Falun Gong practitioner loses appeal against immigration decision

Zuo Hui Xie raised a petition for judicial review of the decision dated 24 December 2018, which was refused by Lord Tyre and then confirmed on application for review of the refusal by Lord Drummond Young. He argued that both judges had erred in considering that the application had no real prospect of success.

The appeal was heard in the Inner House of the Court of Session by Lord Malcolm, Lord Woolman, and Lord Pentland.

Prism of religion 

The appellant claimed to be a practitioner of Falun Gong, a Chinese spiritual movement in which adherents perform ritualistic exercises to gain physical and spiritual renewal. The movement was proscribed by the Chinese government in 1999 which regards it as an “evil cult.”

The appellant was refused asylum in July 2003, with fresh representations again being refused in 2014. In April 2018 he was discovered to be working illegally in a restaurant in Livingston, after which time he submitted further representations to the Secretary of State for the Home Department.

The SSHD refused to take these further submissions as a fresh claim under the immigration rules. In its decision letter, which took the 2003 decision as its starting point, it concluded that the new information did not create a realistic prospect of success before an immigration judge.

The decision maker noted, in particular, an Immigration Tribunal decision from 2005 in which it found that the large majority of Falun Gong practitioners who practised it in privacy and with discretion did not experience material difficulties with the authorities, with the risk escalating only if the practitioner took part in activities such as public practice or the recruitment of new members.

The appellant had stated that he practised on his own, and no evidence was provided of him practising in public. It was therefore concluded that his fear of persecution was not well-founded and he did not qualify for humanitarian protection.

On appeal, counsel for the appellant submitted that the SSDH had wrongly viewed Falun Gong through the prism of religion, whereas the Chinese authorities imputed the holding a political opinion to its practitioners. It was observed that the Supreme Court had held in RT (Zimbabwe) v SSHD (2013) that a person may be at risk of persecution on the grounds of imputed political opinion.

Not a political activity 

The opinion of the court was delivered by Lord Pentland. On the risks to the appellant, he said: “We are satisfied that there was no evidence to show that the appellant was at any material risk of persecution. There was no suggestion that he practised Falun Gong in public. The country guidance was that those who practised individually, like the appellant, were not subject to persecution by the authorities in China.”

He continued: “The appellant put forward no evidence that he would be treated differently to any other person who practised Falun Gong only in private. He submitted no evidence that there was any reason, peculiar to his individual circumstances, to show that his private Falun Gong activities would expose him to any significant risk of persecution. It follows that the SSHD was entitled and in our view correct to hold that there was no evidence to show that the appellant would be at risk on return to China. We can find no error of law in the approach taken to this question in the decision letter.”

Of the relevance of the RT (Zimbabwe) case, he said: “We do not consider that pressure from the authorities to cease practising Falun Gong in private could constitute interference with a core human right. As a matter of common sense we do not see how having to refrain from participating publicly in a non-political activity like Falun Gong (whatever view the authorities may take of the activity) could be said to provide a basis for claiming interference with the freedom to hold a political belief.”

He continued: “Whilst there is undisputed evidence that the Chinese authorities perceive Falun Gong as a political movement, it appears to us that there was no material before the SSHD to justify the view that it truly amounts to a political activity.”

For these reasons, the interlocutor of Lord Drummond Young was upheld, and the appeal refused.