HC v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

The first named appellant is a citizen of the People’s Republic of China (PRC), born on 15^th July 1990. The second named appellant is her dependant daughter, born on 10^th November 2006. Their appeals against the decision of the respondent, made on 18^th May 2007 to remove them from the United Kingdom to the PRC having refused the first named appellant’s asylum, humanitarian protection and human rights claims were dismissed on all grounds after a hearing by Immigration Judge Devittie in a determination promulgated on 18 October 2007. We propose to refer to the first named appellant as “the appellant”.

After an order for reconsideration was refused by the Tribunal on 22^nd January 2008, Forbes J ordered reconsideration and on 20 May 2008 Senior Immigration Judge Latter found that the immigration judge had made a material error of law in his determination of the appeals for the reasons set out in Appendix A hereto. He decided, with the agreement of the parties’ representatives, that the reconsideration should be adjourned for a re-assessment of whether the appellant would be at a real risk of serious harm and be able to look to the Chinese authorities for adequate protection on return. He ordered that the judge’s findings of primary fact were to stand.

Thus the matter came before us. In determining the issues before us we have had regard to the oral evidence of Dr Jackie Sheehan, a number of bundles submitted on behalf of the appellant, namely bundle A, bundle B1 (objective material), bundle B2 (objective material), bundle C (authorities), bundle D (third expert report and sources), a skeleton argument from the appellant’s counsel dated 28^th October 2008, a bundle submitted on behalf of the respondent entitled “Bundle E”, a COI Service Country of Origin information request and the submissions made on behalf of both parties.

The immigration judge accepted that the core of the appellant’s testimony was reasonably likely to be true, Ms Finch did not call the appellant to give evidence. In his determination the immigration judge set out a summary of the appellant’s asylum interview and her witness statement prepared for the hearing before him, dated 31^st July 2007, which is the latest statement from the appellant contained in the appellant’s bundle A. As there is no issue in relation to the primary facts found by the immigration judge we summarise the appellant’s claim. She was born in the village of Nan Shan in Hefei City in Anhui province, where she was looked after by her grandmother between the ages of 6, when she was orphaned, and 10, when her grandmother died. Thereafter she left her home village and took a train and ended up in Sezhuan where she lived on the street with many other children like herself. She would scavenge in bins for food and sometimes find work which was very difficult because of her age. She would collect and recycle cans. When she was about 12 a couple took pity on her and she stayed with them until they moved in 2002, after which she went to a rural area outside the city and worked as a domestic worker. In August 2002 she moved back to the city and continued to live on the streets. In February 2003 she was asked to deliver a parcel to Beijing for 2,000 yuan for which she was paid in advance. She arrived in Beijing and found a hostel to stay in but was unable to contact the people to whom she was to deliver the parcel. She went to the police who allowed her to stay for a few days. She left the parcel in a supermarket safe but it disappeared. She was found by those to whom she was to deliver the parcel and threatened by them, as a result of which she ran away to Bao Ting City where she lived for about a year. She lived with other children and they found ways of getting money in order to survive. In March 2004 she was caught by the people to whom she had been supposed to deliver the parcel and imprisoned by them for two or three days and badly treated. She managed to escape and then moved to a place called Jian Zhao near Sizhuan, where she stayed for about a year. She moved around but ended up back in Beijing where she was told she could get an identification card. She worked in restaurants but had problems in getting work because she was very young so she obtained a forged identity card which showed her to be older, which helped.

It was in 2005 when the appellant was aged about 14 or 15 that she became involved in prostitution. She met a middle-aged Chinese woman while she was employed washing dishes. She had been told that she could find her work to make a lot of money. She was approached by this woman at a time when she did not know what the work involved. She went on a journey by minibus with this woman and two other young girls and arrived at a house in Sizhuan. She stayed in a room and waited to be given work. After two or three days she was told she had to take clients. She was told that if she wanted money then she had to have sex with a man who was brought to her. The arrangement continued for perhaps six to seven months. The appellant was very frightened of the woman, who said that if she ever ran away she would find her. The appellant used to make perhaps 200 yuan from each client, half of which she would be able to keep. The arrangement continued and she was able to save some money. What kept her going was that she was setting aside money and she thought that one day she would be able to escape. In November 2005 she had saved 7,000 yuan. Another girl in the same house said that she knew of an agent who could help her to get away. She met the agent and handed to him the 7,000 yuan and her mother’s ring. Subsequently he took her to an airport on 20^th December 2005 and she left China. In her interview for the purposes of an age assessment report she said that she travelled with a snakehead and that the country they flew to was Russia. She was met by a man who took her to a house where she was locked in. He later told her that she would have to be his mistress and have sex with him when he required it and with others when he was not there. In February 2006 he said he was taking her with some other women to another country to which they travelled, she thought, towards the end of February 2006. She was frightened of this man who called himself CB and was afraid that he would hurt her if she did not do what he said. She stayed in the new country for about two weeks and then moved to a different country, which it seems was Russia, where the same thing happened again, only this time she was pregnant but she did not mention this to CB. They then went to another country where the same thing happened and where they stayed for nearly five months. She was conscious that her pregnancy was beginning to show, although no one said anything. CB came and said that she had to leave. They took a train to a small place from where she flew to the United Kingdom, arriving on 2^nd December 2006.

In paragraph 8(c) of his determination the immigration judge quoted the penultimate paragraph of the appellant’s statement, dated 31^st July 2007, which read as follows:-

“Since the decision to refuse my asylum application I am aware that the emphasis has moved in my case about the issues of prostitution and how the agent brought me to the United Kingdom. From the start of my case, at the asylum screening interview I made it plain that I had been forced to work as a prostitute, both in my country and on the way to the United Kingdom. From the preliminary statement I emphasised that “I am scared of being in my country. I did not want to be a prostitute and I do not want to be in this situation again. I was very scared when I had to do this. I was sometimes hurt and I always felt bad and I have trouble talking about many of the things that happened. I thought that by coming here I would be safe. I have never chosen to have sex with anyone. I was threatened and I felt that I had no choice. I want to forget those things. When I think of them and have to talk I get upset. I get angry and sad and I cry a lot.” (B5) And so I do not think that it can be said that I had not emphasised this fear from the start.”

Dr Jackie Sheehan adopted the contents of her three reports, these were dated respectively 26^th July 2007, 29^th April 2008 and 29 October 2008. Dr Sheehan has a BA in Chinese Studies from the University of Cambridge (1989) and a PhD in Chinese History from the School of Oriental and African Studies, University of London (1995). Following three years of full-time doctoral study, she has spent the last twelve years researching, teaching and publishing on aspects of the People’s Republic of China since 1949. She is presently employed as an Associate Professor in Contemporary Chinese Studies in the School of Contemporary Chinese Studies at the University of Nottingham. Her research interests include the development of autonomous social organisations in the PRC and the legal and political treatment they receive, the Chinese Communist Party, the government’s responses to grass roots political initiatives, opposition and dissent, and contemporary Chinese concepts of and legal protection for civil, political, social and economic rights. She reads and speaks Mandarin Chinese and visits the PRC two to three times per year.

In her first report, Dr Sheehan said that the appellant’s account of her life as a street child after the death of her paternal grandmother was a typical one. Her account of how she originally became a sex worker in China was also a fairly typical one. Although it might be thought she was very naïve not to realise the nature of the well-paid work she was offered until she was forced to have sex with a client, her gender, rural origins and lack of education all meant she would have been even more ignorant of sexual matters and unaware of her likely destination. This would still have been the case had she been significantly older than 14 or 15 years of age at the time.

Dr Sheehan was of the opinion that prejudice against pre-marital and extra-marital sex, unmarried mothers, illegitimate children and prostitution was of a different order of magnitude in the PRC compared with, say, the United Kingdom. It was regarded as a terrible personal misfortune not to marry and have a child in the PRC and as a failure of duty to one’s ancestors. Marriage has remained near universal (over 99% of Chinese marry at least once in their lives, and 97.5% of women were married by the age of 35). She expressed the view that the amount of 7,000 yuan paid by the appellant was a low figure to be taken out of the country. She believed that the agent and/or his contacts abroad must have intended to make their money back from forcing her to work in the sex industry. They may not have announced this intention to her, but it was the only way in which a young woman like her could possibly be expected to pay off a substantial debt owed for her false papers, travel and subsistence, including travel from Russia to two unknown countries and eventually to the United Kingdom.

Dr Sheehan turned to the issue of the appellant’s likely circumstances if she were returned to the PRC as an un-married mother of an illegitimate child, including any punishment she might face for leaving China and for breaching family-planning regulations with the birth of her child, her and her child’s vulnerability to exploitation by people–traffickers in the PRC and the efficacy or otherwise of the protection available to women in her position against such exploitation. As noted in paragraph 35.06 of the COIR on China of April 2007, very little was known about the treatment and practice of individuals repatriated to China with the imposition of either fines or prison sentences “to a considerable extent a mystery.” A prison sentence of up to one year was the prescribed penalty for leaving China illegally, although some scholars suggested that the punishment was likely to be substantially “at the discretion of local officials.” Computerised record systems were used at every international border crossing, including even the more remote land borders with central Asia and she did not believe it would be possible for the appellant to escape detection if she were returned to China. Although when she left China she was too young to have been issued with a resident ID card, which all Chinese citizens must carry with them, she would have had a household registration (hukou) status of her own recorded, namely a rural one, and thus she was likely to be returned to rural Anhui, where she was born. In order to stay in an urban area where she might be more likely to find work she would need to obtain false documents, which were available in China but relatively expensive for good quality forgeries, as people found with fake documents were liable to detention and often in very poor conditions before custody and repatriation to their proper home district. Dr Sheehan stated that if this was not known they could remain in detention centres, known as Custody and Repatriation Centres, for long periods of time where a mixture of indigent, the homeless, street children, run-a-ways, the mentally ill, victims of trafficking, unemployed migrants, people suspected of crimes, petitioners whose grievances had not been satisfactorily resolved and so on were held. The mixing in centres of suspected people traffickers and their likely victims had been noted with concern by human rights organisations which characterised the centres less as the welfare institutions they were supposed to be and more as “holding pens” with “abusive conditions” which had resulted in deaths on some occasions. She expressed the view that given the appellant’s lack of relatives in China or economic resources of her own, together with her rural local status, she and her child would be vulnerable to ending up in such a centre if returned to the PRC. In passing we observe that there seems to be a contradiction in what Dr Sheehan has said in that the appellant’s proper home district is in fact known.

Dr Sheehan expressed the view that whether held in a detention centre for custody and repatriation or not, the appellant would be very vulnerable to exploitation by people traffickers if returned to China. The prevalence of human trafficking in the PRC was acknowledged by the authorities who admitted that the many thousands of cases dealt with and tens of thousands of women and children freed from traffickers represented merely “the tip of the iceberg” of the phenomenon in China. The NGO Human Rights in China had observed that:

“Despite reported initiatives to suppress all forms of trafficking in an exploitation of women, efforts have fallen short of substantive protection due to limited legislative definitions, administrative detention of prostitutes, and policy execution.”

There were severe penalties available in law to punish people-trafficking offences but they did not seem to have had much deterrent effect to date. She quoted a publication by Dr Michael Palmer in 1996 which said that:

“Imposing the death penalty for certain forms of dealing in women and children may be another example of the lawmakers’ fallacy to which post-Mao China is particularly prone: that severity of punishment is the most significant feature of the law. Severe punishment is imposed for a crime in the expectation that it will have a greater deterrent impact. This approach overlooks the fact that the certainty of being detected and punished may well have a greater deterrent effect than the severity of the penalty.”

