Falun Gong, Country Guidance and HJ (Iran)

LW (China) v Secretary of State for the Home Department [2012] EWCA Civ 519 (24 April 2012) 

In this case the Court of Appeal (Black, Mummery and Moore Bick LJJ) found that a Chinese asylum seeker’s discreet involvement in Falun Gong did not put him at risk upon his return to China. The Appellant (A) arrived in the UK in 1999 and claimed asylum in 2008. Both the First Tier Tribunal and the Upper Tribunal (UT) dismissed A’s appeal. The Court of Appeal held that the UT had correctly considered the Country of Origin Information Report (COIR) which did not represent a change from the country guidance concerning the Falun Gong in LL (Falun Gong – Convention Reason – Risk) China CG [2005] UKIAT 00122.

Grounds of Appeal

Sullivan LJ granted permission because he found that important principles arose as to whether (1) the country guidance that practitioners of Falun Gong were not normally at risk from Chinese authorities was consistent with the more recent COIR which said that the Chinese state offered sizeable rewards to informants who told on Falun Gong adherents; and (2) A’s attendance at Falun Gong demonstrations as a spectator in China would be discreet and if A was deterred from spectating because of the authorities’ attitude then was this consistent with HJ (Iran) [2010] UKSC 31.

Upper Tribunal

A’s claim that he publicly practised Falun Gong for which he was detained by the Chinese authorities was not accepted by the UT which felt that A had not revealed the real reason for his arrival in the UK. In the UT’s view, A’s case turned on what he would do upon return to China and “that depended on the credibility of his core account.”

Moreover, A’s association with Falun Gong practitioners demonstrating exercise techniques was limited to an observer status. Hence his connection with the movement was discreet for which he would not be harmed and the possibility of his rights being breached did not fall within the meaning of HJ because during his time in the UK he only privately practised Falun Gong. For the UT, the January 2010 COIR was not a departure from the country guidance case of LL.

The Appellant’s Case

From A’s perspective – prior to finding that he was not at risk – the UT should have investigated the individual circumstances of his case which were that he would be returned to seclusion in China. Other aspects of his case were that his return would be risky as he left China illegally and was also in breach of the Chinese one child policy because he had three children in the UK with a Chinese woman. This added to the seclusion element of his case. A’s use or possession of internet or other material in connection with Falun Gong was seen as a contributory factor in assessing risk. A’s complaint was that the UT identified the HJ principle but failed to apply it correctly in its decision. A’s case – summed up by Black LJ at para 12 – was that it would be

reasonably likely that he would attend and watch demonstrations of Falun Gong exercises in China as he had in the United Kingdom (and as HJ makes clear he must be free to continue to do) and would have had a well-founded fear of persecution as a result.

The Secretary of State for the Home Department’s Case

The SSHD accepted that LL made no mention of rewards for informing on Falun Gong members but instead drew attention to R (Madan) [2007] EWCA Civ 770 and argued that judges should “tread carefully before finding that a country guidance case is unreliable just on the basis of one or two subsequent reports.” The fresh evidence was therefore insufficient to have the material bearing which was required to successfully challenge a country guidance case.

The SSHD sought shelter under the argument that millions of Chinese, most of whom were safe, practised Falun Gong in private. Moreover, the approach in LL allowed the UT to consider the individual circumstances of A’s case but he was/had been unable to demonstrate that he would put at risk upon his return to China. MA (Somalia) [2010] UKSC 49 was relied upon to make the point that the UT had probably got it right and thus caution ought to be exercised in departing from its findings. On the HJ point it was argued that A did not practise Falun Gong privately owing to fear. Rather, he did so for his own reasons. In relation to spectating at demonstrations, the point was academic because Falun Gong had been driven underground and was unable to stage demonstrations in China: even if there were such demonstrations there was no evidence that spectators would be included as adherents of the movement.

The Court of Appeal

In sizing up the arguments, Black LJ compared the 2005 country information – which was cited by the AIT in LL – with the 2010 version. Her Ladyship observed at para 25 that both the 2010 and 2011 versions of the COIR had new sections entitled “Possibility of practising in private”. The section contained the views of the United States State Department, the Canadian Immigration and Refugee Board, the Falun Data Information Centre and the Guardian newspaper: everyone agreed that “the suppression of Falun Gong in Mainland escalated sharply in 2008” (Black LJ, para 27).

Both the 2010 and 2011 COIRs stated that although some Falun Gong adherents were able to practise their religion privately, concealing their behaviour from others such as neighbours and relatives remained difficult. Moreover, Black LJ noted that the Chinese state’s “relentless efforts to transform every single … practitioner in China [by using reeducation through labour camps]” as set out in both the 2010 and 2011 COIR reports were taken into consideration by the UT: her Ladyship, at para 28, solved “the puzzle” by observing that the UT had not only correctly considered the 2010 COIR, but also the 2011 version which – although unavailable at the time of the hearing – was before the UT when it wrote the determination.

Her Ladyship explained that

32. There was different/additional material in the 2010 COIR, including the allusion to the difficulty of concealing beliefs and private practice from neighbours and relatives, the information about rewards for information, and reference to the escalation of the suppression of the practice. But a COIR is a composite of material from a number of sources, not all of it necessarily consistent, and the Upper Tribunal had to take an overall view of it and to consider whether, taken as a whole, it was accommodated by the guidance in LL.

At para 33 the Court emphasised that LL permitted “the consideration of the individual circumstances in a particular case.” Moreover, para 35 of LL rightly indicated that “normally” someone who discreetly practises Falun Gong in private was not a real risk of persecution. Equally, LL recognised that there may be individual cases, with particular features, in which people would be at risk. Finally, para 38 of LL envisaged the situation whereby someone connected with Falun Gong received the adverse attention of the Chinese authorities: thus, the existence of “special factors” in cases was expressly recognised.

Black LJ considered the guidance in LL to be flexible enough for the UT to have made the decision which it did in A’s case because his involvement in Falun Gong had “always been discreet” and would not receive adverse attention or treatment from the authorities. At para 34 her Ladyship observed that the fact that A had exceeded the Chinese one child policy was irrelevant to his case because “children born abroad are not counted”.

Dismissing the appeal on both grounds the Court noted that whilst HJ theoretically demanded that A should not be expected to give up spectating at demonstrations, there was no evidence of public Falun Gong demonstrations in China of the type A attended in the UK. The Court also accepted the SSHD’s submission “that there is no evidence that were there to be such a demonstration, presence as a spectator only would be sufficient to give rise to a risk.” (Emphasis supplied.)

New Chinese Cases

China enthusiasts will note that other significant Chinese cases that have recently become available are the mammoth country guidance case of AX (family planning scheme) China CG [2012] UKUT 97 (IAC) – with Mark Symes – and the very interesting human trafficking case – with Eric Fripp and Althea Radford – of R (Y) v SSHD [2012] EWHC 1075 (Admin) which David Rhys Jones has blogged about here.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 3, Asylum, Cases, China, Court of Appeal, Tribunals and tagged , , , , . Bookmark the permalink.

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