced several specific criticisms of how matters were approached in the refusal letter in respect of grounds of asylum 1 and 4. 

 

Ground 1: fear of persecution for political opinion

 

[18]      In support of this ground the petitioner submitted certain additional materials, namely items 1 to 9 (listed above, in para [4]) produced with the cover letter.  In the cover letter it was suggested that this material established that the petitioner was a member of the UK branch of the CDP (“the UKCDP”) and that she has been politically active in the UK.  It was also suggested that the articles written by her would be viewed by the Chinese state as anti-state, thereby exposing her to risk of persecution on political grounds if she returned to China: no 6/3 of process, unnumbered page 3.

[19]      The additional documentation included the UKCDP Letter and the UKCDP receipt. The UKDCP Letter was in the following terms:

“Dear Sir or Madam,

Re:  [YH]        Chinese          DOB: [supplied]

Mrs [YH] is a member and activist of UK Branch of China Democracy Party (CDP) since March 2009 (Membership No:  0431).  She has taken part in activities which were against Chinese Communist Party in UK such as recruiting new members and propagating CDP to her friends in China and UK.

According to THE CRIMINAL LAW OF THE PEOPLE’S REPUBLIC OF CHINA (Adopted by the Second Session of the Fifth National People’s Congress on July 1, 1979 and amended by the Fifth Session of the Eighth National People’s Congress on March 14, 1997):

Article 7:  This Law is applicable to PRC citizens who commit the crimes specified in this law outside the territory of the PRC; but those who commit the crimes, provided that this law stipulates a minimum sentence of less than a three-year fixed-term imprisonment for such crimes, may not be dealt with.

Chapter I Crimes of Endangering National Security

Article 98:  Whoever organises, plots, or acts to subvert the political power of the state and overthrow the socialist system, the ringleaders or those whose crimes are grave are to be sentenced to life imprisonment, or not less than 10 years of fixed-terms imprisonment;  active participants are to be sentenced from not less than three years to not more than 10 years of fixed-term imprisonment;  other participants are to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights.

I would like to affirm that if Chinese authority knows Mrs [YH]’s activities of CDP in UK, she will be in danger if she returns to China.

 

Yours faithfully

 

Hua Huang”

 

[20]      The UKCDP receipt, dated 20 November 2013, bore to record the receipt of £50 from the petitioner in respect of her membership in the UKCDP. This was also signed by Hua Huang as Secretary-General of the UK Branch of the CDP.  The UKCDP letter and the UKDCP receipt are collectively referred to as ‘the UKCDP documents’.

[21]      The Secretary of State referred to the findings in the FTT decision that neither the petitioner nor the documentation she submitted was credible. This led her to conclude: “On this basis, the credibility of the evidence submitted is challenged and the evidence is not accepted as reliable”.

[22]      The petitioner criticises this approach. It was argued that it was unsatisfactory for the Secretary of State to reject the UKDPC letter, which it was said was new, on the basis of the assessment made in the FTT decision of the lack of credibility on the part of the petitioner. This was unsatisfactory especially where, it was said, the Secretary of State could have easily checked the validity of the UKCDP letter. Indeed, it was argued that she was under a duty to do so.  This submission was developed under reference to PJ (Sri Lanka) v Secretary of State for Home Department [2015] 1 WLR 1322, and in particular to paragraphs 21 and 25 thereof (recording quotations from, respectively, the cases of Ahmed v SSHD [2002] Imm Ar 318 and MJ v SSHD [2013] Imm AR 799 referred to in the appellant’s argument) and paragraphs 29 and 30 (containing the court’s reasons).  I do not set out the paragraphs containing the appellant’s arguments in that case. They were unsuccessful and the tenor of them may be ascertained from paragraph 29 in the judgement of Fulford LJ (especially from the first passage I have highlighted), in which he said:

“29 In my judgment, there is no basis in domestic or European Court of Human Rights jurisprudence for the general approach that Mr Martin submitted ought to be adopted whenever local lawyers obtain relevant documents from a domestic court, and thereafter transmit them directly to lawyers in the UK. The involvement of lawyers does not create the rebuttable presumption that the documents they produce in this situation are reliable. Instead, the jurisprudence referred to above does no more than indicate that the circumstances of particular cases may exceptionally necessitate an element of investigation by the national authorities, in order to provide effective protection against mistreatment under article 3 of the Convention. It is important to stress, however, that this step will frequently not be feasible or it may be unjustified or disproportionate. In Ahmed’s case [2002] Imm AR 318 the court highlighted the cost and logistical difficulties that may be involved, for instance because of the number of documents submitted by some asylum claimants. The inquiries may put the applicant or his family at risk, they may be impossible to undertake because of the prevailing local situation or they may place the UK authorities in the difficult position of making covert local inquiries without the permission of the relevant authorities. Furthermore, given the uncertainties that frequently remain following attempts to establish the reliability of documents, if the outcome of any inquiry is likely to be inconclusive this is a highly relevant factor. As the court in Ahmed's case observed, documents should not be viewed in isolation and the evidence needs to be considered in its entirety.” (Emphasis added.)

 

[23]      Fulford LJ proceeded to consider in what circumstances there might be an obligation on the part of the Secretary of State to verify documentation. In particular, at paragraph 30, he said:

“30 Therefore, simply because a relevant document is potentially capable of being verified does not mean that the national authorities have an obligation to take this step. Instead, it may be necessary to make an inquiry in order to verify the authenticity and reliability of a document—depending always on the particular facts of the case—when it is at the centre of the request for protection, and when a simple process of inquiry will conclusively resolve its authenticity and reliability: see Singh v Belgium given 2 October 2012 , paras 101–105. I do not consider that there is any material difference in approach between the decisions in Ahmed's case and Singh v Belgium , in that in the latter case the Strasbourg court simply addressed one of the exceptional situations when national authorities should undertake a process of verification”. (Emphasis added)

 

[24]      The petitioner’s senior counsel, Mr Dewar, relied especially on the observations I have highlighted in the quotation in the preceding paragraph. It was argued that there were exceptional circumstances present in this case. The UKCDP letter was, it was said, central to the petitioner’s case.  While it was accepted that in the cases considered in PJ (Sri Lanka)  the court had referred to documents that could be readily verified from ‘unimpeachable sources’, it was argued that the UKCDP letter was a single document that could have readily been verified.   Instead, the Secretary of State had simply relied on the FTT’s treatment two years earlier of what was said to be a similar letter.  It was argued that that approach did not disclose the necessary anxious scrutiny.

[25]      The refusal letter continued (at paragraph 25) saying that, “[n]otwithstanding the above, due regard has been had to” and then documents produced as items 2 to 8 with the further submissions are recorded.  There was then set out (at para 26 of the refusal letter) paragraphs 3.12.10 to 3.12.12 from the Operational Guidance Note for China. The refusal letter continued:

“26.     Specific regard has been had to the Operational Guidance Note for China which states the following: 

‘3.12.10           Conclusion:  The Supreme Court held in RT (Zimbabwe) that the rationale of the decision in HJ (Iran) extends to the holding of political opinions.  An individual should not be expected to modify or deny their political belief, or the lack of one, in order to avoid persecution. 

3.12.11            The principle established in RT applies with regard to those with no political opinion in addition to those who hold political views opposing the Chinese Communist Party.  Internal relocation is not likely to be an option for such claimants, but case owners should give careful consideration to the individual circumstances and details of the case. 

3.12.12            It is clear that the Chinese authorities may take serious action against individuals involved with opposition political parties, perceived government critics and organisations and individuals involved in rights advocacy and public interest issues, who they believe pose a threat to the state, and that this treatment is likely to amount to persecution.  Where an individual is able to demonstrate that they are at serious risk of facing such persecution on account of their activities a grant of asylum will be appropriate.’ 

(Operational Guidance Note for China:  October 2013:  Section 3: 3.12.10-3.12.12)

 

‘27.      For the reasons provided by Judge Bradshaw in paragraphs 177, 181-186 of your clients appeal determination, as detailed above, it is considered that although your client has submitted evidence that her name is now visible with her photograph on the UK Branch of China Democracy Party the evidence is not sufficient to substantiate that she has a visible political profile in China.  The new evidence does not substantiate that your client is of adverse interest to the authorities in China, it is therefore considered that your client does not have a visible political profile in China. 

28.       It is duly noted that your client’s appeal was concluded on 13 September 2012 and her removal from the United Kingdom with her dependants is being pursued.  The timing of your client’s submissions raises further credibility issues.  Due regard is had to Judge Bradshaw’s comment made at paragraph 182 of your client’s appeal determination:  ‘It seems to me that the Appellant may have joined the party with a view to this helping her in her claim for asylum and this may be how and why the Appellant’s photograph is on the said website’.  It is duly noted that your client has claimed that she has rejoined the UK Branch of China Democracy Party and that she has had her name added to their since her appeal was dismissed.  It is considered from your client’s actions that she has purposefully had her name added to the UK Branch of China Democracy Party website and that she has purposefully published articles on their websites as a means of bolstering her claim for asylum and frustrate her removal from the United Kingdom”.