Dr Sheehan expressed the view based on the report of the International Labour Organisation “Girls for sale: Preventing Trafficking in China”, 25^th November 2005, that Anhui province was a major “sending” area for trafficked women and children. Even if the appellant were able to relocate to another area, which was unlikely, her lack of family or social networks to protect her interests, her poverty, her status as a never-married mother would still make her a likely target for traffickers. She said that paragraph 33.07 of the COIS Report of September 2006, observed that centres for the “transfer, training and rehabilitation” physically and psychologically of trafficked women had opened in Kunming, in Hunnan province, Chengdu in Sichuan province and Xuzhou in Jiangsu province. These centres, however, accommodate only 2,000 women in a country in which the authorities themselves admitted that an estimated 10,000 – 20,000 victims a year represented the tip of the iceberg. The closest centre for the appellant, assuming that she would be returned to her old home district in Anhui, would be the Xuzhou one which was approximately 150 miles away from her home district, which further reduced the odds of her becoming one of the small number of women who could be accommodated in these centres. She mentioned paragraph 33.07 of the COIS report which cited the existence of legal aid and legal counselling centres in 30 provinces and autonomous regions of the PRC as sources of help for trafficked women and children, but pointed out that these centres were for general legal aid and counselling and not solely, mainly or specifically for the benefit of vulnerable women and children who had been trafficked and/or sexually exploited. It had been estimated that legal aid in China only covered about 25% of demand from defendants in criminal cases who could not afford to pay for a lawyer from their own resources and in addition priority for legal aid was given to criminal defendants facing the death penalty and to the handicapped, aged and minors claiming compensation in personal injury cases.

Dr Sheehan expressed the view that should the appellant be compelled to work in the sex industry again she could expect little assistance from the Chinese police. Where the rights and interests of women in the sex industry were concerned, it had been noted that anti-prostitution campaigners tended to target the women themselves rather than their employers/pimps or their clients. Some campaigns had been associated with high levels of police brutality towards sex workers. The police had also been described as one of the “seven vicious wolves” preying on contemporary Chinese society, a category which also included prosecutors and gangsters (Triads). It had been documented that PSB officers, the PSB being the regular police force in the PRC, had taken the side of traffickers or pimps in cases involving women trafficked for sexual exploitation, regarding it as their duty to return the women to their “owners”. In the 1990s in the PRC the PSB and the People’s Liberation Army themselves ran large numbers of businesses such as massage parlours and karaoke bars in which prostitution took place. The PLA in particular were strongly discouraged from involvement in such businesses and forced to close many down after 1998, but the period had left a strong impression on many Chinese that the law enforcement and security services not only failed to crack down on such establishments, but often had a direct interest in them, and were therefore the worst people to turn to for a sex worker who was being exploited and needed help.

Dr Sheehan expressed the opinion that the appellant’s gender would put her at a disadvantage if she were returned to the PRC. China was still a strongly patriarchal society and a young woman living alone, without family support was a vulnerable figure. The birth of a child made her situation more serious since it contravened the PRC’s laws and policies on population control and family planning, commonly known as the “one-child policy”. Great weight was and still is attached to the effective enforcement of the policy, which had been closely linked with the PRC’s achievement of its economic-development goals. Dr Sheehan mentioned that the term “one-child policy” was a misnomer in some respects as couples in certain circumstances, since 1984 at least, had been permitted more than one child. There was a limited and regionally variable relaxation of policy. Violation of the one-child policy was generally punished with fines, which could be up to ten times the average annual income. Punishment could also include deprivation of benefits for children born “outside the quota” and sometimes for other family members as well. Concern about the prevalence of coercive measures such as late abortions and forced sterilization, and cases of the authorities taking children away from their parents had led to the CCP government in recent years breaking the link between achieving family-planning quotas and local officials’ pay and promotion, a policy adjustment which was believed to have reduced the incidence of excesses in the enforcement previously very common in rural areas. However, the law was still very strictly enforced in urban areas and reports of coercive and illegal measures being used against women still emerged. Experts in the field conceded that it was impossible to generalise from the relatively small number of well-documented cases as to how widespread coercion and abuses were since the passing of the Family Planning Law. The system of permits to give birth was not available to unmarried women. As she was unmarried, if the appellant were to return to China her child would be deemed to have been born “outside the quota”, or illegally. She would be subject to financial and social penalties, probably being required to pay a substantial amount by way of a “social compensation fee “ and the child would be discriminated against in e.g. access to school places. She might be required to pay extra for her child’s education.

If the appellant were returned to the PRC as the mother of an illegitimate baby, she and her child would be subject to severe discrimination and considerable long-term social and economic disadvantages. Her chances of marriage would be greatly affected by the fact she had already had a child. Because of the hukou regulations she would not be able to chose to live within an administrative area which allowed couples, where one party already had a child before marriage took place, to give birth to a second child, permitted in some areas for the past two to three years in recognition of the rising divorce rate in the PRC and the increased incidence of step families. Like most measures announced as applying to “single-parent families” in the PRC, it was not intended to apply to never-married mothers, only to divorcees and widows. It was very unlikely any man would agree to marry the appellant as he would be giving up his only chance to have a child of his own. There would be pressure from not only the man but also from his parents who, in the absence of a pension system covering most PRC citizens, would expect to rely on their blood relatives in their old age. Had the appellant’s child been a boy, it is possible she might find in-laws prepared to allow their son to adopt him, but it was, in her view, far more likely that they would prefer the chance for him to father a child, especially a son, of his own. If she resided in an administrative area, which permitted couples a second child where one partner already had a child, she would still be at a severe disadvantage in seeking a marriage partner for the reasons already given. Children of one-parent families in the PRC were subject to considerable societal prejudice and disadvantage, even where they were the legitimate offspring of a divorced or widowed mother rather than a never-married mother. They were typically regarded by e.g. teachers, medical practitioners, law enforcement personnel as much more likely than the average child to exhibit delinquent behaviour, break the law, or suffer from mental health problems, as well as being severely economically disadvantaged. Recent reports had noted that more than 50% of single-parent families in China (the vast majority of which are headed by women) experience economic difficulties, and 43% have incomes less than RMB 300 yuan (about £67) per month. The Women’s Federation had noted that 79% of China’s juvenile delinquents were from single-parent families and in the same article the head of a reform school in Beijing reported that more half the young offenders in his institution were from single-parent families. Leadership of Chinese schools and universities were socially and culturally conservative as a rule and no educational institution would be likely to take a student who admitted to being an unmarried mother. The appellant’s job prospects would also be severely limited by her status as the mother of an illegitimate child, as would her access to housing. Both rural and urban China were presently suffering considerable levels of unemployment and under-employment in what is still a patriarchal society, as preference for jobs tends to be given to men over women. The jobs which had attracted tens of millions of migrants to China’s urban areas since the late 1980s were mostly on offer to men, and such work as is offered to young women with few qualifications, such as live-in domestic service or childcare, would very probably be refused to the appellant by a prospective employer aware of her illegitimate child.

In her second report Dr Sheehan mentioned that the US State Department Report dated July 2007 stated that the PRC remained on a Trafficking Tier 2 Watch List for 2007, which was the third consecutive year and represented deterioration from its Tier 2 status position in 2001 to 2004. The report stated that the PRC government did not fully comply with the minimum standards for the elimination of trafficking, but was making significant efforts to do so. She stated that those aspects of its anti-trafficking measures for which the PRC was commended and recognised as making “significant efforts” were not those most relevant to protecting someone like the appellant. One area of improvement was identified as “sustaining efforts to enforce its laws against trafficking“ and better cross-border co-operation with countries like Burma, Thailand and Vietnam; and limited co-operation and liaison with the United States law enforcement agencies on specific cases, though not systematically. The report described the range of penalties available for the offences of forced prostitution, abduction, and some forms of commercial sexual exploitation as “sufficiently stringent to deter”. She repeated the point that Professor Michael Palmer disagreed with this assessment. She stated that for organised-crime syndicates involved in trafficking, the risks of detection and prosecution may not in fact be very great as such groups were often under the protection of government or CCP officials. The USSD 2007 Report also noted that despite its general anti-corruption measures, the PRC government “did not demonstrate concerted efforts to investigate and punish government officials specifically for complicity in trafficking”. The main weaknesses in the PRC’s anti-trafficking efforts were identified in the USSD Report as victim care and protection and tackling trafficking for involuntary servitude or forced labour which were precisely the areas on which the appellant and her child would rely for protection against re-trafficking if they were returned to the PRC. The report confirmed an estimated minimum of 10,000 to 20,000 victims of trafficking a year in China and this did not include cases of international trafficking, the extent of which the report described as considerable. She expressed the view that this statistic for investigation and prosecution for trafficking often cited by the Chinese authorities in their own defence did not demonstrate that the situation regarding trafficking was under control, or even that it was improving. The COIR of December 2007 cited statistics that in the period 2001 to 2003, more than 20,000 trafficking cases were “cracked down upon”, more than 40,000 trafficked women and children were rescued and over 8,500 cases were brought to court involving over 15,000 defendants. The period was that of the last national anti-crime “Strike Hard” campaign of the PRC, which might account for the high volume of cases said to be investigated then. Since the end of 2003, however, the PRC status on the USSD Watch List had deteriorated and the USSD 2007 Report cites for the reporting period 3,371 cases of trafficking investigated, 371 victims rescued and 415 suspected traffickers arrested by provincial governments. No data was given on the outcome of the 3,371 cases investigated, or on convictions for trafficking offences generally. The statistics suggested that in the 2007 reporting period, fewer cases were investigated and fewer victims rescued than in 2001–2003. The generally agreed minimum number of victims per year of 10,000 to 20,000 indicated that by the Chinese authorities own admission they were failing to apprehend most traffickers and therefore failing to free their victims or protecting those victims from re-trafficking.

In relation to the criticism of the PRC for its failure to show evidence of increasing efforts to improve comprehensive victim protection services, she mentioned that there was also a rehabilitation centre for victims on the Guangxi-Vietnam border, but it only offered short-term rehabilitation for a maximum of 30 women and was aimed at victims of cross-border trafficking. The 2007 USSD Report provided the additional information regarding the Kunming centre that victims of commercial and sexual exploitation were not offered psychological assistance and were generally sent home after a few days. The USSD Report concluded that since 2007, progress and protection and rehabilitation for trafficking victims was modest and that protection services remained temporarily inadequate to address victims’ needs. The Ministry of Public Security stated that Chinese trafficking victims returning from abroad were not punished or fined, but the All-China Women’s Federation (ACWF) reported that protection from punishment was only on an ad hoc basis, with intervention from ACWF staff. This raised the possibility that the appellant would face penalties from the PRC authorities if returned there which would either worsen her already difficult economic situation (if she were fined) which in itself would put her at greater risk of re-trafficking, or, if she were sentenced to a period of detention, would publicly identify her as someone who had been involved in the sex industry, which in turn would expose her to further risk of re-involvement in that industry in targeting by traffickers.

Dr Sheehan quoted what she described as a rather confused statement by the Deputy Minister of Public Security, Mr Zhang Xinfeng from December 2003 which claimed that the PRC had now shifted from “combating trafficking“ to “anti-trafficking” which she read as a claim that the emphasis had shifted to prevention rather than dealing with cases after trafficked people had become victims. Mr Zhang, however, was also quoted as saying that “China does not have a safety net against trafficking in women and children” which directly contradicted the first claim and suggested that the shift of prevention remained an aspiration. He are also quoted as saying that 2,500 trafficking cases were solved in 2006, constituting 80% to 90% of the total, and that no law enforcement personnel were involved in any trafficking cases. She said that the latter statement was contradicted by evidence from the cases of trafficked un-free labour in the Henan and Shanxi brick kilns exposed in 2007, and she did not accept that 2,500 cases, if that figure were accurate, could be known to constitute 80% to 90% of total trafficking cases, given a minimum annual number of victims of 10,000 to 20,000. The report was quoted in the Beijing Youth Daily which was the mouthpiece of the Beijing branch of the Communist Youth League which was a CCP-controlled mass organisation. She would require further details of corroboration of the more striking claims in the article before accepting them as evidence of a breakthrough in China’s anti-trafficking efforts.

