LW (China) v Secretary of State for the Home Department

The appellant is a Chinese national. He arrived in this country in 1999 and has since married a Chinese woman with whom he has had three children. He applied unsuccessfully for asylum in 2008 on the basis that he was at risk because he practises Falun Gong.

His appeal to the First Tier Tribunal was dismissed in April 2010. He was granted permission to appeal to the Upper Tribunal which heard the appeal in October 2010. The Immigration Judge’s determination was set aside and the Upper Tribunal decided the matter afresh in a determination dated 9 March 2011 dismissing the appeal on all grounds. It is against this determination that the appellant appeals, with permission from Sullivan LJ who limited the scope of the grounds to those which concerned what he considered to be two important points of principle which he set out as follows:

“(a)

Is the current Country Guidance that those who practise Falun Gong (FLG) in private will not normally be at real risk from the Chinese Authorities consistent with the more recent Country of Origin Report, paragraph 2.17 of which states that sizeable rewards are offered by officials to those who provide information leading to the arrest of FLG practitioners?

(b)

If the appellant attended FLG demonstrations as a spectator (as he has done in the UK, see para 50 of the Tribunal’s Determination) in China, would his practice of FLG be private or ‘Discreet’; and if he was deterred from doing so by reason of the attitude of the Chinese Authorities to FLG would this be consistent with HJ (Iran)?”

The Upper Tribunal considered the most up to date Country Guidance case concerning Falun Gong, LL (Falun Gong – Convention Reason – Risk) China CG [2005] UKIAT 00122 in the light of passages in the January 2010 Country of Origin Information Report (COIR) to which its attention had been drawn but did not consider that there had been any material change since LL. It said:

“37.

We considered the passages in the respondent’s Country of Origin Report evidence to which our attention was drawn, in order to assess whether they represented a change from the evidence summarised in LL. We do not consider that they do. At paragraph 21.20, the United States-based Falun Dafa Information Centre still estimates the number of Falun Gong practitioners in China as being in the tens of millions, with Falun Gong continuing in popularity and even growing in China.”

It considered that (§41):

“The present appeal ….turned on the Tribunal’s assessment of what this appellant will actually do on return, and that depended on the credibility of his core account.”

The Upper Tribunal made various findings of fact against which no appeal has been permitted and which therefore stand for our purposes. It rejected the appellant’s account of having been detained by the authorities in China in connection with his own or his work colleagues’ practice of Falun Gong and of having been sought by the authorities since his departure from China. It did not consider that it had been given the true reason why the appellant came to the United Kingdom. It did not accept that he practised Falun Gong in public in China or in this country and found that his practice “has always been discreet, in China and in the United Kingdom”. It found that although he could practise in public in the United Kingdom, he does not do so, and that the photographs that he produced of himself in this country with Falun Gong practitioners demonstrating exercises showed him simply as a spectator. It concluded (§50):

“We do not consider that his reasons for practising privately here or in China arise from his fear of the Chinese authorities, and, on the evidence before us, although if he were to come to attention the risk of ill-treatment is significant, the evidence is that millions of Chinese practise discreetly and do not come to harm. We do not consider, even applying HJ (Iran), that the appellant’s international protection rights would be breached by his continuing to do what we have found that he does in the United Kingdom, which is to practise his Falun Gong in private.”

The appellant argued that the Upper Tribunal had failed to recognise that LL had been overtaken by the information available in the January 2010 COIR and, having concluded that the appellant would practise Falun Gong privately in China, had wrongly taken that as sufficient to establish that he would not be at risk. It should have recognised, on the basis of the 2010 COIR, that it was necessary to enquire into the particular circumstances of the individual concerned before concluding that private practice would not give rise to risk and should have gone on to conduct such an enquiry in relation to the appellant. The domestic circumstances in which he would live in China would be material; living in a home with three children coming in and out was different from living in seclusion. It would also be relevant to consider what materials he would use for his practice of Falun Gong and whether possessing books or using Falun Gong materials on the internet may be risky. Other features which, taken cumulatively, might heighten the risk for the appellant were the fact that he would be returning after having left illegally and would therefore be stopped and asked questions, and his having had three children when the policy was for a limit of one child.

The appellant focussed particular attention on §21.17 of the 2010 Report. That paragraph said:

“21.17

The US Commission on International Religious Freedom (USCIRF) stated in its Annual Report 2009, published in May 2009:

“The Chinese government continues to maintain a harsh campaign against adherents of the Falun Gong spiritual movement, which it considers an ‘evil cult’ and has banned since 1999. Police continued to detain current and former Falun Gong practitioners and to place them in re-education through labor camps (RTL) without trial or in mental health institutions. There is no credible information on just how many Falun Gong practitioners were imprisoned over the past decade, but some international observers claim that they may be as many as half of the total number of the 250,000 Chinese detained in RTL camps. Provincial officials reportedly offer sizable rewards to anyone who provides information leading to the arrest of a Falun Gong practitioner. In the year before the Olympic Games, police waged a concerted campaign to harass and detain known Falun Gong practitioners and brutally suppress their activity, an estimated 8,037 Falun Gong were detained between December 2007 and August 2008… Imprisoned Falun Gong reportedly are subject to mistreatment and torture. The UN Special Rapporteur on Torture reported that Falun Gong practitioners make up two-thirds of the alleged victims of torture.” [my emphasis]

The appellant argued that the offering of financial rewards increased the risk of someone being brought to the attention of the authorities. It was not a feature which was reported prior to LL and the Upper Tribunal should have recognised this, whereas in fact it made no reference to §21.17 at all. It only referred to §21.20 and appeared to draw conclusions about risk from the sheer numbers of Falun Gong practitioners which was not the point.

The appellant’s argument was not confined to §21.17. Ms Gore on his behalf argued that the Upper Tribunal should have had regard more generally to the section on Falun Gong in the 2010 COIR and particularly to the passage headed “Possibility of practising in private” which demonstrates the potential risks of even private Falun Gong practice. The Upper Tribunal recorded at §32 that the appellant relied on §§ 21.01 – 21.39 of the COIR, and (at §34) that it had been asked to consider the current COIR “in particular section 21.14-21.39 (which dealt with Falun Gong)”.

Ms Gore submitted to us that in the light of the newer material, the question that the Upper Tribunal should ultimately have been asking itself was not whether the appellant’s practice of Falun Gong was private or public but whether it was reasonably likely that he would come to the attention of the authorities in respect of it.

Reliance was placed on HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31. We were taken to §35 of Lord Hope’s speech in which he sets out “the test that should be adopted by the fact-finding tribunals in this country” in a case such as that which they were considering, that is of a homosexual person claiming asylum on the basis of a fear of persecution based on membership of that particular social group. He there pointed out that the inquiry is individual and fact-specific but that it includes five stages. There is no need for me to rehearse the detail here but the stages commence with a consideration of “whether the applicant is indeed gay”, then turn to an examination of what the applicant’s situation will be on return, considering how he will conduct himself if returned and how others will react to what he does. In this connection, Lord Hope said that “he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it” although “the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test”. If it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, it is necessary to consider why he would do so and if the reason is fear of persecution, it is necessary to consider whether that fear is well-founded.

The appellant argued that had the Upper Tribunal applied the principles from HJ correctly, they would have concluded that it was 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 appellant’s argument was that the Tribunal had identified the HJ principle correctly in its §38 but failed to apply it in its decision.

The respondent accepted that the material before the tribunal in LL did not contain any reference to rewards being offered but did not accept that that meant that LL was out of date or unreliable for that reason or any other.

Mr Blundell who appeared on the respondent’s behalf invited our attention to the nature of the Country Guidance system as explained in R (Madan) v SSHD [2007] EWCA Civ 770, [2007] 1 WLR 2891 by Buxton LJ who said, giving the judgment of the court:

“Country guidance cases have a special status, failure to attend properly to them being recognised by this court as an error of law even though country guidance cases deal only with fact: see R (Iran) v SSHD [2005] Imm AR 535, para 27. They have that special status because they are produced by a specialist court, after what at least should be a review of all the available material. And that in particular involves a judicial input from a background of experience, not least experience in assessing evidence about country conditions, that is not available to such judges as sit in the Administrative Court and in this court. A judge hearing a judicial review application will therefore wish to tread carefully before finding that a country guidance case is unreliable just on the basis of one or two subsequent reports.”