 

[26]      Mr Dewar advanced a number of specific criticisms of this part of the refusal letter. In relation to paragraph 27, it was argued that the Secretary of State had wrongly concluded that the petitioner had no ‘visible profile’ in China. The petitioner’s name and photo appeared on the UK website of UKCDP.  It made no sense to argue that she had no political profile in China. Furthermore, it was pointed out that the FTT had concluded that the petitioner had not been politically active on behalf of the CDP in the UK: reference was made to para 181 of the FTT decision.  Accordingly, the UKCDP letter was “new” and the Secretary of State had to engage with it on its terms.  In respect of the observation at paragraph 182 of the FTT decision, to the effect that it appeared that the petitioner had joined the UKCDP with a view to helping her claim for asylum, and  which observation was repeated at the end of para 28 of the refusal letter, it was argued that however unpalatable that was, it did not matter if the consequence was that she was objectively at risk by reason of that conduct: see KS (Burma) v SSHD [2013] Imm AR 3 525 at para 32.  Accordingly, it was argued that it was not enough for the Secretary of State to characterise this as cynical.  Not only did she fail to exercise anxious scrutiny, it was argued that she wholly failed to engage with this matter.

[27]      In order to demonstrate what might happen to the petitioner, Mr Dewar referred to Dr Sheehan’s report. The petitioner was at risk of being profiled as someone who had a child born abroad, and so at risk of being questioned (paragraph 4 of Dr Sheehan’s report). It was argued that the fact that the petitioner had made an asylum claim was itself a new factor and one that was likely to lead to mistreatment. Under reference to paragraphs 78 to 80, and 86 of Dr Sheehan’s report, it was argued that the petitioner would be profiled as someone who was likely to have been an asylum seeker, and so was at risk.

[28]      The refusal letter continued:

“29.     By her own account, your client was able to return to China without incident in 2010 and she has confirmed that she experienced no problems from the authorities in China.  It is not accepted that your client has any adverse interest in her by the authorities in China.  It is not accepted that your client would be of interest to the authorities in China on her return as it is not accepted that they are aware that she has any political profile. 

 

30. It is considered that your client has failed to demonstrate that she is of adverse interest to the authorities in China.  It is not accepted that your client would be identified by the authorities in China on the basis of her political profile in the United Kingdom.  It is considered therefore that your client has failed to demonstrate that she is at serious risk of facing persecution on account of her political activities in the United Kingdom. 

 

31. Further to the above, it is duly noted from the Operational Guidance Note for China dated October 2013 that those who remain in the United Kingdom illegally can apply for Assisted Voluntary Return through Choices, it is considered that should your client choose to return voluntarily to China with her dependants that she would not be identified by the authorities in China as a returning failed asylum seeker and that in turn she would not be identified by her political activity in the United Kingdom. 

 

32. In light of the above it is not considered that your submissions on behalf of your client that your client is at risk on return to China due to her political activity in the United Kingdom stands a realistic prospect of success before an Immigration Judge.” 

 

[29]      In relation to the rest of the passages of the refusal letter dealing with this matter, it was argued that it was not enough to refer to the fact that the petitioner had returned to China in 2010.  This was to get married.  She has since made an application for asylum.  She has since had two children.  And, her name and photo now appear on the UK website of the UKCDP.

 

Ground 2: fear of persecution as member of a particular social group

[30]      The social group the petitioner was said to belong to was that of persons who broke China’s “one child policy” (“the one child policy”). The petitioner and her husband now had two children both of whom were born in the UK.  In the further submissions reference was made to the family planning regulations for Fujian Province.  Reference was also made to the Home Office Operational Guidance Note and the passages there about possible forced sterilisation or abortion in some cases to enforce the one child policy.

[31]      There was no challenge made to any particular part of the refusal decision dealing specifically with this ground for asylum. Rather, the criticism was directed at the way in which the Secretary of State had approached the Dr Sheehan’s report.  While there is reference to Dr Sheehan’s report at a later point in the refusal letter, there was no express reference to it in this part of the refusal letter. The Secretary of State had relied extensively on AX. However, it was argued that Dr Sheehan’s report was supplementary to AX, but her report “did not get a look in”. It was said that the Secretary of State’s approach demonstrated a failure of anxious scrutiny.

 

Ground 4: risk of return as a failed asylum seeker

 

[32]      Ground 4 for asylum advanced by the petitioner in the further submissions was that she was at risk of return as a failed asylum seeker.  In particular, she would be at risk of detention and persecution at the airport.  Paragraphs 78, 79, 83, 84 and 86 from Dr Sheehan’s report were quoted from and relied upon in the cover letter in support of this ground for asylum. The cover letter was in the following terms:

“D) Risk on return as a failed asylum seeker

It is submitted that the following extracts from Dr Sheehan’s report confirm that our client would be at risk of detention and persecution upon arrival in China due to her return as a failed asylum seeker. 

We would refer to paragraph 78 of the report where it is noted:

‘… The evidence of what happens to failed asylum seekers on their return to China is very sketchy, which is why some NGOs have developed projects to try and keep in touch with returnees in orders to develop more of an evidence base.  There is some evidence, though, that the Chinese authorities attempt to identify returnees who have tried to claim asylum abroad, and that failed asylum applicants may be detained back in China.  The Australian Refugee Rights Alliance (ARRA) has expressed concern at the number of Chinese returnees who disappear on return and whose families do not know what happened to them, as well as about known cases of detention and torture of returnees.’

It is submitted that our client would be at risk of identification and persecution on return to China.  This is especially given the fact that her photograph is on the website of the UK branch of the China Democracy Party, a fact which has been accepted by the Home Office, and by the Immigration Judge who heard her appeal in June 2012. 

Since then our client has had articles published on the website of the UK Branch of the China Democracy Party, which criticise the Chinese Government, and which identify her by her photograph and name.  It is submitted that this will place our client at a real risk of persecution if returned to China.

The report from Dr Sheehan goes on to note at paragraph 79 that: 

‘… In addition, the process of obtaining travel documents for the removal of Chinese nationals alerts local (PSB) officials as identity documents are confirmed in the hometown of registration.  Families are also placed in danger as the investigation of cases increases or promote the level of harassment and surveillance … there remains a continual problem of leaked documents regarding background investigations with evidence from those deported that Chinese authorities have extensive detail of their cases for asylum in Australia … Several asylum seekers received warnings from their families that the Public Security Bureau (PSB) was waiting to interview them when they returned to China.  Of those being tracked, none have returned home for fear of their families and their safety, or they have disappeared and their families have grave concern for their whereabouts.  There are now many cases of deportees being tortured upon their return to China following ‘secret’ trials and imprisonment’. 

The treatment of returnees was given further consideration at paragraph 83 of the report.  This example relates to connection with Falun Gong, but highlights the resentment of the Chinese Authorities to those who have claimed asylum.  It should also be noted from the extract from the OGN above, that the Chinese Government class members of the CDP as similar to Falun Gong practitioners as opposing the Chinese State:

‘… Another case of a deportee being detained in connection with Falun Gong is that of a man known only as Mr Zhang, who was refused asylum in Australia.  He was able to get word to his supporters that he had been detained ‘as soon as Australian immigration officials were out of sight at Chinese customs’, interrogated and tortured over a period of 15 days, including having his fingers deliberately broken… Showing the Chinese authorities ‘anger at asylum applicants’ presentation of China as a country where their rights are likely to be violated, the police told Mr Zhang that he had ‘disgraced his country’ and that execution was too good for him.  In 2008 Mr Zhang committed suicide in China.’ 

Another example of the mistreatment of returnees, and the Chinese Authorities concerns regarding their perception, is highlighted at paragraph 84 of the report: 

‘… One of the most interesting aspects of his experience, however, is the lengths to which the Chinese authorities went to create the public impression, particularly abroad, that nothing had happened to him after he was deported to China.  The police took a picture of him and his wife, and this was then posted online with a completely fabricated account by a ‘colleague’ of Mr Wu’s that he had gone on an outing with Mr Wu and his wife, in complete freedom and safety, on which the pictures had been taken.  A meeting was arranged at which Mr Wu could tell Korean reporters that everything was fine and that he had not been victimized on return to China, and he was dropped off by the police around the corner from the entrance to the hotel where the reporters were waiting so that they would see him apparently free to move around as he wished.  Threats to harm his children if he did not cooperate forced him to play his part in the elaborate charade.’

Dr Sheehan concludes at paragraph 86: 

‘… is, of course, neither a political activist nor a practitioner of Falun Gong, but she is a mother, and I am of the view that the birth of her son while she has been in the UK will lead the Chinese consular authorities to profile her as someone likely to have tried to claim asylum on ground of having violated the one-child policy.  Given the high profile of abusive enforcement of family-planning regulations over the past 18 months, fuelled by Chen Guangcheng’s escape from home arrest and exile in the United States, and by the Feng Jianmei case mentioned in paragraphs 16, 25 and 42 and 66 above, the Chinese authorities will be particularly keen to dissuade potential asylum seekers from drawing further international attention to the issue.’ 

It is submitted that in light of the above, our client is therefore at risk of detention and persecution at the airport upon return.  It is submitted that she will be faced with questioning and cannot be expected to lie.  This is noted at section 3.9.7 of the current Home Office Operational Guidance Note for China:

3.9.7 Conclusion:  The Supreme Court held in RT (Zimbabwe) that the rationale of the decision in HJ (Iran) extends to the holding of political opinions.  An individual should not be expected to modify or deny their political belief, or the lack of one, in order to avoid persecution. 

It is therefore reasonable to conclude that our client will be of interest upon return due to the risk factors of her political opinion;  her involvement with the UK CDP;  her breach of the family planning regulations;  and her potential status as a failed asylum seeker”.