Dr. Sheehan reiterated the view that the appellant’s lack of family or social network to protect her interests and her poverty if returned to China would make her a likely target for traffickers. Both work and accommodation were activities fraught with risk for a young woman alone. Some people-traffickers would typically disguise as offers of legitimate work and/or accommodation, an intention either to force the woman into marriage to a paying husband or to compel her to work in the sex industry in China or sometimes overseas. However cautious the appellant tried to be she would remain extremely vulnerable to the many fake employment agencies and training providers in China, which were actually fronts for people–trafficking. The 2007 USSD Report highlighted the PRC’s “failure to show evidence of increasing efforts towards trafficking for involuntary servitude” as one of the key weaknesses in its anti-trafficking efforts and found that legal penalties which could be imposed on employers for forced labour were “not sufficiently stringent” urging the PRC to “take significant measures to improve in these areas”. She stated that the only relatively safe way to find work in China was to go on the recommendation of a family member or someone from the same home village or small town and the appellant’s background precluded her from doing this. She would therefore have no choice but to go to exactly the kind of agency that traffickers exploited.

Dr Sheehan said that seeking accommodation would pose major problems for the appellant and her child. Rented accommodation of a decent standard was expensive in urban China, scarcely affordable to a young woman who relied on either very limited state benefits or a low wage from the kind of job she could realistically expect to get. Although accommodation would be cheaper in rural areas, it was hard to come by but rural couples tended not to have spare rooms for rent to strangers and would be very reluctant to take in a young woman who was not a relative, particularly one with an illegitimate child and particularly if there was a man living under the same roof, for fear of gossip and moral disapproval from neighbours. Anyone in the countryside or the city who did offer to take in the appellant and her child as tenants might well do so with the intent of informing people traffickers of a likely target and claim a reward for providing the information. Although the eventual abolition of the household registration or hukou system was being planned in several provinces, the system had not yet been abolished in any area of China and was still very much in force for the time being. Measures which were being discussed centred on reducing the barriers between urban and rural residency as a recognition of the high level of rural–to–urban migration now taking place in China and on adapting the system to changes in Chinese social expectations and family structure, for example by making it easier for spouses from different places to move their registration to a shared residence and to enable elderly citizens to move in with their adult children. It was not intended under present proposals to remove restrictions on internal mobility completely, or to allow Chinese citizens to live wherever they wished or to move to certain areas, as an automatic right. As things stood, the appellant would have to start from her home area, one of the poorest provinces in Eastern China and, in order to move, find a job in a different part of China and then apply for permission to move there. Permission would be unlikely to be given unless she had been able to arrange a permanent job paying enough to cover her living expenses and, as a young woman with little formal education or work experience and no remaining family connections, she would face severe practical difficulties in trying to settle and find work in any city in China. Attempts to find both work and accommodation in any part of China would be likely to expose her to the risk of trafficking. Dr Sheehan repeated the evidence that it was pretty easy to obtain all kinds of fake documents in China, but she stated it was risky for anyone in the PRC to rely on fake documentation, especially cheaper poor quality fakes which are easily detected, for a long period of time in order to live outside their registered area. It was reported in the December COIS report that new plastic ID cards with embedded computer chips, introduced in 2004, were supposed to be used by all Chinese adults by the end of 2008, which would also make it more difficult and expensive to get hold of convincing fakes. The only other legitimate way in which the appellant could acquire household registration for a different part of China would be to marry someone with a legal registration elsewhere, but her illegitimate child would make it extremely difficult for her to find a husband.

In her third report, Dr Sheehan mentioned the report of a recent investigation published in the Guardian of 11^th October 2008 which described a network of brothels in the United Kingdom through which Chinese women and girls were circulated in:

“a criminal enterprise that blurs the boundaries between trafficking and smuggling, ensnaring girls and women who in many cases leave China of their own free will. Often sent with the best wishes of their community, which has clubbed together to pay the exorbitant fees, the victims cannot bear to tell their families what they have been forced to do on arrival.”

She stated that there was considerable stigma attached to Chinese women who had been trafficked, whether into forced marriage or into the sex industry, which had become a factor hampering Chinese government efforts to rescue and rehabilitate trafficked women and girls since the victims and their families did not want to be identified in public as having been trafficked. She quoted a Human Rights in China report of 30^th June 1995 which suggested the principal reason for discrimination against trafficked women was that their families felt that this had caused them a loss of face, particularly the fact that the women had had sex with their buyers, regardless of whether this was forced upon them. Dr Sheehan expressed the view that the prejudices around women’s sexual behaviour in China were very long-standing ones, and not something about which popular opinion would have changed dramatically even over a period of thirteen years since the publication of the report. A BBC report on the same subject dated 28^th April 2000 said that according to Chinese state media, women who had been forced to work as prostitutes often faced prejudice if they returned to their home villages. The situation had caused one academic to appeal to the Chinese press not to reveal the identities of rescued women as this was making it harder for them to find husbands.

In relation to the adequacy of protection against re-trafficking, Dr Sheehan mentioned that the 2008 US State Department Report showed that the PRC remained on a trafficking Tier 2 Watch List for 2008 which made it the fourth consecutive year. The 2008 report stated that the PRC government did not fully comply with the minimum standards for the elimination of trafficking but it was making significant efforts to do so. She quoted an article by Emily E Schuckman published in 2006, stating that corrupt law enforcement officers and government officials were a barrier to combating prostitution and trafficking. Officials were bribed by pimps or brothel owners or offered perks when they themselves visited the brothel. These actions indicate the silent encouragement of prostitution and, intentionally or not, trafficking. Prostitution was an embarrassment to the Communist Party which touted its ability to eliminate social problems. Party officials often opted to just avoid the issue. The USSD 2008 report also noted that despite its general anti-corruption measures, the PRC government had not demonstrated concerted efforts to investigate, prosecute and punish government officials for complicity in trafficking. The USSD Report 2008 welcomed the establishment of the Office for Preventing and Combating Crimes of Trafficking in Women and Children and the December 2007 release of its National Action Plan to Combat Trafficking, but pointed out that it had not been accompanied by any plans to provide local and provincial government with the resources to implement the plan. There was no reason to suppose that any of the rehabilitation centres were better resourced or able to provide a more comprehensive service for the relatively small number of trafficked women which they could accommodate. The 2008 USSD report confirmed that there still remained overall an inadequate number of shelters for victims of trafficking and there continued to be no dedicated government assistance programmes for victims and China continued to lack systematic victim identification procedures to identify victims of sex trafficking among those whom it arrested for prostitution.

Dealing with the ability of the appellant to obtain employment, one new matter referred to was the coming into force of the 2007 Labour Contract Law which had resulted in a number of low-end manufacturing operations in eastern China which did typically employ unskilled female labour relocating to less-protected labour markets in e.g. Vietnam. Female university graduates fared worse than men in a highly competitive labour market. The end of segregation by occupation in industry was a major factor undermining equal pay legislation, with women workers heavily concentrated in the lowest-income groups in both urban and rural China. There was also evidence that women had suffered disproportionately in the large-scale lay-offs and employment restructuring which China had undergone over the past ten years, and had come to be regarded by many employers as too expensive to employ because of their rights to maternity leave and a younger retirement age then men.

In relation to the stigma and social prejudice that the appellant and her daughter would be subjected to if returned to the PRC, a recent article in the New York Times noted that more unmarried women in major Chinese cities were now having premarital sex, but still in a situation of extreme ignorance about sex and reproductive health. China was a society that was extraordinarily repressive in relation to human sexuality and where even the privileged and educated minority constituting male college students had been found to have received little sex education and to rely instead on male peers, books on hygiene and health, news media, novels and pornographic art for information. A recent article provided some statistics on the incident of premarital sex in China while noting that studies of sexual behaviour among Chinese populations were still not common, partly as a hangover from the years of sexual repression, and partly because of traditional reluctance to discuss sexual issues. The few studies that addressed premarital and extramarital sex showed that it had increased, dramatically, in some urban areas, but that traditional values persist and China had not reached the levels of permissiveness seen in Western countries. The figures given for the proportion of Chinese who have had premarital sex range from 9% to 52% (the latter figure was from a study of Anhui province, a major “sending” area for both migrants and victims of trafficking, and included both men and women; other studies gave significantly higher figures for men who reported having had premarital sex, so it could be assumed that the Anhui figure would be lower if it referred to women only).

Dr Sheehan said she believed that the appellant’s youth and her status as a single mother and a trafficked woman would lead to her being profiled as a likely sex worker, both by the authorities and in general opinion in China. There was a risk of her ending up working in the sex trade again either if trafficked within China or as a last resort if unable to support herself and the child in any other way. Single motherhood carried a considerable social stigma with it in China. She quoted a New York Times article of 13 May 2007 observing that:

“A single, pregnant woman faces enormous social stigma and shame and has few options beyond abortion. Single motherhood is almost non-existent, and unmarried pregnant women rarely carry a pregnancy to term in order to place a child up for adoption.”

Even divorced single mothers in China were subject to heavy social disapproval and were almost universally blamed for the break-up of their marriages, so that presenting herself as divorced would only slightly reduce the prejudice with which the appellant would be regarded in Chinese society. Never-married mothers belonged to the most stigmatised category of all and young single mothers were very conspicuous in Chinese society, because of their rarity, and the presence of a child would confirm to any observer the sexual history of the mother, which brought into play all the prejudices and assumptions that mentioned. An unmarried woman with no relatives would be unlikely to be able to reciprocate favours received and, in the absence of a family member powerful and well resourced enough to reciprocate on her behalf, she would be an isolated and vulnerable figure.

In oral evidence Dr Sheehan said the appellant had no identification document. She was now over 18 and therefore she would need a residence identification card and a household registration document. She said that the local police would have a copy, which said who her parents were and her date of birth. That would show the only place where she could legally live unless she obtained a permit to live elsewhere. She said that permits were usually given for work or for marriage. To get permission to live elsewhere she would need to show that she had a job arranged in an urban area and that she would be paid enough to cover her expenses. She said the system in China was designed to limit migration and the use of resources. She said there were quotas depending on qualifications to second and third tier cities such as Shanghai. She said she knew the appellant’s province as a poor area in eastern China. It was prone to flooding and historically difficult to make a living there and it was an area from which people tended to be driven out from time-to-time by flooding. She said that the appellant would have difficulty in getting employment due to the lack of family support. She would have difficulty in getting into farming because she would need to obtain land. Technically she was entitled to a share of land, but redistribution was every ten years or every so often. Women were at a grave disadvantage and women without a family at a greater disadvantage. Some areas did not redistribute. She said that the appellant’s grandmother would have had land which would have gone back into rotation. She said that land would be forfeited if the user permanently migrated or was unable to cultivate it.

Dr Sheehan said that migration to get factory work was not as easy as it used to be due to the present economic downturn and it was the lower end of manufacturing which employed unskilled women which went first. She said that in June of 2008 a new Labour Contract Law came into being which was intended to squeeze out the worst employers, but they had gone quicker than expected to places such as Vietnam and Bangladesh and 50,000 factories had closed. In order to obtain employment one would need to have connections to know when hiring was taking place. The appellant would be likely to get turned away as a woman if she went to the factory gate. She said factory owners would be looking for unmarried women between the ages of 18 and 25 and would not expect children. She said the women would live ten to twelve in dormitories. Those who had children would rely upon their workmates to look after them when they were not on shift, but employers would be reluctant to employ them. In China employers were wary of women because of maternity leave and early retirement. Ms Finch asked Dr Sheehan if the appellant would be able to train. She said she would if she could find the fees. She said, however, companies were much keener to employ young people out of school and were reluctant to train those even in the late thirties. She said there was a ready supply of new leavers. She said in one of the migrant villages in Beijing there were signs for textile outworkers to train, but one needed to pay upfront. She said handwritten bits of paper could be seen on doors which promised training but these might very well be fake. The money would be taken and no training or employment provided. She said there were not near enough sufficient inspectors to stop this happening. Unless you had the guidance of people you knew you could trust there would be a risk of loss.