Mr Blundell put the 2010 COIR into the category of “one or two subsequent reports” and argued that not only did it not automatically render the extant country guidance unreliable, it did not even run counter to it and was in fact similar to the evidence considered in LL. It did not amount, he said, to “fresh evidence having a material bearing on the findings of fact which comprise existing guidance” as would be required for a challenge to a country guidance case (see Ariaya v SSHD [2006] EWCA Civ 48 @ §51, citing MY (Country Guidance cases – no fresh evidence) Eritrea [2005] UKIAT 00158, the Immigration and Asylum Chambers of the First Tier Tribunal and the Upper Tribunal Practice Direction of 10 February 2010 §12 and, I add, the Upper Tribunal Immigration and Asylum Chamber Guidance Note 2011 No 2 §11).

He submitted that the Upper Tribunal looked at the new material, considered it properly, and formed a view of it that it was entitled to form. It had to take a broad overall view and was entitled to conclude that there continues to be a distinction between public and private practice of Falun Gong. He argued that there is an absence of material demonstrating a risk to those practising in private, including nothing to demonstrate that such door-to-door searches as take place are random as opposed to carried out on information, and that the Tribunal rightly had regard to the existence of many millions of practitioners in China, most of whom are perfectly safe.

The respondent submitted that the approach set out in LL was sufficiently broad to permit a tribunal to take account of the circumstances of a particular case and that if the appellant argued that his private practice of Falun Gong put him at risk, it was for him to show that it would come to the attention of the authorities or of someone who would report him. He had not done that and there was not, in fact, anything about his circumstances which could demonstrate that sort of risk.

Mr Blundell reminded us of the proper approach for the Court of Appeal to take in appeals such as this from specialist tribunals by reference to MA (Somalia) v SSHD [2010] UKSC 49 at §§43 and 45. The “ordinary courts” should approach appeals from expert tribunals charged with administering a complex area of law in challenging circumstances with an appropriate degree of caution and an appreciation that in understanding and applying the law in their specialised field the Tribunal will probably have got it right. He invited us to accept that this sort of caution is appropriate where the Tribunal has reviewed a Country Guidance case in the light of a new COIR and concluded that the guidance remains appropriate.

The respondent submitted that HJ is not material here because the Tribunal found that the appellant would practise privately for his own reasons, not for fear. As far as his attendance at demonstrations is concerned, that is firstly academic because the movement has been driven underground and there is no evidence that there are such demonstrations in China. However, secondly, if there were to be such demonstrations, they would be watched by non-practitioners as well as practitioners and it would not be possible for the authorities to equate spectating with adherence to the movement. There is no evidence that mere spectators at events are targeted by the authorities.

I turn first to look at LL and the Country of Origin Information reports in more detail.

In LL, the AIT considered a variety of material about Falun Gong including the CIPU report of April 2005 (a forerunner of the January 2010 COIR). The 2005 report was not produced to us at the hearing as it should have been so that we could compare the handling of the issue of Falun Gong in that report and in the 2010 report. However, I have since got it and also what I think is the most recent report (that of 24 August 2011).

The 2005 report included six paragraphs on the “Treatment of Falun Gong Practitioners” which read as follows:

“6.122

As reported by the Falun Gong website clearwisdom.net, accessed on 23 January 2005, “there are at least 6,000 Falun Gong practitioners who have been illegally sentenced to prison. Over 100,000 practitioners have been sent to labour camp. Large groups of Falun Gong practitioners have been forcibly sent to local brainwashing classes, where they have been subjected to both physical and mental torture.

6.123

According to the Falun Gong website’s Clear Harmony: Falun Gong in Europe and FalunInfo.Net, both accessed on 24 January 2005, practitioners are subjected to prolonged beatings, scalding with hot irons and long -term sleep deprivation. Other forms of abuse can include being force-fed human faeces or being made to drink isopropyl alcohol (rubbing alcohol used to disinfect wounds). In addition to this practitioners have been made to stand or squat in uncomfortable “stress positions”, have had irritants applied to their skin and have been sexually abused by guards or other prisoners acting on their instructions.