 

[33]      The Secretary of State rejected this ground for asylum. It is necessary to set out that part of the refusal letter which addresses this ground. Paragraphs 53 to 58 of the refusal letter are in the following terms:

“53.     Humanitarian Protection:  Risk on Return as a Failed Asylum Seeker

54.       It is claimed that your client would be at risk of mistreatment on return to China on the basis that she is a failed asylum seeker.  It is implied that your client’s return to China would breach the United Kingdom’s obligations under Articles 2 and/or 3 of the ECHR.  In support of this claim your client has submitted a photocopy of an unsigned expert report by Dr Jackie Sheehan dated 29 August 2013.

55.       Further to the above, it is implied that a data breach by the Home Office in January 2014 has exposed your client to increased risk.  It is implied that Articles 2 and/or 3 of the ECHR are engaged on the basis of the data breach, in the round with the other facts of your client’s case.

56.       Due regard has been had to photocopy of an unsigned expert report by Dr Jackie Sheenan dated 29 August 2013.  Further regard has been had to the Country of Origin Information Report for China dated 20 December 2013 and the Operational Guidance Note for China dated October 2013.

57.       It is duly noted that the report submitted is an unsigned photocopy and that it has not been written in relation to your client.  The contents are noted, however it is further noted that there is no objective evidence provided by the Country of Origin Information Service to corroborate that failed asylum seekers are at risk on return to China.  There is no objective evidence to corroborate that failed asylum seekers are identified and detained by the Chinese authorities on return.  It is duly noted from the Operational Guidance Note for China dated October 2013 that those who remain in the United Kingdom illegally can apply for Assisted Voluntary Return through Choices, it is considered that should your client choose to return voluntarily to China with her dependants that she would not be identified by the authorities in China as a failed asylum seeker.

58.       Your client has provided no evidence to substantiate her implied claim that the data breach by the Home Office in October 2013 has placed her at specific risk.  It is reiterated from the information in the Home Office letter dated 5 January 2014 addressed to your client that she should consider seeking legal advice and whether there is any action with regards to the data breach which she may wish to take.  It is reiterated that it is considered by the Home Office that the data breach will not have put your client at risk of harm or of being the subject of fraud through identity theft.  It is further reiterated that your client be strongly encouraged to take preventative measures to help prevent and detect any misuse of her information”.

 

[34]      Mr Dewar went through these passages. His position was that nowhere did the Secretary of State engage with Dr Sheehan’s report. It was not enough for her to say “due regard” had been had to it.  By way of illustration of this, reference was also made in oral submissions in these judicial review proceedings to paragraphs 6, 22, 24 to 28, 30, 33 to 35, 37 to 38, 44, 76 and 77 of Dr Sheehan’s report.  (For reasons that will become clear, I should note that none of these passages was relied on, or even referred to, in the cover letter submitted by the petitioner’s agents to the Secretary of State).  Mr Dewar also highlighted passages in Dr Sheehan’s report with information or references said to post-date the country guidance in AX.

 

Respondents’ reply

The respondents’ challenge to the petitioner’s reliance on Dr Sheehan’s report in these proceedings

[35]      A number of discrete issues arise from parties’ reliance on, or criticism of, Dr Sheehan’s report. Mr Dewar explained that the principal criticism is what he says was the failure of the Secretary of State in the refusal letter to engage with Dr Sheehan’s report.  In meeting this general challenge, the respondents’ counsel, Mr Pirie, advanced three discrete arguments as to why the petitioner’s reliance on Dr Sheehan’s report in these proceedings was misconceived.   In particular, he advanced the following propositions:

1. The Secretary of State was entitled to assume that anything the petitioner relied upon would be set out in her agents’ cover letter (“the notice issue”);
2. If an application fell within the ambit of a country guidance case, thedecision-taker (whether that be FTT or the Secretary of State considering matters from the standpoint of the first instance adjudicator) was bound to follow an applicable country guidance case, unless there was good reason not to follow such guidance (“the country guidance issue”); and
3. A third party report, that is a non-generic report prepared for a person other than the applicant, may not be used unless the author has agreed that it may be relied upon (“the Slimani issue”).

He developed his submissions on these points.

 

            (i)         The notice issue

[36]      There is a dissonance between the way in which Dr Sheehan’s report was referred to in the cover letter and the much more extensive reference made to it, and reliance placed on it, for the purpose of these judicial review proceedings.  Mr Pirie contends that the petitioner did not give fair notice in the cover letter of those matters in Dr Sheehan’s report now relied upon in these proceedings. 

[37]      In particular, under reference to R (B and another) v SSHD [2014] 1 WLR 4188 (CA), it was argued that the Secretary of State was entitled to approach Dr Sheehan’s report in the manner she did because of the omission to refer in the cover letter (comprising part of the further submissions) to the specific passages of Dr Sheehan’s report founded upon.   In R (B and another) v SSHD, the removal of the applicant’s father and daughter to France was resisted inter alia on the basis that removal would be a breach of their Convention rights under articles 8 and 9, and that deportation would not be in the best interests of the daughter (who was a child). The daughter chose to wear a veil and France had outlawed the wearing of symbols or clothes in schools that conspicuously identified the wearer’s religion.  There was a particular criticism made in the course of argument in that case that the Secretary of State had failed to have regard to the fact that state education would be denied the daughter by reason of her wearing the veil.  In dealing with that Lord Dyson MR said (at paragraph 35) that “I do not consider that the Secretary of State can reasonably be criticised for failing to address this point in her letter of 14 February.  She was entitled to assume that the matters on which the claimants wished to rely were those set out in the solicitors' letter.”  (Emphasis added.)

[38]      From that observation Mr Pirie drew the general proposition that an applicant must give notice in the applicant’s representatives’ cover letter of the passage or passages relied upon in any accompanying material. As will be seen, in relation to grounds 1 and 2 (as insisted upon), other than a passing mention of Dr Sheehan’s report, no reference was made in the cover letter to any particular passage of it.  It was only in support of ground 4 that the cover letter referred to several paragraphs in Dr Sheehan’s report.  Many more passages from Dr Sheehan’s report were identified in the course of the oral submissions, and in the written reply by the petitioner’s counsel lodged shortly before the continued first hearing.

 

            (ii)        Country guidance issue

[39]      In this case, it was pointed out that there was the country guidance for China in respect of family planning (including the one child policy) provided by the case of AX. The petitioner’s application was, it was argued, within the scope of AX.  In considering the petitioner’s application, the Secretary of State had to approach matters as they would be approached by the FTT. The FTT would be bound to apply the country guidance in AX unless there was good reason not to.  There was nothing, therefore, to the criticism that the Secretary of State placed significant reliance on AX in her refusal letter.

[40]      There was a further way in which Mr Pirie challenged the petitioner’s reliance on Dr Sheehan’s report. This was the “Slimani issue”, to which I now turn.

 

            (iii)       The Slimani issue

[41]      Mr Pirie advanced a separate reason why, he said, the petitioner’s reliance on Dr Sheehan’s report was misplaced.    The starting point is that the ground of review in these types of cases is one of Wednesbury unreasonableness. This is assessed by having regard to the material available to the decision-taker at the material time: see per Laws J (as he then was) in R v Secretary of State for the Home Department ex parte Kazmi [1994] Imm AR 94, at pages 100 to 101.  The argument advanced by the respondent was whether, for this purpose, Dr Sheehan’s report fell to be disregarded.  The argument put was this: in considering the materiality of any error, regard is had to the material available to the decision taker (the Secretary of State), but regard is also had to the law as it would apply to that material.

[42]      In respect of Dr Sheehan’s report, this was a report she had prepared in relation to a different person. It did not relate to the petitioner. Mr Pirie referred to certain observations of Collins J deprecating the practice of  relying on third party reports (as I have called them) in the case of Slimani v Secretary of State for the Home Department  [2001] UKIAT 00009 (“Slimani”.)  Toward the end of Slimani Collins J (as he then was) stated that:

“We would add that all too often reports prepared for a specific case are relied on in other cases in which appellants from the same country are represented by the same advisers This should not happen unless the report is stated to be general and to be valid for all cases or the author is asked to confirm that he is content for it to be relied on. Apart from anything else, conditions change and views which may have been valid when the report was written might not be twelve months later”. 

 

At the time when the Secretary of State was considering Dr Sheehan’s report, neither of these alternative conditions had been satisfied. The petitioner’s agents had endeavoured to address this by asking Dr Sheehan in an email dated 15 October 2015 if she “had any objections” to the agents using her report in these judicial review proceedings. By email dated 19 October 2015 Dr Sheehan confirmed that she was fine with this.  (The email string was lodged as no 6/9 of process.)

[43]      Mr Pirie’s position was that that was of no avail. This email had not been before the Secretary of State at the material time.  In any event, at the material time Dr Sheehan had not given her consent to the petitioner for the use of her report (which was a third party report). In the absence of that consent, the Secretary of State could not have regard to Dr Sheehan’s report. Accordingly, even if there had been a failure of anxious scrutiny, then the court had to approach this on the basis of the material that was available to the Secretary of State, but to disregard Dr Sheehan’s report because at the time of her consideration the Slimani condition had not been met.  On that basis, it was argued, any failure to exercise anxious scrutiny was immaterial because the application was bound to fail. This was because, correctly directing herself and on the basis of Slimani, the Secretary of State would have properly disregarded Dr Sheehan’s report. At best for the petitioner, the Secretary of State would have accorded it little weight.