Dr Sheehan was asked about the Chinese view of unmarried mothers. She said that the popular view was that there should not be any because there should not be sex before or outside marriage. She said new Shanghai novelists might write about sex, but that was not representative of the wider view. She said single motherhood was uncommon because of the pressure to terminate the pregnancy, to give up the baby to a state institution or to abandon it. She was asked whether there was a stigma attached to trafficked women. She said that they were not regarded as victims like the victim of domestic violence. She said they were seen as women who should have known better, but got in with bad people. They were seen as immoral and lost all benefits of family and community. She said they were people with whom others did not want to be associated. She was asked how the widespread prostitution in China correlated with women being trafficked. She said her students took it that it was being tolerated, but in fact it was not tolerated. She said it was very common because the Chinese culture set store by male potency, which created a demand for prostitution. It was not OK to practise on decent women. Once a woman was in that category there was no chance of restoring her reputation and emerging on the other side. The fact that a woman had been trafficked would be seen as her own fault.

Dr Sheehan was asked whether people would know that the appellant had been trafficked if she returned to China. She said they would not but she would return with a baby and no apparent father. The fact that she was a migrant at a young age might suggest a pattern of trafficking. Dr Sheehan was asked whether shelters would be available. She said she had not been to any. Apart from one on the Vietnamese border there were three of them which had a total capacity of 2,000 places. The one closest to the appellant’s home was over 100 miles away. She said there was little evidence about them. According to the US State Department Report they did not offer a psychological assessment and sent women home after a short stay. She did not know the criteria for admission. She said the evidence suggested they were for victims of internal trafficking.

Ms Finch asked Dr Sheehan what would happen to the appellant on return at the border. She said she would be travelling on a travel document and so officials would be aware that she had migrated illegally. She said the COIR explained that we do not know what happens. The penalty was of detention of up to a year. She said for ordinary migrants the probability was that they would receive only three months. Even if she got through immigration control she would run a risk due to her economic difficulties. She said that she would need to go back to Anhui and apply for a residence card. She said that would be a very inhospitable environment. She said that she would have no family, no great education and/or work skills. She was asked about registration of her daughter. She said that that was a vexed question. Although there was not such a thing as a “black child”, the fact was that there were substantial penalties for breaching the One Child Family Policy and one could be fined multiples of one’s annual income. If the appellant could not pay, the child would be treated differently in relation to access to school. She referred to the reply at paragraph 1.2 of the COI Service Country of Origin Information Request which stated that in a report on illegal births and abortions in China published in the journal, Reproductive Health, in August 2005, it was said that the Chinese Family Planning Regulations did not include the concept of an ‘illegal child’ and the law prohibited discrimination against children born outside marriage, but said that children from illegal pregnancies may not be registered or treated equally until their parents paid the fines imposed as punishment. In relation to the reply at 1.1 that Chinese marriage laws did not prevent unmarried women from having babies, she said that China Daily had had a running debate for four to five years, sparked off by a hospital in one province offering IVF to high-earning and unmarried women who were unqualified for marriage. There was a question of whether it would be lawful for such a woman to have IVF treatment leading to the birth of a child. She said it was still unlawful since an unmarried woman could not apply for a birth permit. She said it was suggested that one did not need a birth permit, but one was needed. She said it was a very muddy area. She said that the Family Planning Law of 2002 took preference over other Chinese law and over the law guaranteeing a minimum level of provision.

Dr Sheehan was asked about the hukou system. She said that some articles suggested a liberalisation. She said that in some provinces, of which Anhui was not one, there was a loosening of the rules to take account of elderly parents who had children who had migrated. She said that parents were responsible for their unmarried children for life. She said that the reforms did not mean that you could go where you liked in China. She said the Chinese were recognising that migrant labour was necessary, but they would not make it a free-for-all.

In cross-examination Mr Saunders pointed out to Dr Sheehan that the maximum penalty for illegal exit was twelve months and asked her what was the lowest. She said it was at the discretion of the local authorities. Mr Saunders asked whether it could be just a warning. Dr Sheehan said that was so. She said that if you could give information about snakeheads they would send you away. Mr Saunders asked whether in relation to the final option, if you could not pay, they could let you off. She said if you could not pay they could allow you to pay in instalments or waive the fine in cases of financial calamity. Mr Saunders asked why they would not let the appellant off. Dr Sheehan said that they might. She said that there was a suggestion that women returned were profiled as prostitutes. Mr Saunders asked Dr Sheehan where the penalty in breach of the one child system would be levied. She said it would be at the local level in Anhui. She said the penalty would be set according to income. Mr Saunders asked what would happen if she could not pay. She said she could pay in instalments or it would be waived. She said that property could be confiscated, but the appellant had none. Mr Saunders asked whether her grandmother would have owned her house. She said the position varied enormously and she could not generalise. She said possibly it was taken over if it still existed. She would have been allocated land for twenty years.

Mr Saunders asked whether, if the appellant went back to Anhui, the police would have copies of her documents. She said they would issue her with an identity card which they were not legally able to withhold. Mr Saunders suggested to Dr Sheehan that the appellant would be able to get documentation and would face a fine for breaching the One Child Policy but to what extent was unknown. Dr Sheehan agreed. Mr Saunders pointed out that in paragraph 12 of her most recent report, Dr Sheehan explained that the appellant’s employment opportunities were limited and asked about other menial employment such as working on the land. She said that was work for men which women only did if all of the men had migrated. Mr Saunders asked about domestic labour. She said no one in her area would offer that sort of employment. She said that employment as a nanny in a big city was possible, but the appellant had a baby of her own. Mr Saunders asked whether Chinese authorities had an obligation to house people. She said that was the case. She said there were shelters, but one was not supposed to remain in them. She said the local authority had the obligation to house the homeless and they would not let people be destitute. She said that one did see homeless people on the streets in China, just as one did here, but the authorities would not let people starve or be destitute. She said there was a basic provision for them. Mr Saunders asked, in relation to the attitude of the community, whether there was any other way in which people would know that she had been trafficked apart from her baby. She pointed in reply to the fact that she had been abroad and had been out of the area. She said the appellant would have the burden of proof and she would need a serious alibi. Mr Saunders asked whether, if she got to a city, she would be able to survive. Dr Sheehan said that they were tightening up on identity cards. It was much harder to fake identification. She would still need to make a living and looking for work would expose her to the same kind of network as last time.

Mr Saunders drew the attention of Dr Sheehan to the figures given by Mr Zhang which she had quoted in paragraph 10 of her second report and then drew her attention to the figures which she gave in paragraph 6 of her report, attributed in the COIR of December 2007 to the Ministry of Public Security. He submitted that that represented a substantial effort. Dr Sheehan agreed, but said that the figures did not show that the problem was effectively handled. No figures were given for convictions or showed whether those convicted were still in jail. Mr Saunders asked whether she could provide any figures and she said that she could not. When Mr Saunders again suggested that the figures quoted by the Ministry of Public Security showed a substantial effort, Dr Sheehan pointed out that the figures given were over three years for the period 2001 to 2003, when 8,500 cases were brought to court. She said that had to be set against the estimate that there were 10,000 to 20,000 victims of trafficking per year. She said those figures were given when China was on Tier 2 and now China was on the Tier 2 Watch List which demonstrated that China was not doing so well. The figures were given at a time when the anti-crime “Strike Hard” campaign was taking place. In her opinion that was a blunt instrument when multiple cases were undertaken and a very short time was spent in court. She questioned whether they were prosecuting the right people. She suspected that the “big fish” were well protected. Mr Saunders referred to the statement by Mr Zhang that 2,500 trafficking cases were solved in 2006, constituting 80% to 90% of the total and asked what that total was. Dr Sheehan said she presumed he meant the total number of cases of trafficking. She said that she found the statement that no law enforcement personnel were involved, unlikely.

Mr Saunders drew the attention of Dr Sheehan to the China National Plan of Action on Combating Trafficking in Women and Children (2008 – 2012) issued by the State Council of China on 13^th December 2007. He asked whether this was a sincere or a cosmetic plan of action. Dr Sheehan said that the Chinese authorities genuinely did want to combat trafficking. They were fed up of being on the Tier 2 Watch List. She said that the problem was that there were no resources to go with it whatsoever. The result was that the government relied upon local government diverting resources. She said that in some areas that could not be afforded. She said that the government would get praise and international credit, but they would see that they needed to put money into the plan and eventually they would. She said it was a bad time economically. She said the Chinese definition of trafficking and forced labour never included male victims. In China they were female and so the problem had a lower status in the eyes of the government.

In answer to questions from the Tribunal, Dr Sheehan said that she had not been in contact with women’s organisations in China. She said that even if the appellant had been a professional person who had gone abroad and had an illegitimate child, there would still be a stigma in China. There was still a stigma to a degree if a woman was divorced or a widow as they were termed single women. If it were known the child was the child of an unmarried mother then the parents of other children would not want their child to play with him. She said wealth and family were better protection than anything else. She said that the population of the appellant’s province was 50 to 60 million. She said it was a very diffuse population, with few big cities. She said there were a couple of major railway junctions which were big cities, for the rest it was a network of villages equally spaced. She said that the appellant’s actual area was a rural county and that it would be easier to obtain permission to apply to live in another rural county. She said there were 40 counties with maybe half a million in each. She was asked whether, with a population of hundreds of thousands, one would expect to find different levels of employment opportunities. She said that one would, but the only kind of service industry job would be domestic service. She said that if local shopkeepers, for example, wanted a nanny for their children, the appellant would struggle to obtain that sort of employment. Often the requirement was filled within a family and often a person might be taken in with a view to marriage for the son of the household. To expect a person to take in a young woman with a baby they did not know was expecting a lot. She agreed that the appellant must have moved out of her rural county at an early age without permission. She said she was not sure how they would deal with minors. There was no point in sending her back if she had no family. She said they would have to put her in an institution. She agreed that she would have existed outside the system of identification, as many did. She said that that was a pyramid and by the time that those who did it reached their late teens, most of them had been rounded up. She said if there were 0.1% of the population who did so, that would be 8 million. She said they lived a very precarious existence, always working illegally and they could always be taken advantage of because they could not go to the police. She agreed that it had been reported that repatriation centres had been abolished after a migrant had been caught without papers and detained. He turned out to have papers, had a degree and was a graphic designer and of the middle class. This created a scandal. They had been replaced by unofficial detention of people who did not belong in urban areas in hostels and hotels where they were not allowed out and conditions could be abusive.

Mr Saunders conceded that in the light of the what Baroness Hale said in the House of Lords in Hoxha & Anor v Secretary of State for the Home Department [2005] UKHL 19 and the determination of the tribunal in SB (PSG – Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 00002 a person in the appellant’s position could be a member of a particular social group. He submitted, however, that there was insufficient evidence to show that she would be persecuted as such or subjected to article 3 ill-treatment. The immigration judge had come to the right conclusion, although for insufficient reasons. He submitted that the appellant claimed to fear harm, first of all on entry and then at a local level. He submitted that the penalty for unlawful exit because of a child would be likely to be at the lower end. The appellant’s greatest difficulty was an economic one. He submitted, however, that there were mechanisms to save her from destitution. The state locally was not supposed to let people descend into destitution. Dr Sheehan, in her reports and in her oral evidence, had given an account of the difficulties the appellant might face in obtaining employment, but to go from there to say that she would have to resort to prostitution was to go too far. When she was younger and more vulnerable she had not been abducted. She had ended up as a prostitute through naivety. Now she was aware of the position, if it were to arise again. Even if one accepted that she was to undergo a degree of economic instability, it would not mean she was going to fall into prostitution. Mr Saunders said he was not saying that there had been no persecution in the past, but it did not follow that the appellant would be persecuted in the future. It was not as if her fear was based on those who trafficked her previously wanting to get hold of her again. In relation to the question of the adequacy of protection, he submitted that the measures taken by the Chinese government did indicate a substantial effort on their part. There was clearly disagreement about the methods used by China’s authorities. Professor Palmer thought better protection was offered by a greater chance of detection in preference to savage sentences. It was clear, however, that the Chinese had cracked down in the campaign referred to as the “Strike Hard” campaign. May be it had not been as effective as intended and more money was needed, but there was an intention on the part of the Chinese authorities to deal with the problem as shown by the plan for 2008 to 2012. He submitted that the legal aid and legal counselling centres referred to in paragraph 11 of Dr Sheehan’s first report did not specifically exclude vulnerable women and children who had been trafficked and/or sexually exploited.

