Chinese mother-of-two wins asylum appeal over fear of persecution

The Upper Tribunal had upheld a decision of the First-tier Tribunal to dismiss the woman’s appeal, but in doing so the Upper Tribunal set aside a finding-in-fact to the effect that the appellant was “highly likely” to be forced to undergo sterilisation under China’s strict family planning policies.

The Inner House of the Court of Session ruled that the Upper Tribunal “erred in law” in overturning the findings and that it should have allowed the appeal.

Lord Menzies, Lady Clark of Calton and Lord Glennie heard that the appellant Yan Zheng, 28, entered the UK on a valid student visa and passport in 2007 and claimed asylum in 2014 based on her fear of persecution were she to be returned to China, on account of her breach of China’s family planning policies, having had two children born out of wedlock.

Forced sterilisation

By letter dated 9 April 2015 the Secretary of State for the Home Department refused her asylum claim and she appealed to the FTT, but having found that the appellant would if returned to China have to undergo sterilisation before she could register her children, the judge concluded that, nonetheless, the appellant’s situation did not engage either the Refugee Convention or the European Convention on Human Rights (ECHR) and her appeal was dismissed.

A subsequent appeal to the UT was also refused, though on different grounds, but the UT set aside the decision of the FTT and substituted therefor a decision that the appellant’s appeal to the FTT against the decision of the Secretary of State was dismissed “on all available grounds”.

The Court of Session granted her leave to appeal and the before the court was whether the UT was entitled to open up and overturn the finding in fact made by the FTT, in paragraph 35 of its decision, that if she were returned to China the appellant would be required to undergo sterilisation before she could register her children.

“Hukou”

“Hukou” is the name given to the Chinese household registration system, which is used to control internal migration between urban and rural areas and all social benefits and obligations derive from it, including entitlement to a birth permit, social security, contraception and medical care, education, housing, land and pension provision.

The FTT heard expert opinion evidence from an academic, Stephanie Gordon, who said the appellant would be compelled into being sterilised against her will by reason of legal and bureaucratic pressures and the need to get her children registered for a hukou – as failure to do so would mean she and her children would suffer disadvantages in terms of access to key services such as health and education.

On behalf of the appellant it was submitted that had it upheld the FTT’s findings in fact in paragraph 35, as it should have done, the UT would have been bound to allow the appeal both against the decision of the FTT and, in consequence, against the decision of the Secretary of State refusing the appellant’s asylum claim.

On behalf of the Secretary of State it was argued that the UT had been entitled to find that the FTT had erred in law, both procedurally and substantively, in making its findings in fact, and the UT had therefore been entitled to reconsider those findings of fact and had given adequate reasons for the findings which it itself had made.

Error in law

However, the appeal judges allowed the appeal and quashed the Home Secretary’s decision to refuse the appellant’s claim for asylum.

Delivering the opinion of the court, Lord Glennie said: “The starting point for any consideration of this case is that the FTT clearly accepted Ms Gordon’s evidence that, if returned to China, the appellant would probably have to undergo sterilisation before she could register her children. This is dealt with in paragraph 35 of the FTT decision where the judge makes a finding of fact to this effect.

“The judge’s reasoning thereafter to the effect that she could avoid ‘forced’ sterilisation and therefore avoid the risk of persecution by simply agreeing to be sterilised – reasoning which both parties agreed could not be supported – all proceeded on the basis of this finding that she would have to undergo sterilisation before she could register her children.

“The UT overturned this finding of fact. It found, in effect, that there was no satisfactory evidence to the effect that the appellant was likely to be forced to undergo sterilisation (or insertion of an IUD) in order to register her children.

“The only relevant question for this court is whether the UT was entitled to embark upon that exercise at all. As we have explained, that depended upon it being established that the FTT erred in law in reaching its findings in fact in paragraph 35 or failed to give legally adequate reasons. For the reasons given above, we do not find it so established. If follows that the UT itself erred in law in opening up and, in effect, reversing those findings.

“For those reasons we have come to the view that the appeal must succeed. It was not in dispute that if the fact findings of the FTT judge in paragraph 35 of her decision stood, then the appellant was entitled to succeed. The consequence of that is that the appeal from the FTT should have been allowed, with the result that the appeal from the decision of the Secretary of State should also have been allowed. We shall give effect to that in our order.”