[44]      The argument was presented on the hypothesis that there had been a failure to exercise anxious scrutiny. If that were the case, then it was at that stage that the court itself required to consider the materiality of any failure: see paragraph [12], above.

It was at this stage that the court had to consider the materiality of any want of anxious scrutiny on the part of the Secretary of State, applying the test of reasonable prospects from the perspective of a first-instance adjudicator. Implicit in this submission was the proposition that the Secretary of State had fallen into error in the refusal letter by referring to Dr Sheehan’s report without the Slimani condition having been satisfied. Mr Pirie was reluctant to characterise matters in this way. For his part, Mr Dewar, whose argument was heavily dependent on passages from Dr Sheehan’s report, was equally reluctant to contend that the Secretary of State was in error in having regard to Dr Sheehan’s report.

[45]      Mr Pirie’s contention was that the Secretary of State was entitled to disregard Dr Sheehan’s report.  (The Slimani issue).  If that were correct, then even if there were any error in respect of the Secretary of State’s treatment of Dr Sheehan’s report (i.e. the materiality of that error fell to be considered), the petitioner’s application was bound to fail because the Secretary of State was entitled to disregard that report.

 

Respondents’ reply to specific challenges
[46]      Mr Pirie then turned to note what material had been before the Secretary of State. This included:

1. the FTT decision (at 7/3 of process),
2. the country guidance case of AX,
3. the Country of Origin Information Report (“COI report”) producedby the Country of Origin Information (‘COI’) service of the UK Border Agency (“the UKBA”) (at 6/10 of process), and
4. the Operational Guidance Note for China (at 6/7 of process) (“the OGN”).

He looked at these in turn.

 

(i)         The FTT decision.

[47]      In respect of the FTT decision, it was argued that the determination in the FTT was the proper starting point in respect of the petitioner’s fresh claim application. Reference was made to paragraphs 17 to 20, 23, 31, 36, 128, 144, 164 to 167, 177, 181 to 183, and 185 to 186 thereof.  Those paragraphs contain detailed consideration of the petitioner’s claim to have been an active member of the CDP abroad, in that she asserted that she had recruited two members to it in China (para 144), and that her photo (although not her name) appeared on the website of the UKCDP (para 36).  Materials from the UKCDP were submitted by the petitioner in support of her first claim which has been rejected by the Secretary of State and the FTT in its decision.  It was noted that the petitioner had returned to China for a month (in late March 2010) using her own passport and visa, and had married her husband there before returning in late April 2010 (para 23).  It was also noted that she did not then claim asylum, but only did so once she came to the attention of the Immigration authorities. In its decision the FTT did not accept that the petitioner was politically active in the CDP in China on the basis of having recruited two members (para 164).  It found that the letters from the UKCDP were inaccurate in certain respects (paras 165 to 168) and it doubted their authenticity or genuineness (para 177).  The FTT did not consider that the petitioner had been politically active in the UK, notwithstanding that her photo appeared on the UK website of the UKCDP (para 181) and it did not accept that she was politically active in China to an extent that would interest the authorities (para 182).  Even if the petitioner were a member of the UKCDP, the FTT had concluded that there was no indication that the authorities in China were aware of her activities (para 185) and it was noted that she could return to China without coming to the adverse notice of the authorities (para 183).   

 

            (ii)        The country guidance in AX

[48]      Under reference to the country guidance case of AX it was noted that its subject-matter was in respect of the operation of the Chinese family planning scheme, “in particular, the risk of persecution or serious harm on return to China affecting Chinese citizens living abroad and their children”.  It was also noted that the case was China-wide in its scope and was not restricted to a particular province (para 10).  Indeed, there was specific reference to Fujian province (paras. 61 to 66). The consideration of Dr Sheehan’s evidence by the tribunal in AX, has already been noted, above, at para [16].  The respondent also founded on the summary guidance in sub-paragraphs (9) to (11) and (14) to para 191 of AX and which I have set out above, at para [15], above.

 

            (iii) and (iv)  The COI Report and the OGN
[49]      Mr Pirie next referred to two sources that he characterised as objective information, namely the COI report and also the Operational Guidance Note for China (“the Operational Guidance Note”). In particular, he referred to the preface to the COI report for China dated 12 October 2012.  (The refusal letter quotes from the COI report for China.)  It states (at para v) that the information in the COI report is limited to that which is identified from source documents and that in producing reports the COI service seeks to provide “accurate, up to date, balanced and impartial compilations of extracts” from the source material.  He next referred to the OGN dated 29 August 2012 and produced by UKBA.  In terms, it stated that it was guidance but it enjoined caseworkers not to base decisions on the country of origin information in the OGN (para 1.1 and 1.2 thereof).

[50]      Under reference to these materials, Mr Pirie argued that none of this documentation demonstrated a real risk of prosecution in China for a member of the CDP.  This was the context in which to assess the FTT’s conclusion about the lack of profile of the petitioner that is recorded in the FTT decision.

 

            What material was new?

[51]      Accordingly, the next matter to consider was to ask: what was new in the material presented by the petitioner in support of her fresh claim?  Looking at Dr Sheehan’s report, it was immediately apparent that the circumstances of the subject of that report were different. The subject of that report was an overstayer who had lost her passport.  She would need Chinese consular assistance in the form of issuance of emergency travel documents in order to return to China (para 4).  In respect of such a person, it was asserted in Dr Sheehan’s report that the Chinese authorities try to find out whether a returnee has made a claim for asylum.  By contrast, it was argued, the petitioner would not come to the notice of consular officials in this way.  Another difference between the circumstances of the subject of the Dr Sheehan’s report and the petitioner is that the former was contemplating a return without her husband, with the consequence that she might be treated as a single mother to her disadvantage (para 73 of Dr Sheehan’s report). As the petitioner’s husband’s presence in the UK was derived from the petitioner, there was no question but that the petitioner’s husband would return to China with her.

[52]      In respect of the first ground for asylum, in the cover letter it was simply noted (at the unnumbered fourth page)  that Dr Sheehan’s report was attached, together with various other items, to support the assertion that it would be unduly harsh to require the petitioner to relocate internally within China.  No particular paragraphs from Dr Sheehan’s report were identified in the cover letter as relevant to this ground. This assertion (that internal relocation would be unduly harsh) was repeated, under the heading (on the seventh page of the cover letter) “Internal relocation”.  Again, the cover letter did not identify any particular paragraphs of Dr Sheehan’s report as relevant or in support of this assertion.  This raised the notice issue. It was only under the heading “Risk of return of a failed asylum seeker” (on the ninth page of the cover letter and relevant to ground 4) that any reference was made in the cover letter to specific paragraphs in Dr Sheehan’s report, namely paras. 78, 79, 83 and 84.  It was noted that even Dr Sheehan accepted (at para 78 of Dr Sheehan’s report) that the evidence of what happened to failed asylum seekers “is very sketchy”.

[53]      More fundamentally, the respondent argued that these issues were all within the subject matter of the country guidance case of AX.  However, there was no request in the cover letter to disapply the country guidance case of AX.  On the authorities, it was argued that the country guidance fell to be applied.  It would be an error of law not to apply the findings of AX.  There was no explanation as to how Dr Sheehan’s report differed from her evidence before the tribunal in AX.  Dr Sheehan’s report and the source material for it pre-dated AX.  Furthermore, not only was there no request to disapply the country guidance in AX, there was no discussion of the basis for not applying AX. There was no explanation of how that evidence, whatever it was, was different from AX. The refusal letter states that Dr Sheehan’s report was taken into account. It is now said by the petitioner that this was not so. However, it was relevant to consider what the decision-taker was actively asked to decide. The cover letter did not ask for the country guidance to be disapplied. It did not explain why Dr Sheehan’s report should be preferred or was a basis for disapplying the country guidance in AX.  No aspect of Dr Sheehan’s report was identified for this purpose.  No notice had been given of those passages or conclusions of Dr Sheehan’s report relied upon. This was the nature of the material before the Secretary of State.  Having regard to that material, it was argued that there was no material error of law on the part of the Secretary of State.  

[54]      Looking at the refusal letter, this was some 31 pages long and detailed. This was suggestive of anxious scrutiny. There was no error of law advanced in respect of how the Secretary of State dealt with any particular ground of asylum. If there were an error on the part of the Secretary of State in the form of a want of anxious scrutiny, it was said that failure of anxious scrutiny was not material. This was because, on the material before her, there was no realistic prospect of success. 

[55]      In Ashiq, the Inner House had said that, where something was not looked at, the reviewing court had to consider whether that omission was material or not.  What was particularly telling here, it was argued, was that Dr Sheehan’s report had been taken into account.  It was unsigned.  It was of very limited scope, as it was concerned with the mother of a child born out of wedlock (para 3) and who might be treated as a single mother if she returned to China without the father of her child.  The subject of Dr Sheehan’s report had lost her passport and would necessarily come to the notice of Chinese consular officials in the UK. None of these features applied to the petitioner.  The petitioner’s husband’s status in the UK was entirely dependent on the petitioner.  There was no issue but that he would return to China with her.  This was in contrast to the position of the subject of Dr Sheehan’s report (para 73 thereof).  Accordingly, Dr Sheehan’s report was considering a different factual situation than that pertaining to the petitioner.  There was no statement in the cover letter to the effect that, notwithstanding these factual differences, the same conclusion reached by Dr Sheehan in her report in respect of a third party applied to the petitioner’s circumstances.

[56]      Mr Pirie’s primary position was that, for the purpose of considering matters afresh (on the hypothesis that there was an absence of anxious scrutiny), no regard should be had to Dr Sheehan’s report.  This was the Slimani point. This was a third party report in respect of which, at the time the Secretary of State considered it, neither Slimani condition had been satisfied. But, even if regard were to be had to Dr Sheehan’s report, Dr Sheehan had not said (in the email chain (at 6/9)) that what she had concluded about the subject of her report was applicable to the petitioner.  The Secretary of State was simply not provided with sufficient information in order to decide for herself that what was said in Dr Sheehan’s report about the subject thereof could, or should, be applied to the petitioner.

[57]      Further, there was no information as to whether Dr Sheehan’s report had been put before an Immigration Judge by or on behalf of the person who was the subject of Dr Sheehan’s report. There was no information as to what the Immigration Judge had made of it.  This was important because the UT has already been critical about Dr Sheehan and the topic that her report covered.  Reference was then made to the criticisms made of Dr Sheehan in AX, which I have noted above.

 

The respondent’s reply to the specific criticisms

[58]      Mr Pirie then turned to respond to the several specific criticisms advanced by Mr Dewar.  The petitioner directs criticism to how the Secretary of State dealt with 3 items: (i) the UKCDP letter, (ii) Dr Sheehan’s  evidence about questioning of a returnee at the airport and (iii) Dr Sheehan’s evidence about the one child policy.  (The criticism made in the petition to the Secretary of State’s treatment of the CDP website material was not insisted on at the first hearing.)

 

            (i)         The UKCDP letter

[59]      In relation to the UKCDP letter, it was clear from the face of the refusal letter that this had been taken into account: the refusal letter said so, at para 23.  If it hadn’t been, the Secretary of State would not have been able to express a view as to whether or not it was similar to the letter from the UKCDP submitted in support of her first application for asylum and considered by the FTT in the FTT decision.  What the Secretary of State made of the UKCDP letter was beside the point for the purposes of any challenge based on the lack of anxious scrutiny.

[60]      Further, the starting point in any consideration of the petitioner’s fresh claim (from the standpoint of an adjudicator) was the FTT decision made in respect of her first application.  The FTT decision is relevant for present purposes because the Secretary of State relied on it as part of her basis for refusing this ground.  She justified her reliance on the FTT decision, including its determinations of the lack of credibility of the petitioner and of certain documentation, under reference to the case of SSHD v D (Tamil) [2002] UKIAT 00702 (“Devaseelan”), and from which Mr Pirie drew the following propositions:

(i)         that a future adjudicator is entitled to treat an earlier determination of an applicant’s account as determinative of that account;

(ii)        that a Tribunal’s starting point in any further determination should always be the first determination; and

(iii)       that where an applicant relies essentially on the same evidence as in an earlier appeal, the second adjudicator should regard that issue as settled by the first determination and should make findings consistent with that earlier determination rather than allow the matter to be re-litigated.

[61]      These were invoked because, while it was accepted that the Secretary of State was not an adjudicator per se, Devaseelan justified a like starting point in her consideration of matters to the extent that these had been considered and determined by the FTT decision.  (Mr Dewar did not challenge this aspect of the Secretary of State’s approach.)

[62]      Mr Pirie began by noting what had been said in the FTT decision about an earlier letter from the UKCDP (produced at 7/2) which had been relied upon by the petitioner in her first failed asylum claim (“the first UKCDP letter”), then he turned to consider the differences between the first UKCDP letter and the one produced by the petitioner as part of her further submissions (produced at no. 6/3/a of process and set out above, at para [19]).  The first UKCDP letter had provided more information than the one relied on in her further submissions. Notwithstanding the greater detail that was provided in the first UKCDP letter, the FTT had rejected it in the FTT decision.  This was relevant to the consideration of the prospects of success, especially since the author of the first UKCDP did not respond to the criticisms made in the FTT decision about the first UKCDP letter.  Against that background it could not be said that there was an absence of anxious scrutiny in how the UKCDP letter had been considered.

[63]      In any event, the UKCDP letter was equivocal: it simply suggested that ‘if’ the Chinese authorities knew of the petitioner’s activities, she will be in danger. The activity referred to on the part of the petitioner was minimal, and was substantially similar to what was advanced in the first UKCDP letter.

[64]      Mr Pirie then turned to Mr Dewar’s argument that there is a duty of fairness to carry out further inquiries. The respondents accept that a duty can arise, but in the circumstances of this case there was no duty to carry out further inquiries. In an application under rule 353, the general position was that it was for the petitioner to put the material before the Secretary of State.  In support of that proposition reference was made to the observation of Lord Doherty in AA v SSHD [2012] CSOH 76, unreported, at paragraph 33, where he said:

“[33] I am not persuaded that there was any error on the part of the Respondent in this regard. She applied the correct principles. She was entitled to decide as she did. Indeed, her conclusion is unsurprising having regard, ….. to the paucity of the information provided by the Petitioner. In relation to that paucity it simply will not do to say that matters could be further explored if there were an appeal to an Immigration Judge. It was for the Petitioner to put before the Respondent the material on which his claim rests. In this connection I respectfully agree with the observations of Mr David Elvin QC, sitting as a Deputy Judge of the High Court, in R(Z) v Secretary of State for the Home Department 2009 WL 2173189:

‘50. It is not the role of the fresh claim procedure simply to allow inferences to be raised in the absence of clear new information in the hope that something might subsequently be placed before an Immigration Judge which could lead to a favourable outcome. Even the modest test explained in WM and the requirement of anxious scrutiny are not met merely by raising the possibility of an investigation of unrevealed facts on what amounts to no more than a fishing expedition”.

 

[65]      As for the petitioner’s reliance on PJ (Sri Lanka) at para 29, it was clear from that passage that any obligation to undertake further inquiries would only exceptionally arise. The fact that inquiry would – as here- be likely to be inconclusive, militated against the duty. The documentation here did not fall into the category of one whose authenticity could be conclusively determined upon a simple inquiry.  If that were so, the law did not require more. In any event, it was argued that the consequence of any breach on the part of the Secretary of State of any duty to investigate did not compel the Secretary of State to accept the documents.  It only precluded her impugning them: per para 31 of PJ (Sri Lanka).  The starting point was the FTT decision.  The FTT had rejected the genuineness of the first UKCDP letter and the FTT determined that its contents had been insufficient to establish a basis for asylum.

[66]      Furthermore, it was always a question of whether any duty of inquiry was proportionate.  Here, the petitioner knew that in its decision the FTT had rejected the first UKCDP letter. That is the starting point for the Secretary of State.  The very same document had been rejected, with reasons, by the very body whose next decision the Secretary of State was trying to predict.  For that reason, it was not proportionate to investigate it. Therefore, this was not one of the exceptional cases where the Secretary of State was impelled to carry out investigations into the document proffered.  Further, unlike the material in the Singh case, which concerned an unimpeachable UNHRC document, the UKCDP letter was not from an unimpeachable source. Indeed, it had already been impeached by the FTT in its decision. In all these circumstances, no duty to investigate arose in this case.

[67]      Reference was made to the decision of the Inner House in the case of HF v SSHD [2014] CSIH 109 at para 25 where the court stated that there was no rule of law which imposed a general duty on the Secretary of State to investigate.  If there was no general duty to investigate, there was no error in refraining from undertaking any investigation.  If, contrary to Mr Pirie’s primary submission, there has been a material error, then the Secretary of State cannot challenge the veracity of the document (for the reasons explained at para 30 of PJ (Sri Lanka)).  However, Mr Pirie argued that two criticisms made by the FTT of the documentation submitted by the petitioner in support of her first asylum claim nonetheless subsisted: first, the content of the first UKCDP letter was inconsistent with the petitioner’s evidence (the FTT decision at paras 167 and 177), and, second, the FTT’s conclusion that the petitioner had no profile, because there was no evidence that the Chinese authorities were aware of her membership of the UKCDP or her activities.

[68]      Mr Dewar had criticised the observation at the end of paragraph 28 of the refusal letter, to the effect that the petitioner had purposefully published articles on the website of the UKCDP as a means of bolstering her claim.  In reply, it was said that what was decided in KS was beside the point. This was a factor that was relevant to assessing the credibility of the petitioner, and the Secretary of State permissibly had regard to that as a factor- and no more.

 

(ii)        Dr Sheehan’s report and the risk of the petitioner being questioned on her return.

[69]      The petitioner had argued that Dr Sheehan’s report  had not been considered at all, but that was not correct given the terms of para 56 and 57 of the refusal letter (set out at para [33], above).  In respect of the other criticisms advanced, the significance of the reference to Dr Sheehan’s report being unsigned, was that if it is a signed report then it records the author’s final views.  If it was unsigned, the Secretary of State could conclude it was not the final view of its author or that it was a third party report (the Slimani point).  In any event, the information in Dr Sheehan’s report was not supported by the later objective information, such as the COI.  If the petitioner was a voluntary returnee she would not be identified as a failed asylum seeker.  If there was a real risk posed to a voluntary returner, of being profiled, one would expect to find some support for that in the documents collated in the COI information. There was none.  In fact, the Secretary of State has taken into account Dr Sheehan’s report, as she stated in para 56 and 57 of the refusal letter. These parts from Dr Sheehan’s report were quoted and considered, and the Secretary of State has reached a view.  Dr Sheehan’s report was taken into account.  Anxious scrutiny has been demonstrated.