Ms Finch relied upon her skeleton argument. She drew our attention to the documents mentioned in it and stated that the chronology was not in dispute. In the skeleton there was a summary of the appellant’s case between paragraphs 11 and 12. It was said that she was at risk of persecution for reasons of her membership of a particular social group. Sexual exploitation and enforced prostitution and forced labour were sufficiently serious by their nature and/or repetition to amount to persecution. There was a reasonable degree of likelihood that the appellant, as a former victim of trafficking for enforced prostitution and a single unmarried woman from a rural area with a young child and no family support would, if returned to China, be re-trafficked into enforced prostitution and similar forms of sexual exploitation and/or indentured servitude either within China or another country. There was also a reasonable degree of likelihood that she and her daughter would experience treatment which would amount to persecution on account of the fact that she was a single mother. There was no practical and effective protection available to the appellant and her child in China. It would be unduly harsh to the appellant and her child to move to live elsewhere in China. She was also entitled to humanitarian protection and protection under article 3 of the ECHR. In a section dealing with membership of a particular social group, a number of authorities were referred to together with Regulation 6 of theRefugee or Person in Need of International Protection (Qualification) Regulations 2006 and the UNHCR’s Guidelines on International Protection. It was submitted that there was a serious possibility that the fact that the appellant had had a child out of wedlock at such a young age would lead to an assumption that she had been a prostitute in the past. In China there was a cultural expectation that women would be chaste and there were a number of social taboos and prejudices about sexual activity. There was strong disapproval of premarital and extramarital activity and having a child out of wedlock, which had all combined to ensure the appellant’s social exclusion. In addition, women who were discovered to be prostitutes in China were often treated as criminals, not as victims and no investigations were carried out to see whether they were victims of trafficking. Under the heading of persecution it was submitted that both the act of being trafficked and the fact of being sexually exploited and forced into prostitution was capable of constituting persecution for the purposes of the Refugee Convention.

In relation to risk on return and the likelihood of the appellant being re-trafficked into forced prostitution in the skeleton argument the appellant relied upon the reports by Dr Sheehan, a statement from Julie Barton, Poppy Project, dated 1^st September 2007, the US State Department Trafficking Persons Report of June 2008, an article by Xin Ren entitled “Violence Against Women under China’s Economic Modernisation, an article entitled, “China and Hong Kong” from a Fact-Book on the Global Exploitation, a China Human Rights fact sheet dated March 1995, a UN Inter – Agency Project on Human Trafficking: China Country page and an extract from Internal Migration in Contemporary China by D Davin dated 1999. It was submitted that the background evidence indicated that China was a source, transit and destination country for men and women trafficked for the purposes of sexual exploitation and forced labour. Domestic trafficking remained the most significant problem, with an estimated 20,000 victims; 90% of this number had been trafficked from six provinces, one of which was the appellant’s own province of Anhui. China remained on the US State Department Trafficking Tier 2 Watch List for 2008, for a fourth year which represented a deterioration of its status since the end of 2003. Trafficking in China for sexual exploitation and indentured servitude was widespread and endemic and the authorities were failing to deal with what was an increasing problem.

The NGO Report by Human Rights in China in June 2006 on the Implementation of the Convention of the Elimination of all forms of Discrimination against Women in the People’s Republic of China stated in paragraph 22 that:

“poor rural girls, already disadvantaged in education, health and employment opportunities … … fall prey to trafficking to be exploited sexually, or to serve as potential brides or labourers.”

If the appellant would have to return to her home area under the hukou system, she was from one of the poorest provinces in east China which was a major source for trafficking. If she wanted to move she would have to apply for permission which was unlikely to be given in the absence of a permanent job. If the appellant wanted to remain in an urban area she would have to do so illegally or by obtaining fake ID which would cost her money and there was a high risk that the PRC authorities would detect her fake ID. Those found with fake documentation or those without documentation in urban areas were liable to detention in centres containing some of the most vulnerable members of society. The centres were abusive in their conditions and act as a magnet for people traffickers. If the appellant were returned to China there was a serious possibility she would find herself in such a detention centre. It would be virtually impossible for the appellant to find herself accommodation and work in order to survive. Rehabilitation centres for victims of trafficking did exist, but they could accommodate 2,000 people out of an estimated 10,000 to 20,000 victims a year. The closest to the appellant’s home was several hundreds of miles away. The USSD Report described progress in 2006 in protection and rehabilitation of PRC trafficking victims as “modest” and concluded that “protection services remained temporary and inadequate to address victim’s needs”. Seeking private accommodation would pose major problems for the appellant as anyone who takes her in as a tenant might well do so with the intention of informing people traffickers in order to claim a reward. Seeking employment would place the appellant at risk of re-trafficking since in order to find employment the appellant’s only option is to approach an agency, many of which are fake and a front for people trafficking. The appellant did not have any established family networks which were the main route to finding safe employment. There was also a possibility that on her return the appellant would be fined or imprisoned as a punishment for leaving the country illegally, which would worsen her economic situation which in itself would put her at greater risk of being re-trafficked. If she were fined or sentenced to a period of detention it would publicly identify her as someone who had been involved in the sex industry, which in turn would expose her to further risk of re-involvement in the sex industry and targeting by traffickers.

In dealing with sufficiency of protection the skeleton argument relied upon the UNCHR Trafficking Guidelines dated April 2006, in paragraph 23 of which it was said where a state failed to take such reasonable steps as were within its competence to prevent trafficking and provide effective protection and assistance to victims, the fear of persecution of the individual was likely to be well-founded. The mere existence of a law prohibiting trafficking in persons would not of itself be sufficient to exclude the possibility of persecution. If the law existed but was not effectively implemented, or if administrative mechanisms were in place to provide protection and assistance to victims but the individual concerned was unable to gain access to such measures, the state may be deemed unable to extend protection to the victim, or prevent the potential victim, of trafficking. It was repeated that China was placed on the Tier 2 Watch List for the fourth consecutive year for its failure to show evidence of increasing efforts to improve comprehensive victim protection services and address trafficking for involuntary servitude. China did not prohibit the commercial sexual exploitation involving coercion or fraud, nor did it prohibit all forms of trafficking, such as debt bondage. Vice crime syndicates played a significant role in trafficking and the risk of detection and prosecution for such groups was not great as they were often under the protection of government or PRC officials. The statistics and investigations of prosecutions for trafficking cited by the Chinese government demonstrated that the government did not have trafficking under control and that this situation had deteriorated since 2003. Women in the sex industry do not seek protection from PRC officials as they often take the side of the traffickers or pimps. Trafficked women often have the most to fear from law-enforcement personnel. Sexual rehabilitation centres for victims of trafficking exist, but are inadequate for the reasons set out above.

Under the heading of “Lone Mother” it was submitted in the alternative that returning the appellant and her daughter to China would amount to a breach of the Refugee Convention and it would also be unduly harsh to expect her to relocate within China as a single mother with no family or friends to support and protect her. In particular the hukou system, coupled with her own personal circumstances, would result in her facing utter destitution and an existence below a bare subsistence level in any place or relocation. Single mothers and their offspring suffer severe and long-term discrimination in China, due to the strong disapproval of pre-marital and extra-marital sex. Despite the Marriage Act of 1982 guaranteeing children born out of wedlock the same rights as children born within marriage, in practice the former were deemed illegitimate by the Chinese government. Applications for household registration from peasants and working class mothers with limited education, money and status were routinely rejected. Denial of hukou to children born outside marriage consequently led to denial of access to health services and enrolment in education institutions. As a group, single mothers were faced with fewer job prospects, lower earning ability and limited access to housing. They had considerably diminished prospects of marriage due to the Chinese government’s One Child Policy and their low social status. The quality of opportunity for single mothers from peasant and working class backgrounds and their offspring in China to access basic resources, education, health services, food, housing, employment and the fair distribution of income had a substantial impact on their capacity to subsist. It also impeded their right to development under international law. It was submitted that the appellant as a single, unmarried woman from a rural area, with a young child and no family support, if returned to China would face economic hardship and systematic discrimination by the Chinese government and civil society, which threatens her capacity to subsist and amounts to persecution. The appellant relied upon an article entitled, “Birthrights” in the Guardian newspaper on 24^th December 2002, an article entitled “Single Chinese Mothers beset with troubles” in the China Daily for 18^th December 2004, Dr Sheehan’s first report, a paper from the Research Directorate of the Immigration and Refugee Board of Canada entitled, “China Reforms Household Registration System (Hukou) (1998 – 2004)”, dated February 2005, and a report from Human Rights in China entitled, “Not Welcome at the Party: Behind the Clean-up Of China’s Cities – A Report on Administrative Detention under ‘Custody and Repatriation’”, dated September 1999. It was submitted that if the appellant were not entitled to protection under the Refugee Convention on this basis then she should be granted humanitarian protection or discretionary leave to remain. The latter should be granted in recognition that she and her daughter would not be able to continue to enjoy private life if removed to China as they would be rendered absolutely destitute and would be also ostracised for breaking fundamental norms and practices of Chinese society.

In her oral submissions Ms Finch submitted that the appellant had been persecuted in the past. She had been trafficked as a minor. Her fear was that because of her past she would be liable to be trafficked internally or out of China in the future. It was true that at the age of 15 she had been enticed into prostitution, but a minor was not capable of consenting to being a prostitute. Ms Finch referred to Articles 34 and 35 of the United Nations Convention on the Rights of the Child by which state parties undertook to protect the child from all forms of sexual exploitation and sexual abuse and would, in particular, take all appropriate national, bi-lateral and multi-lateral measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity by which they should take all appropriate measures to prevent the abduction of the sale of all trafficking children for any purpose or in any form. She also referred to the Council of Europe Convention on Action against Trafficking in Human Beings, which in Article 4 included in the definition of trafficking in human beings trafficking by deception and the abuse of power of a person in a position of vulnerability.

Ms Finch submitted that in the case of SB the Tribunal looked at a former victim of trafficking in the context of the society that she would return to. The appellant was not able to step back into any society easily. She would be stigmatised as having previously been trafficked. An assumption would be made about her because of her return to a rural county as unmarried and with a child. At the very least she would be taken to have broken the conventions about pre-marital sex, but it would be likely that it would be presumed that she had been involved in the sex trade. Given her age there would be a presumption that she was exploited and trafficked. She would not be regarded as merely a single mother, but as someone who had allowed herself to mix with exploiters. It was plain from the background evidence that the Chinese had no concept of such women as victims. There was a certain contradiction in that Chinese society expected women to be chaste. There was a strong disapproval of sex outside marriage, yet Chinese society was rife with prostitution and was a source country for trafficking in women and children.

Ms Finch referred to the USDOS Trafficking Persons Report dated June 2008 which stated that the PRC was the source, transit and destination country for men, women and children trafficked for the purposes of sexual exploitation and forced labour. China was on the Tier 2 Watch List and had been for the last four years. Tier 3 comprised those countries of which no complaint was made. Tier 1 comprised those where protection was lacking. In 2004 Tier 2 comprised those countries largely tackling the problem. Tier 2 was subsequently divided into two. The Tier 2 Watch List included those countries making progress but not meeting on a practical level sufficient measures to combat trafficking. China had remained on the Watch List since 2004. It was not accepted that China was taking practical steps to deal with the problem. Women were being shipped out all over the world. There was a grey area between smuggling and trafficking. The appellant felt that she was paying to get out of China to improve her situation but she had been trafficked. It was not a question of China even reaching the minimum level required. The figures for 2006 to 2007 showed that few cases were tackled and sometimes the victims were punished which suggested that they were not seen as victims. Recommendations had been made in the report, namely for China to provide adequate funding to local and provincial governments to implement the new national action plan for establishing a form of victim identification procedures conduct public awareness campaigns to inform the public of the risks and dangers of trafficking. There was no system in place in China whereby vulnerable people would be identified and provision made for their rehabilitation and for teaching them new skills. The report said that China did not have a comprehensive nationwide victim protection service, although it had taken some steps to improve intra-governmental co-ordination and co-operation in vulnerable southern border provinces.