6.124

On 29 December 2004 Reporters Without Borders condemned the arrest of 11 Falun Gong practitioners for using the Internet to publish photographs of the torture some of them had undergone in prison. This report stated, “Reporters Without Borders calculates that at least 30 people are currently detained for posting or viewing documents on the Internet that support the Falun Gong or criticise the systematic torture its followers undergo in Chinese prisons.

6.125

On 22 January 2004, the same source reported that five “members” of Falun Gong were sentenced to between five and 14 years imprisonment on 19 February 2004 for posting information on the Internet about their mistreatment while in detention.

6.126

According to AI in their January 2004 report, Controls tighten as Internet activism grows, of the 54 people detained and sentenced for Internet activism, 29 were Falun Gong practitioners/sympathisers (figures accurate up to 7 January 2004).

6.127

As reported by the Canadian IRB in a report dated 25 October 2001, the Chinese authorities had confiscated 1.55 million copies of Falun Gong material by the end of July 1999. The IRB also reported the arrest of a number of people for illegally printing, selling and publishing Falun Gong material. The latest of these arrests was in November 2000. Sentences ranged from six to ten year’s imprisonment.”

The AIT reproduced all but paragraphs 6.123 and 6.125 in its decision before concluding:

“35.

We view with caution the respective assertions by both the Chinese authorities and Falun Gong sources, both of whom have their own agendas. However our first conclusion as to risk, from the objective evidence as a whole, is that, absent special factors, there will not normally be any risk sufficient to amount to “real risk” from the Chinese authorities for a person who practises Falun Gong in private and with discretion. On any assessment the number of Falun Gong practitioners in China is very large indeed. The figures quoted range from 2 million to some 100 million. So far as can be gathered from the evidence before us, the number of people who have faced detention or re-education by the Chinese authorities as a consequence of Falun Gong activity, whilst large in absolute terms, is a relatively small proportion of the overall number of practitioners. This indicates that the large majority of those who practice Falun Gong in China in privacy and with discretion, do not experience material problems with the authorities.

36.

Our second conclusion is that the essential benefit of Falun Gong to an individual comes from the practice of meditation and Qi Gong exercises, which can be carried out alone or with a few friends in private. It appears to have some spiritual dimension. There does not appear however to be any duty or pressure on a Falun Gong practitioner to proselytise, even though some plainly do. We therefore endorse the view expressed by the Court of Appeal in paragraph 33 of their judgment in this case that “We are not prepared to accept that authoritarian pressure to cease the practice of Falun Gong in public would involve the renunciation of core human rights entitlements”.

37.

Our third conclusion is that risk of material ill-treatment escalates significantly when a practitioner does engage in activities that are reasonably likely to bring him to the notice of the authorities. Such activities include the public practice of Falun Gong exercises, recruitment of new members, and dissemination of Falun Gong information. The risk of escalating ill-treatment also increases when a person who has previously come to the adverse attention of the authorities and has been detained/re-educated and warned against continuing Falun Gong activity, ignores that warning.

38.

Our fourth conclusion, which follows from the previous paragraph, is that, absent special factors and credible motivation, a person displaying limited knowledge of Falun Gong or limited involvement with it, is unlikely to be committed to undertaking activities on return to China that would bring him to the adverse attention of the authorities and materially increase his risk.” [emphasis in the original]

For present purposes, perhaps the most important conclusion there expressed is the first, that is that “absent special factors, there will not normally be any risk sufficient to amount to ‘real risk’ from the Chinese authorities for a person who practises Falun Gong in private and with discretion”. Does that conclusion remain valid, in the form stated, in the light of more recent information about the approach to Falun Gong in China?

Both the January 2010 report which featured during the appeal hearing and the August 2011 report deal with Falun Gong more fully than the 2005 report upon which LL was based. In particular, the section in the more recent reports headed “Possibility of practising in private” was not present at all in the 2005 report. In the January 2010 report, this section read as follows:

“Possibility of practising in private

21.29

As noted by the USSD Report 2008:

“Public Falun Gong activity in the country remained negligible, and practitioners based abroad reported that the government’s crackdown against the group continued… Even practitioners who had not protested or made other public demonstrations of belief reportedly were forced to attend anti-Falun Gong classes or were sent directly to RTL [reeducation-through-labour] camps. These tactics reportedly resulted in large numbers of practitioners signing pledges to renounce the movement

21.30

As reported by the Canadian Immigration and Refugee Board (IRB) in an extended response on the situation of Falun Gong practitioners and their treatment by state authorities (2001–2005), Gail Rachlin from the Falun Dafa Information Centre (FIC) told the IRB that since 2003 many practitioners had given up because of the fear of persecution. However, according to Rachlin,

“…many have subsequently resumed their involvement in Falun Gong and many others have newly joined the practice.”

21.31

The Canadian IRB in the same response stated, “Practising Falun Gong in the privacy of one’s own home may be possible, but according to Human Rights Watch, it could become ‘dangerous’ if officials or the police became aware of it.” Citing Maria Hsia Chang writing in her book, The End of Days, the Canadian IRB stated that “[m]any followers still risk arrest and beatings to perform the exercises, but they do them in their homes instead of public parks.” Citing Gail Rachlin, the IRB also noted that “while it is possible to practice in private, concealing one’s beliefs and daily practice from relatives and neighbours is difficult.”

21.32

In its 2008 Annual Report on Falun Gong, dated March 2009, the Falun Dafa Information Centre stated:

“Thousands of adherents were detained around the country throughout 2008. Most were arrested on the basis of their being known to the authorities as Falun Gong adherents, even if this identity consisted of studying Falun Gong tenets and practicing its meditation exercises in the privacy of their homes. In many cases, adherents were arrested for possessing Falun Gong books and related materials, often after door-to-door searches by security agents. Once detained, the pattern of subjecting adherents to severe torture—including sexual abuse and shocks with electric batons—to force them to disavow their faith remained commonplace.”

21.33

As reported by The Guardian on 18 July 2009:

“Five young men in plain clothes bundled the elderly couple into an unmarked car. The crime of Qiao Yongfang and his wife, Yan Dongfei, both aged 60 and residents of Huhot City, in Inner Mongolia, was to be practitioners of the banned Falun Gong religion, which has tens of millions of followers in China. Ten years after the prohibition on Falun Gong was ordered by China's former leader Jiang Zemin, commencing a brutal crackdown on its adherents, believers such as Qiao's parents are still being pursued, despite international protests. The only change is that the persecution is now more secretive…‘They took my parents after dark. They don't want people to know. The persecution is almost underground,’ said the 35-year old... ‘I got a call from one of the members of my family in China. They had tried to call my parents' phone and a strange man had answered and demanded to know who was calling. They do that to find other members of Falun Gong. My uncle then went to my parents' house. The building attendant didn't want to talk but finally he said what happened. But even then the local police would not admit they had been arrested. They said they didn't know. In the end we heard it through a friend in the police who told us they had been taken to detention centre number one. We are not allowed to talk to them. When we rang the National Security Brigades they said my parents were not co-operating. They have not written a letter denouncing Falun Gong or given names of other practitioners. My extended family at first refused to believe what was going on. They said the persecution of the Falun Gong was over. But it's happening every day.”

21.34

On 23 April 2009 Reuters reported, “There are occasional signs of low-key activity by practitioners in mainland China. A woman passing out Falun Gong leaflets in Japan in July [2008] said her family practises quietly at home in Shandong without trouble. Though the public campaigns have faded, the Chinese government's hostility has not changed… a man [was] detained by police this month for distributing Falun Gong pamphlets in a suburb east of Beijing.”

It can be seen that this contains material (for example the final sentence of §21.31) which shows the potential difficulties even for a private practitioner of Falun Gong.

I will not reproduce here other passages about Falun Gong from the 2010 COIR but it may be worthy of particular note that in §21.20, there is reference to the 2008 Annual Report from the US-based Falun Dafa Information Centre which said that the suppression of Falun Gong in mainland China escalated sharply in 2008. In the November 2010 COIR, §21.20 quotes from the 2010 Annual Report from the same Information Centre to the effect that in 2009 the lawlessness and brutality of the Party’s treatment of Falun Gong practitioners “remained staggering” and there is reference to the authorities’ “relentless efforts to identify and ‘transform’ every single Falun Gong practitioner in China”. This passage also appears in the August 2011 COIR at §21.24.

Recourse to these various COIR I think furnishes the answer to the puzzle of why the Upper Tribunal in this case referred at its §37 to §21.20 of the COIR quoting information which is not contained in the January 2010 version of it. I have already referred to the contents of §21.20 of the November 2010 version of the COIR; also included in the extract from the report there quoted is the information which the Tribunal cited about the tens of millions of practitioners and the continued popularity of Falun Gong. I do not think, therefore, that the respondent’s counsel was right when he submitted that the reference to §21.20 was a misprint for §21.14. It seems to me that what happened was that the Tribunal, preparing its decision which was finalised in March 2011, had before it the more up to date version of the COIR. Its reference to §21.20 shows that it must have been aware not only of the continuing popularity of Falun Gong and its many adherents but also of the information to which I have referred about brutality and about the relentless efforts of the authorities.

There is no doubt that the Upper Tribunal’s conclusion was that LL remained valid despite the newer material and that it applied the LL approach in determining the appellant’s case. Was it wrong to do so?

It cannot realistically be suggested that the Upper Tribunal failed to look at the COIR that it was invited to consider. It is not only that it records the appellant’s reliance on the material specifically and records (in §37) its own consideration of the passages to which its attention was drawn in order to assess whether they represented a change from the evidence summarised in LL. The specific reference in §37 to the contents of §21.20 confirms that the material has been digested.

The only tenable argument for the appellant is therefore that the Upper Tribunal was wrong to conclude that the evidence summarised in LL had not changed and should have revised the approach so as to place less reliance on the dichotomy between public and private practice and to introduce a more tailored consideration of whether there was a risk of a particular practitioner coming to the notice of the authorities.

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.

I accept the respondent’s submission that LL permits the consideration of the individual circumstances in a particular case. The Upper Tribunal’s reference to the number of those who practise Falun Gong in China safely is accurately based on the 2010 COIR and does indeed indicate that “normally” there is not a real risk for someone who practises in private and with discretion (§35 of LL). However, it is implicit in the use of the word “normally” that there may be particular features in an individual case which would give rise to risk. Furthermore, §38 of LL refers to the sort of activities that might bring someone to the adverse attention of the authorities in China and expressly recognises the potential existence of “special factors”.

Given the flexibility of the guidance in LL, it was in my view open to the Upper Tribunal to take the view that it remained appropriate and to conclude that the evidence in the COIR did not represent a change from the evidence summarised in LL. It then went on, as it was obliged to do, to consider how this particular appellant would behave on his return to China, which exercise provided it with the opportunity to put into its consideration of risk any individual features which would be likely to call attention to him, including matters such as his likely domestic circumstances, the circumstances of his return and so on. Its findings mean that it was not accepted that he would do anything which would bring him to the attention of the authorities as a possible Falun Gong practitioner and those findings are not open to challenge before us. He was found to be someone whose practice of Falun Gong “has always been discreet”. As for the fact that he and his wife had had three children, the Upper Tribunal found that that was not a breach of the family planning policy in China as children born abroad are not counted.

The second appeal ground identified by Sullivan LJ, concerning the appellant’s attendance at Falun Gong demonstrations as a spectator and the implications of HJ, has not featured in the appeal in quite the format that it was originally drafted. However I have considered the issue in the terms presented to us. Whilst I accept that HJ may mean that the appellant should not in theory be expected to give up spectating at demonstrations on his return to China, I accept the respondent’s argument that the point is academic as the movement is not now a public one in China and there is no evidence of public demonstrations of Falun Gong of the type that the appellant attended here. I also accept the respondent’s argument 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.

I would accordingly dismiss the appeal.

I agree.

I also agree.