[70]      Esto there was any error of law, Mr Pirie argued that this was not material.  The conclusion in the Dr Sheehan’s report that the petitioner was at risk at the airport was not deserving of weight.  She herself had said that the evidence was “shaky”:  para 78 of Dr Sheehan’s report. While ultimately (after paras 78 to 85) Dr Sheehan mentioned a risk, she did not assess it on any scale. In total, her conclusions were speculative.  Even if paras 78 to 85 of Dr Sheehan’s report were taken to support the assessment of risk, the factors that put the subject of Dr Sheehan’s report at risk were not shared by the petitioner. By contrast with the circumstances of the subject of Dr Sheehan’s report, the petitioner was the married mother of two children born in wedlock.  The petitioner was able to avoid the risk by returning voluntarily.  The petitioner says that she does not want to return voluntarily but that is not an answer.  Under reference to AA v SSHD [2007] 1 WLR 3134, paras 84, 86 and 99, it was argued that someone who could return voluntarily in safety to the country of his nationality was not a refugee and that there was no duty of hospitality.  Accordingly, even if the petitioner was exposed to risk by reason of a forced return, the answer was that she could avail herself of a voluntary return with no risk.  If she declined a voluntary return, she could not rely on that choice for the purpose of saying she was a refugee.

[71]      Turning to the issue of whether the petitioner had a profile such that she would be questioned at the airport on her return, it was argued that the material did not demonstrate that she was at risk, even if she were questioned at the airport.  The objective information did not suggest that membership alone in the CDP created a risk of persecution.  The petitioner could tell the truth. The FTT had held that she had no relevant profile or, she could tell the authorities in China what she told the FTT, that she carried out no activities with the CDP.  Whatever the truth of her situation, she can tell the Chinese authorities that she was not a member of the UKCDP.  While the petitioner cannot be expected to lie in the sense of being required to live in her country of origin while denying an important aspect of her personality (such as sexuality or political views) per RT (Zimbabwe) SSHD [2013] 1 AC 152, the position was said to be different in respect of a brief period of questioning at an airport upon entry (per IW 2013 CSIH 90 at para 5).

 

            (iii)       Dr Sheehan’s evidence about the one child policy

[72]      The last ground of criticism had been levelled against the manner in which the Secretary of State had dealt with Dr Sheehan’s treatment of the one child policy in her report.

[73]      The refusal letter had quoted (at paragraphs 35 and 36) from the country guidance of AX at paragraphs 186 to 189 thereof. The conclusion in AX was that couples with foreign-born children were not generally at risk of return by reason of the one child policy. Accordingly the Secretary of State properly directed herself by having regard to the country guidance. Indeed, it would have been an error of law not to follow that guidance.

[74]      The Secretary of State was entitled to assume that what the petitioner wished to rely on was stated in her representative’s letter, namely in the cover letter. However, there was nothing in the cover letter requiring that the country guidance of AX be disapplied.  There can be no criticism, therefore of the Secretary of State for her applying the country guidance that she did. 

[75]      Further, it was incumbent upon the petitioner to say that the material is dissimilar. This might be tested by looking at the footnotes to Dr Sheehan’s report at paras 6, 24, 26, 30, 35, 37, 38, 44 and 76.  Nothing new was disclosed in them. Dr Sheehan’s report’s criticism of the decision of the UT in AX did not itself amount to new material, especially having regard to what was said in AX of Dr Sheehan’s evidence.    

[76]      The assertion that the petitioner might be at risk of sterilisation was noted, at para 33 of the refusal letter.  Even if that were a risk in Fujian province, the petitioner would not be at risk if she relocated.  Looking at Dr Sheehan’s report, in contrast to the subject of that report, the petitioner was not a single mother (as referred to at para 73 of Dr Sheehan’s report); there was no evidence that the petitioner’s family and social links were not up-to-date, personal connections being a way to secure a better job in China (in contrast to the position of the subject of Dr Sheehan’s report, at para 77, whose parents disapproved of her child and whose social links were out-of-date);  and any risk arising from an intermittent crackdown, could be avoided by internal relocation, which was the conclusion in AX at para 191(14).  The 2011 and 2012 reports referred to at para 26 of Dr Sheehan’s report appeared to reach the same conclusion as that just referred to in AX, so there was nothing “new” discernible on Dr Sheehan’s report on this issue.

[77]      The mere fact that there was reference to some material in Dr Sheehan’s report post-dating AX did not make that new material per se.  Even in terms of Dr Sheehan’s report there was no evidence of a China-wide crackdown or national campaign after 2010 against persons who breached the one child policy; there was no evidence that sterilisation campaigns amounted to a real risk and there was no evidence of a crackdown in the petitioner’s home province of Fujian.  And there was no evidence that, even if there were a crackdown in the petitioner’s home province that she could not avoid that risk by internal relocation. In the light of these matters, ever if there were an error of anxious scrutiny on the part of the Secretary of State, it was of no materiality.

[78]      It was not said that the Secretary of State had failed to take Dr Sheehan’s report into account.  She had stated in terms, in the refusal letter, that she had done so.  Anxious scrutiny means taking into account everything that might be favourable.  If a matter has been taken into account, there has been anxious scrutiny.  If that were so, it was beside the point that the outcome was not what the petitioner wanted.  If the Secretary of State says she has taken it into account, it is for the petitioner to demonstrate to the court that she had not done so. The court could not infer that Dr Sheehan’s report had not been taken into account. The only basis for the petitioner contending that it had not been taken into account was because of the absence of reference to particular paragraphs of Dr Sheehan’s report.  However, it was not necessary in legally adequate reasons that every point be mentioned. What the Secretary of State must address is the main points in which the petitioner relied.

[79]      Having regard to the cover letter and the argument it advanced in respect of the one child policy, it was clear that Dr Sheehan’s report was not the main support. The Secretary of State was not directed to any specific part of Dr Sheehan’s report and no attempt had been made in the cover letter to explain in what respect Dr Sheehan’s report was significant. 

The country guidance of AX applied unless there was good reason not to apply it.  In the cover letter no specific passage of Dr Sheehan’s report was cited in support of the one child policy ground and there was no suggestion that the country guidance case of AX be disapplied.  The Secretary of State had given no less prominence to Dr Sheehan’s report than the petitioner had done in the cover letter.

[80]      In relation to the late-emerging challenge to the adequacy of the Secretary of State’s reasons in the refusal letter, if that was how some of Mr Dewar’s submissions were to be understood, reference was made to the observations of Brooke LJ in R (Iran) v SSHD [2005] Imm AR 535, at paragraph 13, as setting out the standard required of adjudicators. They were not required to deal with every argument presented.  The court could not infer from the absence of express mention, therefore, that it had not been taken into account.  Here, though, Dr Sheehan’s report had been specifically referred to in the refusal letter at paragraphs 5, 54 and 57.  There was no error of law in the manner in which the Secretary of State dealt with ground 2 of the petitioner’s claim of asylum.

[81]      Esto there had been an error, then, following Ashiq, it was for this court to consider the materiality of that error. On the whole material, any error was immaterial. The outcome would be the same.  The country guidance of AX was to be preferred to Dr Sheehan’s report.

 

Petitioner’s reply

[82]      Shortly before the re-convened first hearing for its third day, the petitioner’s counsel helpfully produced a 12-page written reply (“the written reply”) to Mr Pirie’s arguments.

 

Petitioner’s reply to these challenges to Dr Sheehan’s report

 

[83]      Mr Dewar argued that Mr Pirie had subjected Dr Sheehan’s report to a more sustained consideration (and attack) than that contained in the refusal letter. This, he said, amounted to an ex post facto attempt to justify the decision in the refusal letter in a manner not foreshadowed in it.  Under reference to Lord Tyre’s observations in Absolam, Petitioner [2012] CSOH 109, he argued that the court should not accept the justifications of the refusal letter advanced by Mr Pirie.

[84]      Mr Dewar renewed his general challenge to the way in which the Secretary of State had dealt with Dr Sheehan’s report.  Anxious scrutiny required the Secretary of State to show that every factor that might tell in favour of an applicant had been – as he emphasised- properly taken into account.  Here, at best, the Secretary of State had paid only “lip service” to Dr Sheehan’s report.  It was not enough, he said, for the respondent to rely on Lord Justice Griffith’s observation that “if it be that the [adjudicator] has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, [the IAT] should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion” (emphasis added):  Eagile Trust Co Ltd v Piggot-Brown [1985] 3 All ER 119 and quoted by Brooke LJ (at para 31) in R(Iran) v SSHD [2005] Imm AR 535.  He repeated his submission that the Secretary of State had not engaged with Dr Sheehan’s report.  

 [85]     In relation to the country guidance issue, Mr Dewar did not argue that the petitioner’s case was outwith the country guidance in AX.  The argument Mr Dewar advanced in his written reply (at para 14) was that elements of AX were superseded by Dr Sheehan’s report.  He identified those features of Dr Sheehan’s report that post-dated AX. Furthermore, he contended that Dr Sheehan referred to additional and more recent information not contained in AX (a contention repeated at para 22 of the written reply).  In particular, he referred to the appendix to the written reply identifying a number of further paragraphs from Dr Sheehan’s report.  In the chapter of the written reply dealing with the country guidance issue, reference was made to R(Iran), cit supra. There followed several quotations to the effect that COI materials were limited and that Operational Guidance Notes had to be approached with caution, as they were in substance expressions of Home Office policy.