Ms Finch submitted that the absence of a comprehensive nationwide victim protection service was important in the appellant’s case because she would go back to China in a vulnerable position. Her past circumstances were not the same as for other women who may be returned. It was accepted that she was an orphan and that after her grandmother died she had no other family members. From the age of 10 to 15 she had lived as a street child. She did not develop community ties or friendships upon which she might rely. The ties that she did make pulled her into prostitution and led her to being trafficked. She had no employment experience. Due to the registration system she would go back to a rural county in a poor province where she had no land, house and could not be employed as a labourer due to her lack of experience and gender and where it was unlikely she would be employed given the level of social stigma against an unmarried woman with a child and the implication that she was or had been a prostitute. It was inconceivable that she would be wanted as a nanny since most employers wanted a nanny to devote their time to their own children.

Ms Finch acknowledged that it was the case that there was a very basic safety net at local level which the expert said was only a temporary measure until the person got on her feet. It was not clear how she would do that without an opportunity for employment in a rural county. She could only move elsewhere if she found a job. It might be possible if she were higher up the employment ladder where one could send a CV or had family connections. It was not open to this appellant. She could not turn up at the factory gate looking for employment holding the hand of a toddler. There were only three shelters where the stay was limited, even if she had a place. She was in a situation of extreme vulnerability to further exploitation. Ms Finch submitted that she was more aware than when she had been 15 years old, but older men had been duped into thinking they were being recruited for genuine employment. She submitted that having a child would not be an impediment to being re-trafficked. The child herself would be at a disadvantage. Chinese society had been happy to see the appellant on the streets collecting tins. When her grandmother died, those around her were content to see her left to her own devices. This was a society that regularly abandoned female children to their own devices.

Ms Finch was asked to deal with the subjective element on the part of someone who was returned to China on the understanding that one person might have a resolve that she would never be trafficked again whereas another may not. Ms Finch was asked to say how the Tribunal should regard the appellant. She submitted the effect on the appellant could be seen by the length of time it took for her to disclose what had happened to her, which was not surprising given the Chinese attitude towards sex. She was still only 18 and her child was 2 years old. She was very scared of being returned. From her previous life she knew what it was like to be at the bottom of the pile. She would not be resigned to live that kind of life. Faced with the question of vulnerability, she submitted that the appellant was scared and did not have a lot of life experience. When one considered the evidence of false training and recruitment, the fact that she had paid money in the past did not mean that she would recognise all scams in the future.

In relation to the government action plan she submitted that that was aspirational. As the expert said it’s achievement would depend on funding. It reflected an analysis of the weaknesses in Chinese society and its proposals were directed to what they saw were those weaknesses in “our society”. Section 2 of the Operational Measures and Division Responsibilities advocated support for poor women in rural areas and it was acknowledged that the recruitment process of job seekers, employers and job brokers should be regulated. These were people the appellant would have to rely upon. A further aim was to actively and successfully reform, monitor and educate criminals who traffic women and children to reduce the rate of re-offending. This clearly showed that the authorities believed that they were not doing enough to re-educate traffickers. When recommending that they should resolutely combat the “buyers market” for crimes of trafficking in women and children, it was recognised that there existed at the moment a buyers market. In suggesting that they should strengthen social care for trafficked women and children and help them to smoothly return and re-integrate into society, a problem was acknowledged which was a problem for the appellant. Ms Finch suggested that throughout the document was aspirational. She made reference to a Chinese government website which, in commenting on the government action plan, stated that government agencies as well as NGO representatives paid regular follow-up visits to women delivered from trafficking. They also encouraged the community to take good care of these women rather than to discard them. She submitted that the funding would be crucial and the money was just not there to implement the plan. Ms Finch took us through passages in her skeleton argument which it is not necessary to mention in any detail since we have already dealt with it.

The burden of proof is upon the appellant to show to the standard of reasonable degree of likelihood or substantial grounds for believing that there is a real risk of serious harm on return to the PRC for a Refugee Convention reason or alternatively so as to entitled her to humanitarian protection or protection under article 3 of the ECHR. Our decision must be based on the entirety of the evidence.

We bear in mind that in paragraph 120 of their judgement in NA v The United Kingdom – 25904/07 [2008] ECHR 616 the European Court of Human Rights said that in respect of reports the authority and reputation of the author, the seriousness of the investigation by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources were all relevant considerations.

We are grateful to Dr Sheehan for both the written and oral evidence which she has presented on behalf of the appellant. As a researcher and teacher of contemporary Chinese studies and as a result of her visits to the PRC she clearly has a familiarity with Chinese society which of course is helpful in the compilation of her reports. In her oral evidence she told us that on her last visit to China she spent time examining documents which might well have given her a degree of expertise assessing the genuineness of documents. We did have the impression, however, that more generally her expertise lay in assembling items of background material which provided the basis for her expressions of opinion, rather than having an expertise which gave her the confidence to be able to predict what was likely to happen in a given situation. The disadvantages of such an approach are several. In the first place a misreading of the background material may distort the value of Dr Sheehan’s opinion. An example of this lay in the fact that in paragraph 9 of her first statement Dr Sheehan said that the appellant might find herself in a Custody and Repatriation centre which typically housed some of the most marginalised groups in society. This suggestion was adopted in paragraph 36 of the skeleton argument submitted on behalf of the appellant. Dr Sheehan, however, failed to observe that the background material demonstrates that Custody and Repatriation centres were abolished in 2003. It was only in cross-examination when it was put to her that these centres had been abolished that she acknowledged this to be the case. Had this not occurred the Tribunal could very easily have been misled.

A further example was the opinion of Dr Sheehan that women would only be employed to work the land if all the men had migrated or would only help out as a member of a family. In her article entitled “40 Million Missing Girls” dated 7^th October 2005, Laurel Bossen dealt with the three basic explanations for Chinese gender discrimination the first of which was that sons were necessary for heavy farm labour. She said that rural women had contributed to a large proportion of the farm labour in China for nearly 50 years. The fact that many men had left farming to women and migrated to towns and cities in search of better incomes since the 1970s undercut their “heavy labour” argument. It is apparent, therefore, that women in rural areas had carried out farm labour even before the migration of men to towns and cities in the 1970s. Furthermore it is interesting to note that in the HRIC report entitled “Implementation of the Convention on the Elimination of all Forms of Discrimination against Women in the People’s Republic of China dated June 2006 it is stated that unmarried rural women participated in non-farming work at the same rates as men.

Yet a further example is provided by Dr Sheehan’s opinion that the hukou system would force the appellant to return to the place from which she came in Anhui province. The most recent detailed objective material relating to the hukou system with which we were provided was the Refugee Board of Canada paper, published in February 2005, dealing with the reforms of the hukou system between 1998 and 2004. Set against one of the conclusions in that paper that the hukou reforms have meant that the government can no longer restrict migrants’ entrance to the cities her opinion, as we shall see, seems to be over rigid and outdated.

Another disadvantage is that on a number of occasions when Dr Sheehan was invited to express an opinion she was not able to do so. One example of this was when she was asked by Ms Finch what would happen to the appellant on return at the border. Her reply was that the COIR explained that we did not know. It was only when pressed by Mr Saunders that she conceded that as the appellant had no means it was possible she might not have to pay a penalty for having migrated illegally. Another example was when Dr Sheehan described the situation of unmarried women having children as a muddy area in view the fact that an unmarried woman could not obtain a birth permit. There is background evidence, however, to which we shall refer in due course which describes the situation of a number of unmarried mothers who have regularised the position of their children. We do not make an adverse assessment of Dr Sheehan but merely point to these matters as an illustration of the limitation on the value of her evidence, since she herself does not have such a familiarity with what actually happens in the PRC to enable her to offer an explanation of what is likely to happen in any given situation.

Paragraph 1.06 of the Country of Origin Information Report on China dated 1^st June 2008 indicates that the CIA World Fact Book, dated 15^th April 2008, recorded that China’s population numbered 1,330,044,605. It said that in its Country Profile for China, dated August 2006, the US Library of Congress noted, “60%–62% of the population lived in rural areas in 2004, whilst 38% lived in urban settings. …” Various items of background evidence confirm the opinion of Dr Sheehan that the trafficking of women for prostitution in China is a serious problem. In the section dealing with the trafficking of persons, the US State Department Report on Human Rights Practices dated 11^th March 2008 stated:-

“Domestic and cross-border trafficking continued to be significant problems, although the exact numbers of persons involved could only be estimated due to a huge itinerant population of approximately 150 million. The MPS reported about 3,000 cross-border trafficking cases but stated this figure is decreasing by approximately 20% every year. NGOs estimated the number of victims trafficked internally each year was between 10,000 and 20,000.”

The passage under the heading “Women” said:-

“Although prostitution is illegal, experts estimated that there were between 1.7 and 5 million women involved in prostitution in the country. The commercialisation of sex and related trafficking in women trapped tens of thousands of women in a cycle of crime and exploitation and left them vulnerable to disease and abuse. According to state-run media, one out of every five massage parlours in the country was involved in prostitution with the percentage higher in cities. Up to 80% of prostitutes in some areas had hepatitis.”

US State Department “Trafficking in Persons Report” dated June 2008 stated:-

“The People’s Republic of China (P.R.C.) is a source, transit, and destination country for men, women, and children trafficked for the purposes of sexual exploitation and forced labour. The majority of trafficking in China occurs within the country’s borders, but there is also considerable international trafficking of P.R.C. citizens to Africa, Asia, Europe, Latin America, the Middle East, and North America, which often occurs within a larger flow of human smuggling. Chinese women are lured abroad through false promises of legitimate employment, only to be forced into commercial sexual exploitation, largely in Taiwan, Thailand, Malaysia, and Japan.”

It is clear from the International Labour Organisation Report of the CP-TING Project that the province from whence the appellant comes, Anhui, is a ‘sending’ province in China. The report described the project’s aim to make migration channels safe for girls who wanted to leave their rural villages operating in the three ‘sending’ provinces in Central China (Anhui, Henan and Hunan) which had a combined population of 223 million inhabitants.

As a matter of perspective the figure of 20,000 cases of trafficked women per year represents less than .002% of the population of China. Applied to the population of the United Kingdom it would mean that there were virtually no trafficked women.

It is not necessary for us to consider the reasons for the growth in prostitution in China which was explained by Dr Sheehan, or the increase in trafficking. Suffice it to say that her book “Children in the Sex Trade in China” published by Save the Children, Sweden, Julia O’Connell Davidson stated that most had followed one of three routes into prostitution. Some had migrated in search of other forms of work, but had been unable to find jobs, or to live on the wages from other work. They thus became vulnerable to pressure from others to enter the sex industry, or to making a decision to engage in sex work. Some had been tricked and trafficked into the sex trade when they sought to migrate for factory, farm, restaurant, hotel or domestic work. Some had chosen to migrate into sex work because it was more highly rewarded than any occupation available to uneducated and even many educated women.

There is disagreement in the background material as to whether China is fulfilling its responsibilities to deal with trafficking of women. The United Nations Inter-Agency Project on Human Trafficking in the Greater Meikong sub-region in dealing with China says this:-

“The Chinese government takes its duty and responsibilities to prevent and prohibit domestic and cross-border human trafficking seriously and fulfils its commitment to the international community. Positive measures will continue to be initiated in China including alleviating poverty, increasing chances for employment, improving legislation and law enforcement, public education, and building a long-term social mechanism to prevent trafficking.”

In March 1995 the Christusrex China Human Rights Fact Sheet, dealing with the abduction and trafficking of women, acknowledged that the PRC government had enacted various laws to combat the sale of women, but the statistics released by the government did not reliably indicate the scale of the problem. It can be seen from the Criminal Law of the People’s Republic of China (1997) that there are a considerable number of articles in the Criminal Code which provide for substantial penalties for offences relating to the sexual exploitation of women. The criticism of the Chinese authorities in dealing with the problems of trafficking does not centre on failing to criminalise activities relating to the trafficking of women or failing to provide for severe penalties, apart from that contained in the US State Department Trafficking in Persons Report dated June 2006 which stated that the Chinese definition of the term “trafficking” did not include acts of forced labour, debt bondage, coercion, involuntary servitude or offences committed against male victims. In this connection it can be seen from Article 240 of Chapter 4 of the Chinese Criminal Law that seducing, tricking or forcing abducted women into prostitution, selling abducted women to others who in turn force them into prostitution is a criminal offence. Criticism rather centres on the lack of the effective prosecution of offenders, a failure to deal with the complicity of state officials, the lack of provision of adequate funding to local and provincial governments to fund the new additional action plan, the lack of formal victim identification procedures, provision for their protection and rehabilitation and the failure to conduct broad public awareness campaigns to inform the public of the risks and dangers of trafficking. The US Department of State Trafficking Persons Report dated June 2008 states as follows:-

“The Government of the P.R.C. does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. Nevertheless, China is placed on Tier 2 Watch List for the fourth consecutive year for its failure to provide evidence of increasing efforts to combat human trafficking from the previous year, particularly in terms of punishment of trafficking crimes and the protection of Chinese and foreign victims of trafficking. Victims are sometimes punished for unlawful acts that were committed as a direct result of their being trafficked – such as violations for prostitution or immigration/immigration controls. … Additional challenges facing the P.R.C. Government include the enormous size of its trafficking problem and the significant level of corruption and complicity in trafficking by some local government officials. Factors impeding progress in anti-trafficking efforts include tight controls over civil society organisations, restricted access of foreign anti-trafficking organisations and the government’s systemic lack of transparency.”

In our view Dr Sheehan has validly criticised the statistics put forward by the Chinese authorities. She referred to the article by Xin Ren, “Violence against Women under China’s Economic Modernisation” stating that according to government reports, between 1990 – 1991, 65,236 people were arrested for involvement in the sale of women and children. From 1993 – 94, another 50,000 traffickers were arrested in a further 33,100 cases. The authorities reported that 27,000 people, including 2,700 children, were rescued. However, even the government admitted that this was just the tip of the iceberg concerning the problem of women trafficking. The China Rights Forum in their report on “The Property of Men: The Trafficking and Domestic Abuse of Women” dated 30^th June 1995 gives slightly different figures. The official report stated that in 1991 and 1992 the Public Security Bureau (PSB) uncovered 50,000 cases of trafficking, arrested 70,000 people and rescued 40,000 women and children. The figures released in 1993 and 1994 reported 24,751 women and 2,731 children rescued and 49,839 traffickers arrested. The report went on to say that the total number of women abducted and sold may be double the official numbers, according to one Chinese journalist who covered women’s issues for a number of years.

The United Nations Inter-Agency Project on Human Trafficking in the Greater Meikong Sub-Region in dealing with the arrest and prosecution of traffickers, painted a fairly positive picture of the role of the Ministry of Public Security (MPS) in the national fight against trafficking in women and children. The report says that from 1991 to 2000, MPS organised four campaigns to combat trafficking women and children in selected areas across the country. From 2001 to 2003, the police cracked down on 20,360 cases of trafficking in women and children, arrested 22,010 criminals, and rescued 42,215 trafficked women and children. Local procuratorates approved 7,186 arrest cases (sic) of trafficking in women and children, arresting 13,995 suspects and approved 226 arrest cases of buying trafficked women and children, arresting 416 suspects. 8,442 cases of trafficking women and children were brought to court by public prosecution, which involved 15,000 defendants. 177 cases of trafficked women and children were brought to court by public prosecutions, which involved 358 defendants. The report, however, does not deal with more recent figures which suggest a far less optimistic picture.

We agree with the comment by Dr Sheehan that the figures given in the US Department of State Report on Human Rights Practices for 2007 do not provide any data on the outcome of the 3,371 cases investigated or on convictions for traffic offences generally. It is the case that the Department of State Trafficking in Persons Report dated June 2008 states that MPS reported investigating 2,375 cases of trafficking of women and children in 2007 which was significantly lower than the 3,371 cases it cited in 2006. The report said these statistics were likely to have been based on China’s definition of the term “trafficking”. We agree with Dr Sheehan suggestion that the statistics suggested that fewer cases were investigated and fewer victims rescued than in 2001 – 2003. She criticised in our view, with good reason, the statement attributed to Mr Zhang, the Deputy Minister of Public Security, on 15^th December 2007 taken from the Beijing Youth Daily and reported human trafficking.org “China improves effort to combat trafficking through regional mechanisms”, that 2,500 trafficking cases were solved in 2006 constituting 805– 90% of the total and that no law enforcement personnel were involved in any trafficking cases. Dr Sheehan’s view was that she did not accept that 2,500 cases, if that figure were accurate, could be known to constitute 80 to 90% of the total trafficking, given a minimum annual number of victims of 10,000 to 20,000 and she would require further details and corroboration of the claims made in the article before accepting it as evidence of a breakthrough in China’s anti-trafficking efforts, given the weight of evidence to the contrary. The suggestion that no law enforcement personnel were involved in any trafficking cases was belied by the report of the release of hundreds of slave labourers in summer 2007 from the notorious brick kilns in Shanxi in which there was collusion between the police and labour protection officials and the kiln owners. That they were was also borne out by the article by Emily E Schuckman, quoted by Dr Sheehan, entitled, “Anti Trafficking Policies in Asia and the Russian Far East: A Comparative Perspective” published in the winter of 2006 to the effect that:-

“Corrupt law enforcement officers and government officials were a barrier to combating prostitution and trafficking. Officials were bribed by pimps or brothel owners or offered perks when they themselves visited the brothel. These actions indicated the silent encouragement of prostitution and, intentionally or not, trafficking. Prostitution was an embarrassment to the Communist Party, which touted its ability to eliminate socialproblems. Party officials often opted to just avoid the issue.”

The US State Department Report for 2008 also noted that despite its general anti-corruption measures, the PRC government had not demonstrated concerted efforts to investigate, prosecute and punish government officials for complicity in trafficking.

We also accept Dr Sheehan’s criticism of the Chinese government, for failure to make sufficient provision for transfer, training and rehabilitation centres for victims. She acknowledged that provision had been made in areas that were major trafficking “sending” areas namely in Kunming, in Yunnan province, Chengdu, Sichuan province and Xuzhou in Jiangsu province, but these centres were only able to accommodate 2,000 women out of an estimated minimum of 10,000 to 20,000 victims a year. In our view given the scale of the problem there is clearly insufficient provision for the rehabilitation of victims of trafficking.

In Bagdanavicius and Anor, R (On the Application of) v Secretary of State for the Home Department [2003] EWCA Civ 1605, the Court of Appeal held that sufficiency of state protection, whether from state agents or non-state actors, meant a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-treatment of which the claimant for asylum had a well-founded fear. The effectiveness of the system provided was to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there was a risk, not just punishment of it after the event. In the light of our assessment of the situation we take the view that although the problem of trafficking in China is a large one in terms of overall numbers, given the small numbers involved in relation to the size of the female population of China, it cannot be said that the deficiencies in the system of state protection in themselves give rise to a risk of serious harm from traffickers for women and girls generally. Where, however, in a given case it can be established that there is a real risk of a woman or girl being forced or coerced into prostitution, at the present time it is unlikely that it could be successfully argued that this would be so despite there being in place an adequate system of state protection. Each case, however, must be decided on its own facts. We hesitate to express a definitive view because China is a vast country and it may be, for example, that in a particular part of China the efforts to eliminate trafficking are determined and the level of complicity between state officials and traffickers is low.

A consideration of this appeal requires some reference to the Chinese household registration system (HRS) known as the “hukou” system which was implemented in China in the 1950s to improve migration control and economic planning. The paper from the Immigration and Refugee Board of Canada dealing with the “hukou” system dated February 2005, makes it plain that the status of a person’s hukou was characterised as agricultural (rural) or non-agricultural (urban). Traditionally there were numerous social benefits and privileges associated with an urban hukou, including the provision of basic food, better employment, high incomes, subsidised housing, the right to free education, medical care, social security and pensions. Although those benefits had been significantly reduced in the last decade, there were still important opportunities reserved for urban hukou holders, particularly in relation to better housing, education and employment. The situation led academics and human rights activists to describe the HRS system as being discriminatory in nature because it restricted the movement of rural hukou holders by requiring them to obtain temporary permits to reside in cities. These temporary permits, however, did not entitle their holders to the benefits and rights enjoyed by regular urban hukou holders, and until the reforms of 2003, migrants who did not possess these permits were considered illegal, could be detained, fined and sent back to their permanent resident locations. Internal migrants, particularly from rural areas constituted the vast majority of detainees under the Custody and Repatriation system until it was abolished in 2003.

According to one source quoted in 2005, in the last six years the process of obtaining temporary resident permits had become considerably easier and simpler. National reforms of the hukou system included allowing those of less than 18 years of age to choose to inherit their hukou status from either parent, facilitating hukou conversions for spouses previously separated by hukou restrictions, prioritising hukou conversions for aged people who depended on their children for care, as well as facilitating the hukou conversion of investors and professionals and their family members. In 2000 the government began to eliminate quotas limiting hukou registrations in small cities and towns and in March 2001 a State Council circular ordered small cities of less than 100,000 inhabitants to grant hukous to residents with fixed jobs and homes beginning in October 2001. In August 2003 the Ministry of Public Security (MPS) approved additional measures aimed at easing travel restrictions, particularly in western areas of China which included allowing educated people wishing to work in these regions the option of changing their permanent hukou registration to their area of work and allowing parents to register their new born’s birth in either parents’ place of permanent residence. The elimination of the Custody and Repatriation Scheme in 2003 had a significant impact on the HRS (Household Registration System), for example, many provincial and municipal governments throughout China sped up their HRS reforms. State council regulation ordered that migrant workers no longer be arrested for not possessing the right papers and ordered police to provide urban residency documents to any migrant who found employment.

The report indicated that the application of HRS reform policies promulgated at the national level varied widely among the different provinces and cities, making generalisations impossible. According to Beatriz Carrillo, one of the report’s sources, “liberalisation” of the HRS was more likely in smaller urban areas, whereas the larger urban centres tightly managed their HRS. Despite the regional variations, the qualifications required to obtain urban registration tended to be similar and often consisted of having fixed residence and stable employment (usually one year on the job) in an urban area. During 2003 several provinces and major cities began to speed up local hukou reforms prompted by the outcry resulting from the March 2003 death of Sun Zhigang, a 27-year old university graduate, in the custody of Gangzhou policemen, after he was arrested for not carrying identity documents. This case was referred to in evidence by Dr Sheehan. Beijing, for example, introduced further reforms in the summer of 2003, by issuing a new type of hukou registration called “The Beijing Employment and Residence Permit”, which would give its holders, “rights to housing, education, investment, social and medical insurance and a driver’s licence”. In order to be issued with such a permit, however, a person must be residing in Beijing, be employed, have a Bachelor’s degree and two years of employment experience. That meant according to the South China Morning Post that only a select few would qualify.

Under the section dealing with the human rights implications of the hukou reforms the report says that although the hukou reforms have facilitated population movement and created opportunities for rural migrants, academics and human rights activists who have analysed the effect of these reforms on contemporary Chinese society generally agree that the reforms have failed in eliminating the social gap between urban and rural residents. The report said that Beatriz Carrillo explained that one of the problems with the hukou reforms was that, even though the government could no longer restrict migrants’ entrance to the cities, it still could, through the hukou system, establish who was and who was not an “urban citizen”. The report stated that the hukou booklet is usually required for school registration in local public schools, and when applying for an original or a replacement personal identity card. Although it was not required for medical care, it could be used for identification purposes anywhere that an identity document was required. According to Fei-Ling Wang, another source, if a member of a household travelled abroad with the original hukou in his/her possession, the family back home would have no difficulty in obtaining a duplicate hukou booklet.