[86]      The appendix that was produced with the written reply detailed some 23 paragraphs from Dr Sheehan’s report.  It also provided some commentary on those paragraphs and the way in which, it was said, there were differences with AX. 

[87]      Against all of this material, it was said that the Secretary of State’s approach to Dr Sheehan’s report was superficial despite the length of the refusal letter.  In relation to ground 1, it was argued that the Secretary of State’s conclusion that the petitioner had “no visible profile” was untenable, and the fact that she had done certain things intentionally to achieve this, was beside the point.  No additional submission was made about the manner in which the Secretary of State dealt with ground 2.  In relation to ground 3, the general argument that the Secretary of State had failed to engage with Dr Sheehan’s report was repeated.  Reference was made to what was said to be new material and criticism of the Secretary of State’s conclusion that the petitioner had no visible profile (advanced under ground 1) was now prayed in aid of ground 4.

 

Discussion

Reliance on Dr Sheehan’s report in the further submissions

[88]      Much of the argument at the first hearing concerned the general challenge to the Secretary of State’s treatment of Dr Sheehan’s report in the refusal letter and, separately, for the purposes of the materiality question (on the hypothesis that there was a want of anxious scrutiny), whether it would be impermissible for the Secretary of State to have regard to Dr Sheehan’s report (the Slimani issue).  The general criticism of the refusal letter, and which was not related to how the Secretary of State dealt with the individual grounds for asylum,  was the asserted failure of the Secretary of State “to engage” with Dr Sheehan’s report, or her failure to give it “proper” consideration.  Closely allied to this was the criticism that the Secretary of State had relied on the conclusions in the country guidance case of AX in preference to Dr Sheehan’s report. The petitioner also challenged some specific aspects of the refusal letter in relation to grounds 1 and 4.  Before considering those, it is appropriate that I first deal with the petitioner’s general challenge. Whether or not the petitioner’s criticisms of the Secretary of State’s treatment of Dr Sheehan’s report are justified requires a consideration of the notice and country guidance issues.

            Did the petitioner put Dr Sheehan’s report in issue (the notice issue)?

[89]      The starting point is to consider the extent to which the petitioner relied on Dr Sheehan’s report in her further submissions.  The difficulty for the petitioner is that only a very few paragraphs from Dr Sheehan’s report were relied on in the cover letter. Leaving aside the ground of asylum not founded upon (bests interests of the children), only five paragraphs from Dr Sheehan’s report were cited, and for the purposes only of ground 4 of asylum (risk of return for failed asylum seeker).  The cover letter did not draw attention to or rely on any particular paragraphs within Dr Sheehan’s report in support of either of grounds 1 or 2.  In relation to ground 2, it was simply suggested that the findings in Dr Sheehan’s report, and which related to a woman who had given birth to an unauthorized child outwith wedlock, were also applicable to the petitioner.

[90]      However, in the oral and written submissions in these proceedings, many more paragraphs from Dr Sheehan’s report were founded upon in respect of all three grounds for asylum still insisted on.  The Secretary of State’s failure to take into account and engage with these paragraphs is said to demonstrate a want of anxious scrutiny by her.

[91]      It does not necessarily demonstrate a want of anxious scrutiny on the part of the Secretary of State if she does not expressly address in the refusal letter matters that were not fairly notified to her in the cover letter as being founded upon by the applicant.  Equally, the absence of the petitioner raising these matters in the cover letter is not necessarily determinative of the question of whether there has been anxious scrutiny on the part of the Secretary of State.  However, the extent to which the petitioner did (or did not) rely on Dr Sheehan’s report does inform the consideration of the refusal letter and the petitioner’s general criticism of it based on its treatment of Dr Sheehan’s report.

[92]      In my view, the petitioner’s general criticism of the refusal letter is unjustified.  I respectfully agree with the observations of Lord Justice Dyson in R(B and another) and Lord Doherty in AA, set out at paragraphs [38] and [64], respectively, above, that it is for the petitioner to put before the Secretary of State the material on which her claim rests.  Other than referring to the 5 paragraphs quoted in support of her ground 4 for asylum, the petitioner did not do so.  The Secretary of State must deal with the case as presented to her. However, in my view, she is not obliged to search through the material provided to find adminicles of potentially favourable material where that is not founded on by the applicant herself.  The Secretary of State cannot be faulted for not dealing with a case, or with specific material, which was not identified and not founded upon by the applicant.  Nonetheless, this, in short, is what the petitioner does in these proceedings: the repeated assertion is that the Secretary of State did not “engage with the issues raised in Dr Sheehan’s report” (per  para 12 of the written reply).

[93]      Further, in my view, where the applicant wishes to rely on particular material and to do so for the purpose of it being accepted in preference to relevant country guidance, it is  incumbent upon an applicant to make this abundantly clear in her further submissions. Again, the petitioner did not do so. In respect of Dr Sheehan’s report, most of the passages relied on at the first hearing in these proceedings were simply never identified or referred to in terms, or in substance, in the cover letter.  If the contention now is that Dr Sheehan’s report superseded one or more of the findings in the country guidance of AX, this was never stated in the cover letter.  The Secretary of State was not asked to depart from the country guidance in AX; nor was she asked to do so on the basis of Dr Sheehan’s report.

[94]      In these circumstance, there is in my view little substance in the general criticism that the Secretary of State relied on a country guidance case as “completely trumping” Dr Sheehan’s report (as it was put in para 12 of the written reply) when no argument was made to the Secretary of State as to why, on the basis of Dr Sheehan’s report, she should depart from the applicable country guidance.

[95]      In his written reply Mr Dewar accepted, in passing, the proposition that the decision-taker could only be expected to deal with points made in the cover letter of the further submissions (‘the notice issue’).  Having done so, however, Mr Dewar did not explain on what basis he could advance the general criticism of the refusal letter’s asserted failure to address matters that were simply not relied on by the petitioner in the cover letter.  To some extent, he endeavoured to elide this, by emphasising the duty of the Secretary of State to take “proper” account of Dr Sheehan’s report:  paras 5 and 19 of the written reply.

 [96]     In my view, the duty of anxious scrutiny placed upon the Secretary of State is in relation to the case made to her; not to a case that was not made to her but (on the material) might have been.  It suffices for this case to hold that the obligation of anxious scrutiny does not extend to exhaustive consideration of all material produced and whose particular significance is not identified in the cover letter, at least in relation to a third party report  (such as Dr Sheehan’s) and where the applicant’s claim is otherwise ostensibly within the findings of a country guidance case.  Accordingly, to the extent the petitioner’s challenge was predicated on the general criticism of the Secretary of State’s approach to Dr Sheehan’s report, this is not well-founded.  I turn to consider the petitioner’s specific criticisms of the refusal letter.

 

Ground 1
[97]      The petitioner had previously advanced fear of prosecution on the basis of her association with the UKCDP in her first claim for asylum and she had submitted certain materials to support that ground. T he Secretary of State had rejected this ground and the FTT had also found against her in her challenge to that refusal.

[98]      In the FTT decision consideration had been given to documentation said to support the petitioner’s involvement with the UKCDP.  However, the FTT had not accepted that documentation as credible.  It had also not found the petitioner to be credible.  As noted in paragraph [3] above, all of the petitioner’s challenges to the FTT decision have failed.

[99]      At paragraph 22 of the refusal letter it is stated that ‘specific regard’ has been had to the additional evidence submitted by the petitioner. The UKCDP letter and receipt are specifically mentioned.  Reference was then made to the case of Tanveer Ahmed (Pakistan) [2002] UKAIT 00439 for guidance on what weight to give to documents such as those produced by the petitioner. The import of the passage quoted was that in an asylum case it was for the individual claimant to show that a document on which he seeks to rely can be relied upon, and that the decision taker should consider whether a document was one on which reliance should properly be placed after looking at all of the evidence in the round.

[100]    It was explained, at paragraph 23 of the refusal letter, that this test has been applied to the UKCDP letter and receipt. Paragraph 23 of the refusal letter continues:

“23. […] It is duly noted that the evidence provided is similar to the evidence submitted by your client before Judge Bradshaw.  Regard has been had to the letter dated 21 November 2013 from Hua Huang, Secretary-general of UK Branch of China Democracy Party with enclosure of a receipt dated 20 November 2013.  It is noted that similar letters were place before Judge Bradshaw who found that your client had

‘… not demonstrated that [the] letter of 29^th March 2012 from the UK Branch of the China Democracy Party [was] an authentic letter.  On that basis the authenticity of the said letter of 5^th May 2012 [was] also subject to doubt and [Judge Bradshaw was] unable to accept this said letter of 5^th May 2012 either is a genuine letter or that it contain[ed] accurate information in respect of [your client]…’’’

 

[101]    Reference was then made (in paragraph 24 of the refusal letter) to the FTT decision: 

“24.           Judge Bradshaw did not find your client to be a credible witness and found that there were a number of discrepancies with documents presented by your client.  Judge Bradshaw previously concluded that the evidence submitted by your client could not be relied upon.  On this basis, the credibility of the evidence submitted is challenged and the evidence is not accepted as reliable”.

 

[102]    Accordingly, up to this point in the refusal letter, the Secretary of State has indicated that she has considered the additional materials submitted in support of this ground. She has regarded some of this material as similar to that considered by the FTT; she has noted that the FTT did not accept the credibility of the documentation it considered and it did not accept the credibility of the petitioner.  This led her to conclude that the evidence was not accepted as reliable.  The petitioner does not challenge this conclusion per se, but she argues the Secretary of State was under a duty to undertake further inquiries in relation to the UKCDP documentation.

 

Was there a duty to investigate?

[103]    It was accepted by both parties that there was no general duty on the Secretary of State to investigate or confirm the authenticity of documents submitted to her in support of asylum claims.  A duty may exceptionally arise, at least where a Convention right is at issue, although such a step may frequently not be feasible or justified or appropriate (per para 29 of PJ (Sri Lanka).  At the very least, for a duty potentially, and exceptionally, to arise, the document must be central to the applicant’s asylum claim and it must be the case that a simple process of inquiry will conclusively resolve its authenticity and reliability (per para 30 of PJ (Sri Lanka).  In practical terms, this may mean that such a document issues from an independent or unimpeachable source.

[104]    Mr Dewar submitted that the petitioner’s case was one of the “exceptional” cases where, it was said, such a duty arose.

[105]    However, I do not read the observations in PJ (Sri Lanka), quoted above at paras [22] to [23], as identifying any legal requirement that for any duty to inquire to arise that the applicant must show that her case is “exceptional”.  The observations in PJ (Sri Lanka) indicate that such a duty is likely to arise only exceptionally, that is infrequently.  I do not read PJ (Sri Lanka) as laying down “exceptionality” as a substantive legal test.

[106]    In order to bring herself within the circumstances in which such a duty may arise, an applicant must, in my view, show that the document whose authenticity or reliability is doubted is central to her ground of asylum.  Next it must be determined whether the authenticity or reliability of that document can be conclusively verified by a simple process of inquiry.  If these circumstances are present, a duty to inquire may arise.  Whether it in fact arises will of course depend on the whole circumstances of the case.  It may, for example, be relevant to consider whether it would be proportionate to make that inquiry.

[107]    However, other than to assert that the petitioner’s cases was “exceptional”, Mr Dewar did not seek to bring the petitioner’s case within the PJ (Sri Lanka) factors.  Having regard to the totality of the material submitted in respect of ground 1, set out at para [5] above, I do not accept the contention that the UKCDP documentation was “central” to her case rather than, say, the website materials produced by her.  In relation to the kind of inquiry that might be undertaken, Mr Dewar simply suggested that the Secretary of State could have contacted the author of the UKCDP letter.  This suggestion might be considered naïve.

[108]    In my view, in the whole circumstances of this case, no duty of inquiry as contended for arose.  The UKCDP documents have not been shown to be central to this ground of her asylum claim.  In any event, the kind of inquiry suggested by Mr Dewar is unlikely conclusively to verify the document in question.  In the particular circumstances of this case, once the Secretary of State has concluded that this document was similar to that considered and not accepted by the FTT in its decision, the Secretary of State cannot be faulted for adopting the approach of the FTT to that material.

[109]    One can put the matter another way: where, as here, the FTT has adjudicated adversely upon documentation the applicant has previously proffered, it is for the applicant to provide cogent material to persuade the Secretary of State not to adopt a like assessment to that made by the FTT, either by providing additional material that is substantially different from that impugned or by bolstering the authenticity and reliability of the source, if this is the same as the earlier documentation.  Given the adverse assessment made in the FTT decision, it was unlikely to suffice for the petitioner in support of this second application for asylum to submit documentation from the same source in substantially similar terms to that submitted, and rejected, in the course of her first asylum claim.  Even if, contrary to my assessment, the UKCDP letter was central to this ground of the petitioner’s asylum claim, these features would have militated against any potential duty to inquire from actually arising in the circumstances.

[110]    Given the petitioner’s failure to address these features affecting the earlier documentation, it would not be proportionate to require the Secretary of State to seek to authenticate such documentation where the starting point for her was that its reliability was impugned.

[111]    The other criticism relevant to ground 1 (but which was also referred to for ground 4), was the contention that it was not good enough for the Secretary of State to hold that the petitioner had no visible profile.  I am not persuaded by this submission.  It is for the petitioner to set out her stall, as it were.  It is for her to demonstrate that she is at risk.  It is not enough to contend, as here, that this conclusion was wrong. This is a determination of the factual position by the Secretary of State.  Unless it can be shown that this conclusion is perverse or one for which there is no factual basis, it is not a legally relevant ground of challenge, in effect, to express disagreement with the conclusion of the Secretary of State on a matter of this character.

[112]    It was for the petitioner to place material before the Secretary of State showing that her political activities were such that she would be of sufficient interest to the authorities to put her at risk.  On the whole material, and having regard to how the matter was dealt with in the refusal letter, the Secretary of State did not reach a perverse decision or one without any basis.  In respect of this ground, I am satisfied that there has been anxious scrutiny by the Secretary of State of the material the petitioner presented to her.

 

 

Ground 2

 

[113]    There was no separate challenge made to any part of the refusal decision dealing specifically with this ground for asylum.  Rather, this ground was subsumed into the petitioner’s general challenge to Dr Sheehan’s report.  I have already determined that matter against the petitioner.

 

Ground 4

[114]    The refusal letter dealt with this ground at length (from paragraphs 33 to 52.)  After noting that breaches of the one child policy are commonly dealt with by payment of a fine, and that a requirement to pay a fine does not breach article 3 of the European Convention of Human Rights (“ECHR”), there was extensive reference to the case of AX (family planning scheme) China Country Guidance  [2012] UKUT 00097 (IAC).  AX is a country guidance case.  It was concluded in AX that couples who return to China with foreign born children were not at any real risk of return (para 37);  that a fine might be payable but that was not a breach of article 3 of the ECHR (para 37);  and that internal relocation would prevent any real risk of forced sterilisation during periods of crackdown to enforce the one child policy.

[115]    In large measure, the criticisms advanced in relation to ground 4 repeated the arguments already considered. These included the general criticism of the asserted failure to engage with Dr Sheehan’s report and the criticism of the Secretary of State’s finding (in the context of ground 1) that the petitioner had no visible profile in China by reason of her political activities.  In his reply, Mr Dewar also relied on this to illustrate why the petitioner might be at risk of questioning at the airport on her return.  However, Mr Dewar did not address the matters relied on by Mr Pirie in meeting the specific criticism of the Secretary of State’s determination of ground 4.  He did not, for example, respond to the argument about a voluntary return being open to the petitioner but which, by contrast, was not open to the subject of Dr Sheehan’s report.  He did not take issue with the conclusions in the refusal letter regarding possible internal relocation as a means of avoiding any risk the petitioner might face.

[116]    The starting point is that the petitioner’s case fell within the country guidance of AX. While there was reference in the cover letter to Dr Sheehan’s report, I accept Mr Pirie’s submissions about the failure of the cover letter properly to put this in issue. The Secretary of State was not asked to disapply the relevant country guidance of AX.  More particularly, she was not asked to do so on the basis of Dr Sheehan’s report.  The fact that there are references in Dr Sheehan’s report that post-dated the case of AX, a matter Mr Dewar endeavoured to illustrate in his written and oral reply at the continued first hearing, did not invite a conclusion that these were of any materiality.  In any event, other than to identify matters he said were new (simply in the sense that they post-dated AX), Mr Dewar did not argue that this made any difference to the conclusions in AX.  He did not point to any conclusion in AX that was said to have been superseded by Dr Sheehan’s report.

[117]    Prima facie Dr Sheehan’s report was a third party report. The circumstances of its subject were materially different from those of the petitioner.  In any event, the cover letter did not relate Dr Sheehan’s report to the petitioner’s circumstances.  Looking at the extent to which Dr Sheehan’s report was invoked in the cover letter, and the corresponding treatment of it in the refusal letter, Mr Pirie is correct that the Secretary of State gave Dr Sheehan’s report no less prominence than had been done in the cover letter.  Accordingly, while it may well be the case that the Secretary of State dealt with Dr Sheehan’s report in relatively short compass, given the foregoing, I do not find that this resulted in a want of anxious scrutiny on her part in respect of Dr Sheehan’s report.

 

Materiality

[118]    In the light of my decision, I do not require to consider the issue of the materiality of any error.  Had I been required to do so, however, I would not have accepted Mr Dewar’s submission (under reference to para [12] of Khan v the Advocate General for Scotland [2015] CSIH 29, including its quotation from para [46] pf Ganesbalan v SSHD, set out at para 6 of the written reply), that I had insufficient information to form a view on the materiality of any want of anxious scrutiny.  It is in that context that the Slimani issue would require to be addressed.

[119]    In relation to the Slimani issue, for completeness I should record that I did not regard this as part of the explicit reasoning process of the Secretary of State in the refusal letter and for that reason it was not necessary to determine this issue in this case. The Slimani issue would only have had potential relevance, therefore, if I had found there had been a want of anxious scrutiny and if the court were then considering the materiality of any such failure. In that exercise, it might well have been necessary to consider whether Mr Pirie’s submissions on that matter were well-founded. At that stage and for that purpose, Mr Dewar’s complaint that this involved a degree of ex post facto rationalisation would be of diminishing relevance.  In any event, it is not necessary for the determination of the matters before me to express any view on this issue.

 

            Decision

[120]      In the light of the whole material before her, and as presented to her, I find that there was no error on the part of the Secretary of State in concluding that the petitioner's further submissions did not amount to a fresh claim.  Her decision was reasoned and satisfied the requirement of anxious scrutiny.  I find that her decision as recorded in the refusal letter was lawful.  It follows that this petition is refused.