The report said that according to Beatriz Carrillo, individuals in China did not need to use their hukou on a regular basis. They could use their national identity card at the bank and at most government departments, even while travelling within China. According to Wang, another of the report’s sources, persons caught with a fake hukou in their possession were punishable by fines only, but those caught producing and selling fake documents may be prosecuted. Hukou remained a key identity document in China and those who required fake hukous were usually rural migrants attempting to improve their access to social benefits by acquiring urban hukous. A Guangdong survey, reported in an article by Anita Chan entitled “Exploitation of Migrant Workers in China’s Export Manufacturing Sector” dated 9 December 2004, referred to in the report, found that 80% of overseas owned companies in China were not concerned about whether or not the documents used by job applicants were forged because it had no effect on productivity.

The reforms also included the introduction in 1985 of the Temporary Residence Certificate which allowed internal migrants wishing to reside in urban areas for more than three months to register legally with local hukou authorities. The new stipulation was important in that it tacitly allowed “spontaneous” migration into urban areas, whereas previously, temporary work had to be “arranged between the recruiting urban work units and the supplying communes”. It did not, however, entitle their holders to the urban benefits associated with the regular urban hukou and often in addition to the TRC migrants were required to obtain additional documents, such as work permits, family planning permits and to pay administration and application fees in order to work in urban areas. Also in 1985 the photo-equipped resident identity card (RIC), also referred to as the citizen identity card, was adopted. According to one author, the personal identity card has a national serial number, carries personal information as well as the hukou location of its holder, but does not carry the discriminatory insulting reference to hukou categorisation. The RIC shifted the focus of population registration from the household to the individual and from one book per household to one card per person. Beatriz Carrillo stated that in the last two to four years the personal identity card had become the most important identification document in China. The report says that hukou issuance was the responsibility of the PSB. People can travel relatively freely within China, in order to legally change permanent residence, one still needs approval from the Public Security Bureau (PSB). Household registration is issued by the PSB office in the place of permanent hukou registration which is sometimes not the place of residence. If a request to change a person’s permanent hukou residence is approved, the individual must notify the PSB office in the original hukou zone to have his/her name deleted, as well as notify the PSB in the new hukou zone, where his/her name would be registered. Those who travel overseas for more than a year must cancel their hukou when applying for their passports and may restore their previous hukou upon returning to China.

The report states that according to a source, “Today’s China”, people can travel relatively freely. Generally “the worst punishment that an illegal migrant (floater) faces is forcible return to his/her home town or village”. This is often a losing battle as the floater simply returns to the area from which they were removed. In addition, the reforms introduced in 2003 have greatly limited repatriation to “paupers and criminals”, while making it relatively easy for ordinary migrant workers to get legal, albeit temporary, urban registration.

The effect of the background material before us on this topic is borne out by the material before the Tribunal in JC (double jeopardy: Art 10 CL) China CG [2008] UKAIT 00036. In that case the Tribunal received evidence from Dr Michael Dillon, a Senior Lecturer in Chinese History in the department of East Asian Studies in the University of Durham who had been teaching and researching on the PRC for over 30 years and who had made research visits to many regions of China. In his report he explained to the Tribunal that the hukou system of personal identification was currently being reformed and was no longer an effective tool of social control. In oral evidence he agreed that there were 80-120,000,000 migrant workers in China some of whom had hukou registration where they worked and some of whom did not. There were competing views as to whether it should be retained or not. It could not be ruled out when considering internal relocation. The Tribunal also received evidence from Professor Fu, an Associate professor at Hong Kong University, who as an insider had access to the Peking University database. In one of his reports he said that to work legally a person should have a hukou but in practice the hukou was less significant than in the past. He noted that almost 10% of China’s working population worked away from their home area without a proper hukou, (100 million out of a total of 1,330 million). They were not monitored by the authorities and although they lacked the legal right to be in the cities where they lived, they remained nevertheless, for as long as they wished. He said hukou now mainly functioned as a means of delivery of education and medical care for hukou owners rather than as an effective mechanism of state control.

In her submissions to the Tribunal in JC the appellant’s representative drew attention to the US State Department Report for 2006, dated March 2007, which dealt with the need for hukou in rather less favourable terms, stating that it was particularly difficult for peasants from rural areas to obtain household registration in more developed urban areas. The report went on to state, however, that some major cities maintained programmes to provide migrant workers and their children access to public education and other social services free of charge. Many cities and provinces continued experiments aimed at abolishing the distinction between urban and rural residents in household registration documents.

The tribunal in JC also noted that in her evidence Dr Sheehan said that border police used computerised systems into which passport details was manually entered, which would bring up any visa information but not hukou information.

Overall it appears to us in the light of the reforms of the hukou system, particularly those described in the Immigration and Refugee Board of Canada paper, that a returned trafficked woman would not be obliged by the authorities to return to her place of origin.

The article entitled “Girls for Sale: Preventing Trafficking within China” dated 25^th November 2005 referred to a new project to prevent trafficking in children and youth for labour exploitation which was begun in April 2004 as the result of co-operation between the Chinese authorities and the ILO International Programme on the Elimination of Child Labour. The project started in Guizhou and was called the “CP-Ting Project”. The article said that the project aimed to make migration channels safe for girls that wanted to leave their rural villages. It focused on adolescent girls and young women and put them in contact with decent employers that offered decent jobs. The article mentioned that through a partnership with the All-China Women’s Federation (ACWF), the CP-Ting Project had mobilised a range of relevant ministries, at both national level and in five selected provinces, to develop a comprehensive set of interventions to prevent trafficking girls and young women, monitoring progress and document lessons learnt. The article stated that within the sending provinces, project partners were preparing for large-scale interventions in nine target counties, with a population from 300,000 to 1 million. The project and its partners would increasingly work on offering policy advice, contributing to the development of agreements on safe migration between sending and receiving provinces, procedures to licence amongst recruitment agencies, and a national policy plan to prevent trafficking. We take the view that it cannot be said that the Chinese authorities are oblivious to the problems of trafficked women returning to China and are taking positive steps to assist them.

The background evidence shows that the number of single mothers in China is growing. The article “Single Chinese mothers beset with trouble” in the China Daily dated 18 December 2004 describes the difficulties of two single mothers in particular and says that education is the most important issue for single mother families. The final paragraph of the report says that more people have realised the difficulties faced by single parent families, especially single mother families. Beijing and Tianjin have both set up single parents clubs to offer psychological counselling and parenting courses to single parents – including the divorced and widowed. The article by Howard W French entitled, “Single Mothers in China Forge a Difficult Path” dated 6^th April 2008 refers to the cases of three single mothers. It says that in a society where until quite recently pre-marital sex was often punished, the issue of single motherhood had been slow to enter the public arena, but now a new awareness of the issue was raising questions about the status of women in China as well as other rights issues like the hukou, or residents permit, a central tool of population control passed down from the Maoist era that restricted movement by linking people with towns of their birth. The article said that official statistics on the number of single mothers were unavailable in China but, with pre-marital sex now commonplace and women’s earning power growing, particularly in the wealthy cities of the east, experts believed their numbers were rising fast, albeit from a small base. It quoted the case of one single mother who said that she checked out Shanghai’s Public Security Bureau’s website and discovered an item indicating that children born outside of marriage could apply for hukou. The article said that every province and major city had some leeway in how to apply the rules, although it did say for peasants and working-class mothers without much education, money or standing, choices could seem limited. In our view this evidence shows that hukou can be obtained for the children of single mothers. Very much depends upon where the application is made. The two articles quoted the experiences of six single mothers. In none of the cases was it suggested that it was thought that the women concerned had been prostitutes or had been trafficked. In these circumstances we are not satisfied that by reason of having a child a returned trafficked woman would be identified as someone who had been trafficked into prostitution.

A Human Rights in China report dated 30^th June 1995 states that the principal reasons for discrimination against trafficked women were that their families felt that this had caused them a loss of face, particularly the fact that the women had had sex with their buyers, regardless of whether this was forced upon them. The BBC News Report dated 28^th April 2008 says that according to state media, women who have been forced to work as prostitutes often faced prejudice if they return to their home villages. We take the view, however, that it is unlikely that a returned trafficked woman would be obliged to return to her place of origin or to her family, notwithstanding that her position would be significantly better if she had family support.

We accept the evidence of Dr Sheehan that although in China legally there is not such a thing as an “illegal child” i.e. a child born out of an “illegal pregnancy”, and the law prohibits discrimination against children born outside marriage, nonetheless, as is stated in the reply to the Country of Origin Information Request, children of illegal pregnancies may not be registered or treated equally until their parents pay the fines imposed as punishment. Dr Sheehan conceded in cross-examination, however, that the fine to which a person who had no land and had no means was liable might very well be waived. This view is supported by the Extended Response to Information Request by the Immigration and Refugee Board in Ottawa, in dealing with Article 53 of the Criminal Law in relation to fines, which said that if a person truly had difficulties in paying because he had suffered irresistible calamity, consideration might be given according to the circumstances to granting him a reduction or exemption. The Ministry of Public Security (MPS) has stated that Chinese trafficking victims returning from abroad were not punished or fined. Even if the All-China Women’s Federation offers only ad hoc intervention on their own initiative to protect women from punishment we see no reason why a returned trafficked woman should not herself approach the ACWF on return to China. Dr Sheehan conceded that the Chinese authorities were intent upon rescuing and rehabilitating trafficked women and girls. Given the efforts which are genuinely being made by the Chinese authorities to assist trafficked women we are not satisfied that it can be assumed that such a woman on return to China would be punished either for having left illegally or for having had a child without approval, particularly if she has no means.

We cannot accept the evidence of Dr Sheehan to the effect that women would only be employed to work the land if all the men had migrated or would only help out as a member of a family. In her article entitled “40 Million Missing Girls” dated 7^th October 2005, Laurel Bossen dealt with the three basic explanations for Chinese gender discrimination the first of which was that sons were necessary for heavy farm labour. She said that rural women had contributed to a large proportion of the farm labour in China for nearly 50 years. The fact that many men had left farming to women and migrated to towns and cities in search of better incomes since the 1970s undercut their “heavy labour” argument. It is apparent, therefore, that women in rural areas had carried out farm labour even before the migration of men to towns and cities in the 1970s. Furthermore it is interesting to note that in the HRIC report entitled “Implementation of the Convention on the Elimination of all Forms of Discrimination against Women in the People’s Republic of China dated June 2006 it is stated that unmarried rural women participated in non-farming work at the same rates as men. Despite the economic downturn, which is affecting the PRC as well as other parts of the world, we take the view that there are opportunities, albeit limited, for returned trafficked women to obtain work in the PRC both in urban and rural areas.

As regards the risk of a returned trafficked woman facing persecution or serious harm by virtue of facing poor socio-economic conditions we have no difficulty in accepting that claims of this kind can in principle succeed. In its recent determination in AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091 the Tribunal observed:

“Albeit holding that claims for protection against refoulement based on dire socio-economic circumstances are normally not decisive when considering Article 3 ill-treatment, the Strasbourg Court has not excluded that in certain extreme circumstances, such circumstances could give rise to a violation of a nonderogable right: see below paras 86-88. Further, as has been made clear by the Court on many occasions (e.g. in Kalashnikov v Russia [2002] ECHR 596) and by UK courts and the Tribunal, for ill-treatment to arise under Article 3, it does not necessarily have to be intentional or deliberate: see R (On the appellant of Adam v Secretary of State for the Home Department [2005] UKHL 66; [2006] 1 ACat [55]. Hence, whilst there will always be heavy factual obstacles in the way of a finding that socio-economic circumstances can constitute persecution, there is no reason of principle why a claim of this kind cannot succeed.”

In her second report, in a reference to the cost of decent urban accommodation Dr Sheehan said that the appellant would scarcely be able to afford it on either limited state benefit or a low wage from the type of job that she could realistically expect to get. She conceded, however, in cross-examination that the Chinese state at a local level had an obligation not to allow people to become destitute. She conceded that the Chinese state had an obligation to house the homeless and she said that they would not let people starve. Our attention has not been drawn to any background material confirming this opinion but on the other hand no background material has been drawn to our attention which demonstrates that this is not the case. Therefore despite our reservations about the evidence of Dr Sheehan we accept her evidence that this is the case. In these circumstances we do not accept that a returned trafficked woman would face utter destitution and an existence below a bare subsistence level.

Our general conclusions may be summarised as follows: