Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 41

P926/16

OPINION OF LORD MULHOLLAND

In the cause

XL

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Pursuer:  Winter;  Drummond Miller LLP

Defender:  Pirie;  Office of the Advocate General

 

9 March 2017

Introduction
[1]        This is a Judicial Review of a decision of the respondent dated 29 June 2016 refusing to treat the petitioner’s further submissions as a fresh claim.

 

Immigration history
[2]        The immigration history, which was not disputed by the respondent, is taken from the decision letter which is 6/4 of the inventory of productions (para 5) and the petition.  The petitioner is Chinese.  She was born on 25 October 1987.  She entered the United Kingdom (UK) on 5 May 2010 as a student with a visa valid until 21 January 2013.  On 13 November 2011 her first daughter was born.  On 12 February 2013 she claimed asylum which was refused on 5 March 2013.  Her second daughter was born on 18 March 2013.  She appealed against the decision to refuse her asylum claim which was dismissed by the First‑Tier Tribunal on 7 June 2013.  She applied to the Upper Tribunal for permission to appeal and this was refused.  Her appeal rights became exhausted by 5 August 2013.  She made further submissions in terms of paragraph 353 of the Immigration Rules on 1 October 2013 (6/1 of the inventory of productions).  Her third daughter was born on 20 November 2015.  On 26 February 2016 the respondent served an enforcement notice on the petitioner by post.  No fresh evidence was submitted and her further submissions of 1 October 2013 were refused on 7 April 2016, the respondent refusing to treat this as a fresh claim.  A pre‑action protocol letter was submitted on 13 May 2016 on the basis that the respondent, in reaching her decision, had not considered the information from Dr Sheehan in her report (6/2 of the inventory of productions).  The respondent wrote on 18 May 2016 agreeing to reconsider the decision of 7 April 2016.  The decision was reconsidered and on 29 June 2016 the respondent issued the decision letter (6/4 of the inventory of productions) refusing to treat the petitioner’s further submissions as a fresh claim. This decision is the subject of this review.  A pre‑action protocol letter was sent to the respondent on 8 September 2016 (6/5 of the inventory of productions).  The respondent wrote on 19 September 2016 rejecting the contents of the letter.  The respondent’s letter of 19 September 2016 is 6/6 of the inventory of productions. The petitioner does not now seek to reduce the terms of this letter.

 

The petitioner’s further submissions
[3]        The petitioner has three children, all born in the UK and all under 18 years.  She fears that she will be at real risk of forced sterilisation if returned to China for having breached the family planning policy.  The further submissions are set out in a letter to the respondent from the petitioner’s solicitors dated 1 October 2013.  In this letter the petitioner relied on an expert report by Dr Sheehan dated 29 August 2013 (6/2 of the inventory of productions) which was prepared for another, unrelated, claimant who came from Fujian province in China, the home province of the petitioner.  The report stated that: (1) unmarried women in China are not eligible to give birth to children;  (2) there is firm evidence from family planning authorities in Fujian province that couples who have children born abroad are treated in exactly the same way as couples who have children in China, and thus are subject to the same penalties for unauthorised births, namely, sterilisation;  (3) there is evidence that local family planning officials, including Fujianese, actively pursue migrant women who have breached family planning regulations to enforce penalties, including sterilisation;  (4) such campaigns occur annually;  (5) the subject of the report, who had one unauthorised child, would be the target of the family planning officials and given the fact that the petitioner has had unauthorised children, she would be a target for family planning officials also;  and (6) the petitioner would be at serious risk of being forced to undergo sterilisation. The petitioner particularly founds on paragraphs 25, 26, 30 and 32 of the report.  As a result the respondent should grant her asylum.

 

The decision letter
[4]        The decision letter is as commonly structured.  It extends to twenty pages. Paragraphs 1 – 4 are introductory and paragraph 5 sets out the petitioner’s immigration history. Paragraphs 6 and 7 summarise the basis of the reconsideration of the decision dated 7 April 2016.  In relation to Fujian province the petitioner averred that Dr. Sheehan’s report focuses on Fujian province and that the country guidance referred to in AX (Family Planning Scheme) China CG [2012] UKUT 00097 (IAC) is given in very general terms for the whole of China, and Fujian province is not specifically considered.  Paragraph 8 summarises Dr Sheehan’s report dated 29 August 2013.  In paragraph 10 the respondent confirms that anxious scrutiny has been applied to the report by Dr Sheehan and the respondent is satisfied that Dr Sheehan is a country expert for China.  However, in considering the report it is noted that it is almost three years old and was not compiled for the petitioner but for a female who is believed by the petitioner to have similar circumstances.  Paragraph 11 refers to and extracts the latest country information on the ‘one child policy’ in China which is taken from the Country of Origin Information Service (COIS) guidance dated July 2015 (which draws on AX, supra).  This notes that (1) breach of the Chinese family planning scheme is a civil matter, not a criminal matter;  (2) family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child;  (3) there are regular national campaigns to bring down the birth rates in provinces and local areas which have exceeded the permitted quota.  Over quota birth rates threaten the employment and future careers of birth control officials in those regions, and where there is a national campaign, it can result in large scale, unlawful crackdowns by local officials in a small number of provinces and areas.  In such areas, during such large scale crackdowns, human rights abuses can and do occur, resulting in women and, sometimes, men, being forcibly sterilised, and pregnant women having their pregnancies forcibly terminated.  The last such crackdown took place in Spring 2010;  (4) in general, for female returnees, who have permitted quotas of children, there is no real risk of forcible sterilisation or forcible termination in China.  However, if a female returnee who has already had her permitted quota of children is being returned at a time when there is a crackdown in her ‘hukou’ area (hukou is a record in a government system of household registration required by law in mainland China and determines where citizens are allowed to live), accompanied by unlawful practices such as forced abortion or sterilisation, such a returnee would be at real risk of forcible sterilisation, or, if she is pregnant at the time, of forcible termination of an unauthorised pregnancy .  Outside these times, such a female returnee may also be able to show an individual risk, notwithstanding the absence of a general risk, where there is credible evidence that she, or members of her family remaining in China, have been threatened with, or have suffered, serious adverse ill-treatment by reason of her breach of the family planning scheme; and (5) internal relocation will, in almost all cases avert the risk in the ‘hukou’ area.  However, internal relocation may not be safe where there is credible evidence of individual pursuit of the returnee or her family outside the ‘hukou’ area.

[5]        Paragraph 12 refers to the judgment of the First‑tier Tribunal on 7 June 2013.  It should be noted that no information from Dr Sheehan was presented to the tribunal in support of the petitioner’s case and the petitioner relied on the Country guidance case, AX, supra, in furtherance of her appeal.  It was not suggested, either, that there was more recent country information which would have entitled the Tribunal to depart from AX, supra, or that there were special circumstances relating to the petitioner. An extract from the judgment refusing the petitioner’s appeal is as follows:

“As I have already indicated the Respondent dealt at some length with AX in the decision letter and set out clear reasons why she came to the conclusion that the Appellant would not be at risk on return. In my view Ms Hussain  has not produced any evidence or made any submissions which would entitle me to come to a conclusion other than the conclusion reached by the Respondent and for that reason my conclusion is that the Appellant would not be at risk of ill treatment on her return to China as a result of having breached the One Child Policy which at the end of the day is a civil matter in China and not a criminal matter.”

 

[6]        At paragraph 13 it was noted that the petitioner was from Fuqing city, Fujian province and that the woman referenced in Dr Sheehan’s report is from the area of rural Fuzhou in Fujian province. At paragraph 14 the respondent records that the petitioner has failed to provide any fresh evidence that she would be at risk of persecution upon return to China. With regard to the risk of sterilisation, which lies at the heart of the petitioner’s case, paragraph 15 notes that Dr Sheehan’s report relates to a woman whose circumstances were not identical to the petitioners.  At paragraph 16 it is noted that there is no real risk of a refusal to register a child and quoting from the Country Report on Human Rights Practices for 2014 it is also noted that in the small number of provinces and areas, during large‑scale crackdowns, human rights abuses can and do occur, resulting in women, and sometimes men, being forcibly sterilised.  However, it was noted from the latest COIS information that, in general, for female returnees, there is no real risk of forcible sterilisation in China. The respondent recorded that:

“It is accepted that you are a female returning to China who has already had your permitted quota of children. You have however, failed to demonstrate that you are being returned at a time when there is a crackdown in your hukou area which is accompanied by unlawful practices. You have also failed to demonstrate that if there is no current crackdown in your area, that you and your family are at risk on return to China or that your remaining family in China have been threatened with or have suffered ill-treatment by reason of a breach of the Family Planning Scheme.”

 

[7]        With regard to internal relocation the petitioner had submitted, drawing on the contents of paragraph 12 of Dr Sheehan’s report, that the woman mentioned in her report would face risk wherever she went in China which could not be solved by internal relocation. However, the respondent, applying AX, supra, concluded that where a real risk exists in the ‘hukou’ area, it may be possible to avoid the risk by moving to a city. The country evidence did not indicate a real risk of effective pursuit of internal migrant women leading to sterilisation taking place in their city of migration.  Therefore, internal relocation would in almost all cases avert the risk in the ‘hukou’ area. It was accepted by the respondent that internal relocation may not be safe where credible evidence exists of individual pursuit of the returnee or her family outside the ‘hukou’ area, however, the petitioner had failed to provide any evidence to this effect.  The respondent at paragraph 21 under the section headed ‘In Summary’ confirms the refusal of the petitioner’s claim. She stated:

“Given the findings of the Immigration Judge and after repetitive and thorough consideration of the case law AX, the Country Expert Report from Dr. Sheehan has been thoroughly considered, however it remains the opinion of the Secretary of State  that you have not demonstrated that you would be at risk of persecution, or treatment contrary to Article 3 of the ECHR because of your claimed breach of the Family Planning Scheme on your return to China and we continue to maintain the Immigration Judge’s findings above. Although it is accepted that the report is in regards to an individual with similar circumstances to yourself and from the same province of China, this report is not directly in relation to you and your case. Notwithstanding this, for the reasons provided above, it is the opinion of the Secretary of State that this report would not create a realistic prospect of success should it be presented before an Immigration Judge.”

 

Grounds of review
[8]        The petitioner applies for judicial review of the decision on the grounds set out in statements 14 and 15 of the petition.  Statement 14 relates to the issue of forced sterilisation and statement 15 relates to the issue of internal relocation.  The petitioner avers that the respondent erred in law at paragraph 16 of the decision letter by failing to take account and assess the material factors set out in paragraphs 25, 26, 30 and 32 of the report by Dr Sheehan.  Paragraph 25 refers to the occurrence of campaigns and individual abuses on an annual basis and not just in 2010.  Paragraph 26 refers to reports which post-date AX, supra, showing that campaigns and enforcement measures are known to have taken place in at least 20 of China’s 31 provinces in the past three years.  Fujian is not one of the 11 provinces where campaigns and enforcement measures have not taken place.  Paragraph 30 states that the claimant would be a target for sterilisation and paragraph 32 states that the claimant would be at more risk as targets are set on the permanently ‘hukou’ registered population when in reality there is a much smaller population actually living in the area targeted.  This information, post AX, supra, indicates that crackdowns and abuses occur on an annual basis and undermines the findings at paragraph 17 of the decision letter. Paragraph 14 of the petition records that,” there is no suggestion that the petitioner’s family or her partner’s family suffered any difficulties.”  Paragraph 15 states that the petitioner erred at paragraph 18 of the decision letter by arriving at the finding, that the petitioner has failed to provide any credible evidence of individual pursuit of the returnee outside the home area, which is not supported by the evidence.  In particular, paragraph 12 of Dr. Sheehan’s report records that Fujian family planning officials do pursue migrants who have breached the family planning policy.

 

The legal framework
[9]        The relevant immigration rule is found in paragraph 353 of the Immigration Rules. This provides: 

“353.   When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision-maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.  The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.  The submissions will only be significantly different if the content: 

 

(i)         had not already been considered; and

(ii)        taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.  This paragraph does not apply to claims made overseas.”

 

The correct approach to considering paragraph 353 is set out in the case of WM (DRC Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495 (approved by Dangol v Secretary of State for the Home Department [2011] CSIH 20).  At paragraph 11 of the Judgment, the Court of Appeal stated that the question was not whether the Secretary of State for the Home Department thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return.  Anxious scrutiny has been described as ensuring that every factor favourable to the petitioner has been properly taken into account, see MN v Secretary of State for the Home Department 2014 SC (UKSC) 183 per Lord Carnwath of Notting Hill at paragraph 31).  The Home Secretary can treat her own view of the merits as a starting point for that inquiry, but it is only a starting point in the consideration of the question that is distinctly different from the exercise of the Home Secretary making up her own mind.  In addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, the Home Secretary has to satisfy the requirement of anxious scrutiny.  This case also confirmed that the correct approach for the court on judicial review is that the determination of the Home Secretary is only capable of being impugned on Wednesbury grounds, but that a decision will be irrational if it is not taken on the basis of anxious scrutiny, see also ABC v Secretary of State for the Home Department [2013] CSOH 32 per Lord Bannantyne at paragraph 11.  With regard to asylum the necessary conditions include inter alia that there is a well-founded fear of persecution in the country of origin, see R (Bagdanavicius) v Secretary of State for the Home Department [2004] 1 WLR 1207 per Auld LJ at para 41, and the applicant cannot avoid the risk of persecution in his country of origin by internal relocation, see article 8.1 of Council Directive 2004/83/EC.

 

Submissions for the Petitioner
[10]      The petitioner submitted that the report by Dr Sheehan set out very strong grounds in support of the claim.  However, the factors which weighed heavily in favour of the petitioner were not taken into account.  This included evidence, some of which post-dated AX, supra, that campaigns and individual abuses occur annually and not just in 2010, and AX, supra, was wrong so to conclude.  In any event AX, supra, did not deal with the situation in Fujian province beyond the generality of China as a whole and the claimant in AX, supra, did not come from Fujian province.  The information at paragraphs 30 and 32 of Dr Sheehan’s report to the effect that the petitioner would be a target for sterilisation was not considered and dealt with by the respondent in the decision letter.  This information, which was cogent evidence, provided very strong grounds for departing from AX, supra, the country guidance case for China.  No material findings were made in the decision letter to explain why the decision maker did not go beyond AX, supra.  The fact that Dr Sheehan’s report was prepared for another person did not detract from the fact that the report contained information of general application in relation to forced sterilisation in China. Dr. Sheehan had agreed ex post facto that the report could be used by the petitioner (6/11 of the inventory of productions).  Although Dr Sheehan’s report is dated 29 August 2013, the information contained in the report is not undermined by the information relied on by the respondent.  Albeit Dr Sheehan was subject to criticism by the court in AX, supra, this does not mean that the criticism would continue to apply to her in the present case.  Having regard to Dr Sheehan’s report there would be a more than fanciful prospect of success before an Immigration Judge and the respondent erred in concluding otherwise.  With regard to internal relocation the finding in paragraph 18 of the decision letter that internal relocation will, in almost all cases (unless there is evidence of individual pursuit), avert the risk in the ‘hukou’ area is not supported by the evidence.

Submissions for the Respondent
[11]      The respondent submitted that it was clear from the decision letter and the letter from the petitioner’s solicitors dated 1 October 2013 that the respondent considered Dr Sheehan’s report.  She expressly said so in the letter.  She would not have been able to make the findings in the decision letter without having regard to the report.  This ground of review, in order to succeed, requires the court to infer that she did the opposite of what she stated in respect of these two documents.  There is no requirement for the respondent to deal with every piece of evidence and it is sufficient to show the basis on which she acted.  The decision letter read whole does not leave the informed reader in any doubt as to the basis of her decision.  The evidence does not establish that the petitioner faces a real risk of forced sterilisation if returned to China.  The report from Dr Sheehan was old, written for another person with different circumstances to that of the petitioner and there was no basis to depart from AX, supra, the country guidance case for China.  Esto the respondent erred in law, the error was not material.  Paragraphs 25, 26, 30 and 32 of Dr Sheehan’s report would not give the petitioner a realistic prospect of succeeding in an appeal to a tribunal that there is a real risk that the petitioner would be subject to forced sterilisation if returned to China.  Dr Sheehan’s position was that it was not possible to know which areas of China are about to launch such a campaign or where a campaign is currently ongoing and the campaigns described by Dr Sheehan are provincial and not national.  It had not been demonstrated that Dr Sheehan’s report contains information which would justify a departure from the country guidance case in AX, supra.  Although some documents which post-date AX, supra are cited in her report there is no explanation provided as to how those documents differ from the evidence which was before the Upper Tribunal in AX, Supra.  The report was unsigned and written for another individual whose circumstances were different to the petitioners, no confirmation was before the decision maker that Dr Sheehan was content that the report could be used by the petitioner, no information was provided on what, if anything, the Tribunal made of the report when considering the case of the person for whom the report was written, and the report was out of date, being almost three years old when considered by the respondent.  There were problems with Dr Sheehan’s evidence in AX, supra, such that the Tribunal would be likely to place little weight on her report.  With regard to internal relocation, Dr Sheehan’s report does not provide evidence of individual pursuit of the petitioner or her family.  Esto the report does provide such evidence, it is insufficient to justify a departure from AX, supra, as it is not dissimilar to the evidence which was before AX, supra, which concluded that there is generally no risk of individual pursuit.  The report pre-dates AX, supra, and given the problems with Dr Sheehan’s evidence, little weight would be attached to her report.

Decision
[12]      With regard to whether the respondent took into account the report by Dr Sheehan, including and in particular paragraphs 25, 26, 30 and 32, the respondent expressly stated in the decision letter that she had considered the report.  Paragraph 8 states that careful re consideration had been given to the Country Expert Report prepared by Dr Sheehan.  The paragraph summarises Dr Sheehan’s claims taken from the report. Paragraph 10 records that anxious scrutiny has been applied to Dr Sheehan’s report.  The report’s vintage is commented upon (nearly three years old at the time of the decision) as is the subject of the report, another female from Fujian.  This information would have been obtained from reading the report.  Paragraph 11 records that the report had been considered.  Paragraph 21 records that the report had been thoroughly considered and again records that the report was not written for the petitioner, “…this report is not directly in relation to you and your case.”  The decision letter also records at paragraphs 5, 6 and 7, that consideration has been given to the letter from the petitioner’s solicitors dated  1 October 2013, which made further submissions on behalf of the petitioner.  This letter quotes extensively from Dr Sheehan’s report.  The letter quotes from paragraphs 7, 8, 11, 12, 15, 18, 19, 20, 21, 24, 25, 26, 28, 30, 32, 33, 34, 37, 43, 70, 71, 73, 74, 75 and 76.  This, of course, included the paragraphs (25, 26, 30 and 32) which the petitioner specifically avers were not taken into account by the respondent.  In addition to paragraphs 8, 10 and 21, the decision letter also makes specific references which could not have been made without consideration of Dr Sheehan’s report, in particular the references at paragraphs 13, 15, and 18. Paragraphs 25 and 26 of Dr Sheehan’s report deals with the issues of campaigns and crackdowns (referred to in paragraph 26 as excessive enforcement measures).  Paragraph 16 of the decision letter refers to this issue. Before reaching a conclusion, it refers to the Country Report on Human Rights Practices for 2014 and the latest COIS guidance dated July 2015, both of which post-date AX, supra, and Dr Sheehan’s report.  The conclusion reached, following an analysis of the relevant information, that the petitioner had failed to demonstrate that she was being returned when there was a crackdown in her ‘hukou’ area which was accompanied by unlawful practices, covers the same territory as paragraphs 25 and 26 of Dr Sheehan’s report.  Paragraph 30 of Dr  Sheehan’s report refers to the risk of sterilization of the person for whom the report was written.  Paragraph 4 of Dr Sheehan’s report summarises her conclusions which include reference to the issue dealt with in paragraph 30. Dr Sheehan’s conclusion in relation to paragraph 30 is quoted at paragraph 15 of the decision letter.  Paragraph 32 of Dr Sheehan’s report deals with the issue of family planning officials struggling to meet quotas in an area with a high rate of out migration and the effect that this would have on the petitioner if she was returned to this ‘hukou’ area.  The paragraph contains information that the subject of Dr. Sheehan’s report comes from a rural area which is part of Fuzhou.  This is referred to in paragraph 13 of the decision letter.  The reason why the respondent reconsidered her decision of 7 April 2016 was that it was asserted that she had not considered Dr Sheehan’s report.  It would be astonishing if in reconsidering the decision of 7 April 2016, Dr Sheehan’s report was not considered.  Putting all these factors together it is clear to me that the respondent has considered Dr Sheehan’s report, including paragraphs 25, 26, 30 and 32, in reaching her decision.  She has considered Dr Sheehan’s report, which was almost three years old at the time of the decision and written for another individual, the letter from the petitioner’s solicitor, the country guidance case of AX, supra, (judgment handed down on 16 April 2012), the COIS guidance dated July 2015 and the Country Report on Human Rights Practices for 2014.  The COIS guidance refers to a variety of sources which post-date Dr Sheehan’s report including the US Department of State’s Country Report on Human Rights Practices for 2014, a report from the Guardian newspaper dated January 2014 (signalling the possibility of a shift towards a more liberal attitude in family planning laws in Hubei province) and an article from ‘Women News Network’ in June 2013 relating to unmarried mothers, ‘hukou’ registration and the family planning laws.  The respondent in reaching her decision has given consideration to this information and provided rational and cogent reasons for her decision.  An informed reader would be in no doubt as to the reasons for the decision.

[13]      Even if I am wrong and the respondent has erred in law, I would not regard the error as material.  The respondent held that the petitioner would not face a real risk of forced sterilisation unless she was returned to China when there is a crackdown in her ‘hukou’ area. In order for the error to be material Dr Sheehan’s report would require to provide the petitioner with a realistic prospect of establishing before a tribunal that she would be at real risk of forced sterilisation, if returned to China.  In my opinion the tribunal would not so conclude. Firstly, there are problems with the report.  When considered by the respondent when reaching her decision, it was unsigned.  It related to another individual and there was nothing in the report to indicate that it was of general application and valid for the petitioner’s case.  There was nothing before the respondent from Dr Sheehan to indicate that she was content for it to be used in the petitioner’s case. It is the case that ex post facto Dr Sheehan has confirmed this in an e mail.  However, at the time the decision was made there was no indication from Dr Sheehan that she was content for her report to be used, particularly when the report was almost three years old.  The dangers of using such material in this way were highlighted in the case of Slimani v The Secretary of State for the Home Department [2001] UKIAT 9.  There the Immigration Appeal Tribunal at paragraph 20 of the judgment, when dealing with a report prepared for another individual which was about three years old, stated:

“We would add that all too often reports prepared for a specific case are relied on in other cases in which appellants from the same country are represented by the same advisers. This should not happen unless the report is stated to be general and to be valid for all cases or the author is asked to confirm that he is content for it to be relied on. Apart from anything else, conditions change and views which may have been valid when the report was written might not be 12 months later.”

I agree with these observations and would add to them that it is discourteous for a report to be used without the authority and knowledge of the author and person to whom it related. The report could contain sensitive personal information which is put into a public court without their knowledge.  The report may require to be redacted of sensitive information and the user would not know what should be redacted.  The user is acting on the interests of their client and not the author of the report or the individual to whom it relates.  In this case authority for it to be used was given by Dr Sheehan ex post facto.  However, it was conditional on it being redacted.  The report considered by the respondent was unredacted. Further, there are issues of copyright and payment and the danger for the author that a report which is significantly out of date may express wrong conclusions and views, on current information. This could result in official or judicial criticism which could affect the author’s professional reputation. Further, no information was given to the respondent about what, if anything, the tribunal made of Dr. Sheehan’s report. This omission still persisted when the case called before me. As already commented on, the report was almost three years old when considered by the respondent and it is clear from the respondent’s decision letter that there was more up to date objective information about this issue.  In fact, this was an issue for which she received criticism in AX, supra, (paragraphs 164 and 165).

[14]      Dr Sheehan gave evidence in AX, supra.  There were a number of problems with her evidence in this case.  The Upper Tribunal stated that:  (1) she did not have an expertise which gave her the confidence to be able to predict what was likely to happen in a given situation, (paragraph 73);  (2) she made a number of unsourced, speculative suggestions, such as, that the appellant would be likely to be subject to forced sterilisation, from which she departed in her oral evidence ( paragraphs 76 and 85);  (3) she appeared to exaggerate the risks to the appellant (paragraph 164);  (4) she lacked sufficient objectivity (paragraph 165);  and (5) relied on outdated evidence (paragraphs 164 and 165).  These are trenchant criticisms and whilst it is the case that they can be addressed in future cases there was little before me to suggest that they had been addressed in this case.  In fact, it would appear from the terms of her report that she has repeated some of her errors, criticised in AX, supra.  At paragraphs 85 and 161 she is criticised for providing evidence outwith her area of expertise in respect of the legal enforcement of the Social Upbringing Charge (SUC).  Despite this criticism, she has given such ‘expert evidence’ in her report (paragraphs 18 and 23). She has also engaged in speculation in her report (paragraphs 23 and 32).  Further her report is not dissimilar to the evidence presented by her and others which led the Upper Tribunal in AX, supra, to conclude that the last crackdown by the authorities was in 2010 and that unlawful practices were exceptional.  Despite this she is critical of these findings in her report (paragraph 25). However, these are the findings of the Upper Tribunal and are authoritative unless very strong grounds, supported by cogent evidence, are adduced, see SG [Iraq] v SSHD [2012] EWCA Civ 940 per opinion of Stanley Burton LJ.  I do not regard Dr Sheehan’s report as providing the necessary cogent evidence and strong grounds to justify departure from the Country Guidance case of AX, supra.  The campaigns referred to in Dr Sheehan’s report (paragraphs 25 and 26) are provincial and at paragraph 28 she accepts that it is not possible to know which areas of China are about to launch a campaign or are in the middle of one at any given time.  The petitioner’s counsel submitted that AX, supra, did not deal with the province of Fujian and as a result provided the cogent evidence and strong grounds to justify departure from it.  I reject this submission. Firstly, the full title of AX is AX (Family Planning Scheme) China CG.  Its name suggests it applies to China as a whole.  Secondly, paragraph 10 of the judgment of the court states that the appeal was identified for country guidance on the operation of the Chinese family planning system, in particular the risk of persecution or serious harm on return to China affecting Chinese citizens living abroad.  This again suggests that it applies to China as a whole.  Thirdly, Fujian is selected as one of the provinces the court considered when summarising the provincial population and family planning (PFP) regulations (paragraph 39).  Fourthly, paragraphs 61 – 66 specifically consider Fujian province.  Fifthly, documents on Fujian province are considered by the court (paragraph 20 and appendix A) and finally, the report contains many references to this province (appendices D, E and F) and appendix E has a specific section on this province.  There is nothing in the letter intimating the fresh claim to highlight the material differences in Dr Sheehan’s report with AX, Supra, and the respondent was not asked to disapply the country guidance case of AX, supra, (see YH Petitioner [2016] CSOH 72 per Lady Wolffe at paragraph 116).  For the foregoing reasons, I conclude that the error is not material and would make no difference to the outcome of an appeal. The respondent was correct to conclude that there was no realistic prospect of succeeding before a tribunal in establishing that the petitioner is at real risk of forced sterilisation if returned to China.

[15]      With regard to internal relocation the respondent held that the petitioner had failed to show that she had a realistic prospect of establishing before a tribunal that she could not escape the risk of forced sterilisation if returned to China by internal relocation (paragraphs 18 and 21).  The ground of review challenges the respondent’s finding at paragraph 18 of the decision letter that internal relocation will, in almost all cases, avert the risk of forcible sterilisation in the ‘hukou’ area, unless there is credible evidence of individual pursuit.  The challenge is based on paragraph 12 of Dr Sheehan’s report.  However, paragraph 12 and the entirety of Dr Sheehan’s report does not make any points or provide any evidence in relation to the petitioner.  This is not surprising given that the report was written for another individual.  There is therefore no credible evidence of individual pursuit of the petitioner or her family in Dr Sheehan’s report.  Further, approaching paragraph 12 on the basis that it sets out a generality applicable to the petitioner, the high point of the paragraph for the petitioner is the statement therein that there is evidence that local family planning officials actively pursue migrant women who have breached regulations in order to enforce penalties, and a Fujianese family planning official has stated publicly that this is policy with regard to women migrating away from Fujian.  Footnote 17 provides the source for this assertion which is a news report from ‘bioscholar’ on 1 November 2011.  This, of course, pre‑dates the decision in AX, supra. Dr Sheehan makes the point in paragraph 12 that the forced sterilisation risk could not be averted by internal relocation, since the same system, with local variations, applied everywhere. However, this point was made by her in her evidence in AX, supra, (paragraph 90) and rejected by the Upper Tribunal at paragraph 191(14) of the judgment.  Paragraph 191(14) states as follows:

“(14) Where a real risk exists in the ‘hukou’ area, it may be possible to avoid the risk by moving to a city. Millions of Chinese internal migrants, male and female, live and work in cities where they do not hold an ‘urban hukou’.  Internal migrant women are required to stay in touch with their ‘hukou’ area and either return for tri-monthly pregnancy tests or else send back test results.  The country evidence does not indicate a real risk of effective pursuit of internal migrant women leading to forcible family planning actions, sterilisation or termination, taking place in their city of migration. Therefore, internal relocation will, in almost all cases, avert the risk in the hukou area.  However, internal relocation may not be safe where there is credible evidence of individual pursuit of the returnee or her family, outside the ‘hukou’ area. Whether it is unduly harsh to expect an individual returnee and her family to relocate in this way will be a question of fact in each case.”

 

As there was no evidence presented of individual pursuit and no cogent evidence providing very strong grounds to allow the respondent to depart from the country guidance in AX, supra, the decision of the respondent on internal relocation is rational and sound. I also note that it is based on the most up to date COIS guidance. Even if I am wrong, I would not regard the error as material as I cannot envisage any tribunal finding in favour of the petitioner on this issue on the material referred to in paragraph 12.  The conclusion seems to me to be speculative and not based on cogent and up to date evidence.  I therefore reject this ground of review also.

[16]      For the foregoing reasons I refuse the petition and repel the petitioner’s plea in law and sustain the respondent’s second plea in law.  I reserve meantime all questions of expenses.

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 41

P926/16

OPINION OF LORD MULHOLLAND

In the cause

XL

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Pursuer:  Winter;  Drummond Miller LLP

Defender:  Pirie;  Office of the Advocate General

 

9 March 2017

Introduction
[1]        This is a Judicial Review of a decision of the respondent dated 29 June 2016 refusing to treat the petitioner’s further submissions as a fresh claim.

 

Immigration history
[2]        The immigration history, which was not disputed by the respondent, is taken from the decision letter which is 6/4 of the inventory of productions (para 5) and the petition.  The petitioner is Chinese.  She was born on 25 October 1987.  She entered the United Kingdom (UK) on 5 May 2010 as a student with a visa valid until 21 January 2013.  On 13 November 2011 her first daughter was born.  On 12 February 2013 she claimed asylum which was refused on 5 March 2013.  Her second daughter was born on 18 March 2013.  She appealed against the decision to refuse her asylum claim which was dismissed by the First‑Tier Tribunal on 7 June 2013.  She applied to the Upper Tribunal for permission to appeal and this was refused.  Her appeal rights became exhausted by 5 August 2013.  She made further submissions in terms of paragraph 353 of the Immigration Rules on 1 October 2013 (6/1 of the inventory of productions).  Her third daughter was born on 20 November 2015.  On 26 February 2016 the respondent served an enforcement notice on the petitioner by post.  No fresh evidence was submitted and her further submissions of 1 October 2013 were refused on 7 April 2016, the respondent refusing to treat this as a fresh claim.  A pre‑action protocol letter was submitted on 13 May 2016 on the basis that the respondent, in reaching her decision, had not considered the information from Dr Sheehan in her report (6/2 of the inventory of productions).  The respondent wrote on 18 May 2016 agreeing to reconsider the decision of 7 April 2016.  The decision was reconsidered and on 29 June 2016 the respondent issued the decision letter (6/4 of the inventory of productions) refusing to treat the petitioner’s further submissions as a fresh claim. This decision is the subject of this review.  A pre‑action protocol letter was sent to the respondent on 8 September 2016 (6/5 of the inventory of productions).  The respondent wrote on 19 September 2016 rejecting the contents of the letter.  The respondent’s letter of 19 September 2016 is 6/6 of the inventory of productions. The petitioner does not now seek to reduce the terms of this letter.

 

The petitioner’s further submissions
[3]        The petitioner has three children, all born in the UK and all under 18 years.  She fears that she will be at real risk of forced sterilisation if returned to China for having breached the family planning policy.  The further submissions are set out in a letter to the respondent from the petitioner’s solicitors dated 1 October 2013.  In this letter the petitioner relied on an expert report by Dr Sheehan dated 29 August 2013 (6/2 of the inventory of productions) which was prepared for another, unrelated, claimant who came from Fujian province in China, the home province of the petitioner.  The report stated that: (1) unmarried women in China are not eligible to give birth to children;  (2) there is firm evidence from family planning authorities in Fujian province that couples who have children born abroad are treated in exactly the same way as couples who have children in China, and thus are subject to the same penalties for unauthorised births, namely, sterilisation;  (3) there is evidence that local family planning officials, including Fujianese, actively pursue migrant women who have breached family planning regulations to enforce penalties, including sterilisation;  (4) such campaigns occur annually;  (5) the subject of the report, who had one unauthorised child, would be the target of the family planning officials and given the fact that the petitioner has had unauthorised children, she would be a target for family planning officials also;  and (6) the petitioner would be at serious risk of being forced to undergo sterilisation. The petitioner particularly founds on paragraphs 25, 26, 30 and 32 of the report.  As a result the respondent should grant her asylum.

 

The decision letter
[4]        The decision letter is as commonly structured.  It extends to twenty pages. Paragraphs 1 – 4 are introductory and paragraph 5 sets out the petitioner’s immigration history. Paragraphs 6 and 7 summarise the basis of the reconsideration of the decision dated 7 April 2016.  In relation to Fujian province the petitioner averred that Dr. Sheehan’s report focuses on Fujian province and that the country guidance referred to in AX (Family Planning Scheme) China CG [2012] UKUT 00097 (IAC) is given in very general terms for the whole of China, and Fujian province is not specifically considered.  Paragraph 8 summarises Dr Sheehan’s report dated 29 August 2013.  In paragraph 10 the respondent confirms that anxious scrutiny has been applied to the report by Dr Sheehan and the respondent is satisfied that Dr Sheehan is a country expert for China.  However, in considering the report it is noted that it is almost three years old and was not compiled for the petitioner but for a female who is believed by the petitioner to have similar circumstances.  Paragraph 11 refers to and extracts the latest country information on the ‘one child policy’ in China which is taken from the Country of Origin Information Service (COIS) guidance dated July 2015 (which draws on AX, supra).  This notes that (1) breach of the Chinese family planning scheme is a civil matter, not a criminal matter;  (2) family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child;  (3) there are regular national campaigns to bring down the birth rates in provinces and local areas which have exceeded the permitted quota.  Over quota birth rates threaten the employment and future careers of birth control officials in those regions, and where there is a national campaign, it can result in large scale, unlawful crackdowns by local officials in a small number of provinces and areas.  In such areas, during such large scale crackdowns, human rights abuses can and do occur, resulting in women and, sometimes, men, being forcibly sterilised, and pregnant women having their pregnancies forcibly terminated.  The last such crackdown took place in Spring 2010;  (4) in general, for female returnees, who have permitted quotas of children, there is no real risk of forcible sterilisation or forcible termination in China.  However, if a female returnee who has already had her permitted quota of children is being returned at a time when there is a crackdown in her ‘hukou’ area (hukou is a record in a government system of household registration required by law in mainland China and determines where citizens are allowed to live), accompanied by unlawful practices such as forced abortion or sterilisation, such a returnee would be at real risk of forcible sterilisation, or, if she is pregnant at the time, of forcible termination of an unauthorised pregnancy .  Outside these times, such a female returnee may also be able to show an individual risk, notwithstanding the absence of a general risk, where there is credible evidence that she, or members of her family remaining in China, have been threatened with, or have suffered, serious adverse ill-treatment by reason of her breach of the family planning scheme; and (5) internal relocation will, in almost all cases avert the risk in the ‘hukou’ area.  However, internal relocation may not be safe where there is credible evidence of individual pursuit of the returnee or her family outside the ‘hukou’ area.

[5]        Paragraph 12 refers to the judgment of the First‑tier Tribunal on 7 June 2013.  It should be noted that no information from Dr Sheehan was presented to the tribunal in support of the petitioner’s case and the petitioner relied on the Country guidance case, AX, supra, in furtherance of her appeal.  It was not suggested, either, that there was more recent country information which would have entitled the Tribunal to depart from AX, supra, or that there were special circumstances relating to the petitioner. An extract from the judgment refusing the petitioner’s appeal is as follows:

“As I have already indicated the Respondent dealt at some length with AX in the decision letter and set out clear reasons why she came to the conclusion that the Appellant would not be at risk on return. In my view Ms Hussain  has not produced any evidence or made any submissions which would entitle me to come to a conclusion other than the conclusion reached by the Respondent and for that reason my conclusion is that the Appellant would not be at risk of ill treatment on her return to China as a result of having breached the One Child Policy which at the end of the day is a civil matter in China and not a criminal matter.”

 

[6]        At paragraph 13 it was noted that the petitioner was from Fuqing city, Fujian province and that the woman referenced in Dr Sheehan’s report is from the area of rural Fuzhou in Fujian province. At paragraph 14 the respondent records that the petitioner has failed to provide any fresh evidence that she would be at risk of persecution upon return to China. With regard to the risk of sterilisation, which lies at the heart of the petitioner’s case, paragraph 15 notes that Dr Sheehan’s report relates to a woman whose circumstances were not identical to the petitioners.  At paragraph 16 it is noted that there is no real risk of a refusal to register a child and quoting from the Country Report on Human Rights Practices for 2014 it is also noted that in the small number of provinces and areas, during large‑scale crackdowns, human rights abuses can and do occur, resulting in women, and sometimes men, being forcibly sterilised.  However, it was noted from the latest COIS information that, in general, for female returnees, there is no real risk of forcible sterilisation in China. The respondent recorded that:

“It is accepted that you are a female returning to China who has already had your permitted quota of children. You have however, failed to demonstrate that you are being returned at a time when there is a crackdown in your hukou area which is accompanied by unlawful practices. You have also failed to demonstrate that if there is no current crackdown in your area, that you and your family are at risk on return to China or that your remaining family in China have been threatened with or have suffered ill-treatment by reason of a breach of the Family Planning Scheme.”

 

[7]        With regard to internal relocation the petitioner had submitted, drawing on the contents of paragraph 12 of Dr Sheehan’s report, that the woman mentioned in her report would face risk wherever she went in China which could not be solved by internal relocation. However, the respondent, applying AX, supra, concluded that where a real risk exists in the ‘hukou’ area, it may be possible to avoid the risk by moving to a city. The country evidence did not indicate a real risk of effective pursuit of internal migrant women leading to sterilisation taking place in their city of migration.  Therefore, internal relocation would in almost all cases avert the risk in the ‘hukou’ area. It was accepted by the respondent that internal relocation may not be safe where credible evidence exists of individual pursuit of the returnee or her family outside the ‘hukou’ area, however, the petitioner had failed to provide any evidence to this effect.  The respondent at paragraph 21 under the section headed ‘In Summary’ confirms the refusal of the petitioner’s claim. She stated:

“Given the findings of the Immigration Judge and after repetitive and thorough consideration of the case law AX, the Country Expert Report from Dr. Sheehan has been thoroughly considered, however it remains the opinion of the Secretary of State  that you have not demonstrated that you would be at risk of persecution, or treatment contrary to Article 3 of the ECHR because of your claimed breach of the Family Planning Scheme on your return to China and we continue to maintain the Immigration Judge’s findings above. Although it is accepted that the report is in regards to an individual with similar circumstances to yourself and from the same province of China, this report is not directly in relation to you and your case. Notwithstanding this, for the reasons provided above, it is the opinion of the Secretary of State that this report would not create a realistic prospect of success should it be presented before an Immigration Judge.”

 

Grounds of review
[8]        The petitioner applies for judicial review of the decision on the grounds set out in statements 14 and 15 of the petition.  Statement 14 relates to the issue of forced sterilisation and statement 15 relates to the issue of internal relocation.  The petitioner avers that the respondent erred in law at paragraph 16 of the decision letter by failing to take account and assess the material factors set out in paragraphs 25, 26, 30 and 32 of the report by Dr Sheehan.  Paragraph 25 refers to the occurrence of campaigns and individual abuses on an annual basis and not just in 2010.  Paragraph 26 refers to reports which post-date AX, supra, showing that campaigns and enforcement measures are known to have taken place in at least 20 of China’s 31 provinces in the past three years.  Fujian is not one of the 11 provinces where campaigns and enforcement measures have not taken place.  Paragraph 30 states that the claimant would be a target for sterilisation and paragraph 32 states that the claimant would be at more risk as targets are set on the permanently ‘hukou’ registered population when in reality there is a much smaller population actually living in the area targeted.  This information, post AX, supra, indicates that crackdowns and abuses occur on an annual basis and undermines the findings at paragraph 17 of the decision letter. Paragraph 14 of the petition records that,” there is no suggestion that the petitioner’s family or her partner’s family suffered any difficulties.”  Paragraph 15 states that the petitioner erred at paragraph 18 of the decision letter by arriving at the finding, that the petitioner has failed to provide any credible evidence of individual pursuit of the returnee outside the home area, which is not supported by the evidence.  In particular, paragraph 12 of Dr. Sheehan’s report records that Fujian family planning officials do pursue migrants who have breached the family planning policy.

 

The legal framework
[9]        The relevant immigration rule is found in paragraph 353 of the Immigration Rules. This provides: 

“353.   When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision-maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.  The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.  The submissions will only be significantly different if the content: 

 

(i)         had not already been considered; and

(ii)        taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.  This paragraph does not apply to claims made overseas.”

 

The correct approach to considering paragraph 353 is set out in the case of WM (DRC Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495 (approved by Dangol v Secretary of State for the Home Department [2011] CSIH 20).  At paragraph 11 of the Judgment, the Court of Appeal stated that the question was not whether the Secretary of State for the Home Department thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return.  Anxious scrutiny has been described as ensuring that every factor favourable to the petitioner has been properly taken into account, see MN v Secretary of State for the Home Department 2014 SC (UKSC) 183 per Lord Carnwath of Notting Hill at paragraph 31).  The Home Secretary can treat her own view of the merits as a starting point for that inquiry, but it is only a starting point in the consideration of the question that is distinctly different from the exercise of the Home Secretary making up her own mind.  In addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, the Home Secretary has to satisfy the requirement of anxious scrutiny.  This case also confirmed that the correct approach for the court on judicial review is that the determination of the Home Secretary is only capable of being impugned on Wednesbury grounds, but that a decision will be irrational if it is not taken on the basis of anxious scrutiny, see also ABC v Secretary of State for the Home Department [2013] CSOH 32 per Lord Bannantyne at paragraph 11.  With regard to asylum the necessary conditions include inter alia that there is a well-founded fear of persecution in the country of origin, see R (Bagdanavicius) v Secretary of State for the Home Department [2004] 1 WLR 1207 per Auld LJ at para 41, and the applicant cannot avoid the risk of persecution in his country of origin by internal relocation, see article 8.1 of Council Directive 2004/83/EC.

 

Submissions for the Petitioner
[10]      The petitioner submitted that the report by Dr Sheehan set out very strong grounds in support of the claim.  However, the factors which weighed heavily in favour of the petitioner were not taken into account.  This included evidence, some of which post-dated AX, supra, that campaigns and individual abuses occur annually and not just in 2010, and AX, supra, was wrong so to conclude.  In any event AX, supra, did not deal with the situation in Fujian province beyond the generality of China as a whole and the claimant in AX, supra, did not come from Fujian province.  The information at paragraphs 30 and 32 of Dr Sheehan’s report to the effect that the petitioner would be a target for sterilisation was not considered and dealt with by the respondent in the decision letter.  This information, which was cogent evidence, provided very strong grounds for departing from AX, supra, the country guidance case for China.  No material findings were made in the decision letter to explain why the decision maker did not go beyond AX, supra.  The fact that Dr Sheehan’s report was prepared for another person did not detract from the fact that the report contained information of general application in relation to forced sterilisation in China. Dr. Sheehan had agreed ex post facto that the report could be used by the petitioner (6/11 of the inventory of productions).  Although Dr Sheehan’s report is dated 29 August 2013, the information contained in the report is not undermined by the information relied on by the respondent.  Albeit Dr Sheehan was subject to criticism by the court in AX, supra, this does not mean that the criticism would continue to apply to her in the present case.  Having regard to Dr Sheehan’s report there would be a more than fanciful prospect of success before an Immigration Judge and the respondent erred in concluding otherwise.  With regard to internal relocation the finding in paragraph 18 of the decision letter that internal relocation will, in almost all cases (unless there is evidence of individual pursuit), avert the risk in the ‘hukou’ area is not supported by the evidence.

Submissions for the Respondent
[11]      The respondent submitted that it was clear from the decision letter and the letter from the petitioner’s solicitors dated 1 October 2013 that the respondent considered Dr Sheehan’s report.  She expressly said so in the letter.  She would not have been able to make the findings in the decision letter without having regard to the report.  This ground of review, in order to succeed, requires the court to infer that she did the opposite of what she stated in respect of these two documents.  There is no requirement for the respondent to deal with every piece of evidence and it is sufficient to show the basis on which she acted.  The decision letter read whole does not leave the informed reader in any doubt as to the basis of her decision.  The evidence does not establish that the petitioner faces a real risk of forced sterilisation if returned to China.  The report from Dr Sheehan was old, written for another person with different circumstances to that of the petitioner and there was no basis to depart from AX, supra, the country guidance case for China.  Esto the respondent erred in law, the error was not material.  Paragraphs 25, 26, 30 and 32 of Dr Sheehan’s report would not give the petitioner a realistic prospect of succeeding in an appeal to a tribunal that there is a real risk that the petitioner would be subject to forced sterilisation if returned to China.  Dr Sheehan’s position was that it was not possible to know which areas of China are about to launch such a campaign or where a campaign is currently ongoing and the campaigns described by Dr Sheehan are provincial and not national.  It had not been demonstrated that Dr Sheehan’s report contains information which would justify a departure from the country guidance case in AX, supra.  Although some documents which post-date AX, supra are cited in her report there is no explanation provided as to how those documents differ from the evidence which was before the Upper Tribunal in AX, Supra.  The report was unsigned and written for another individual whose circumstances were different to the petitioners, no confirmation was before the decision maker that Dr Sheehan was content that the report could be used by the petitioner, no information was provided on what, if anything, the Tribunal made of the report when considering the case of the person for whom the report was written, and the report was out of date, being almost three years old when considered by the respondent.  There were problems with Dr Sheehan’s evidence in AX, supra, such that the Tribunal would be likely to place little weight on her report.  With regard to internal relocation, Dr Sheehan’s report does not provide evidence of individual pursuit of the petitioner or her family.  Esto the report does provide such evidence, it is insufficient to justify a departure from AX, supra, as it is not dissimilar to the evidence which was before AX, supra, which concluded that there is generally no risk of individual pursuit.  The report pre-dates AX, supra, and given the problems with Dr Sheehan’s evidence, little weight would be attached to her report.

Decision
[12]      With regard to whether the respondent took into account the report by Dr Sheehan, including and in particular paragraphs 25, 26, 30 and 32, the respondent expressly stated in the decision letter that she had considered the report.  Paragraph 8 states that careful re consideration had been given to the Country Expert Report prepared by Dr Sheehan.  The paragraph summarises Dr Sheehan’s claims taken from the report. Paragraph 10 records that anxious scrutiny has been applied to Dr Sheehan’s report.  The report’s vintage is commented upon (nearly three years old at the time of the decision) as is the subject of the report, another female from Fujian.  This information would have been obtained from reading the report.  Paragraph 11 records that the report had been considered.  Paragraph 21 records that the report had been thoroughly considered and again records that the report was not written for the petitioner, “…this report is not directly in relation to you and your case.”  The decision letter also records at paragraphs 5, 6 and 7, that consideration has been given to the letter from the petitioner’s solicitors dated  1 October 2013, which made further submissions on behalf of the petitioner.  This letter quotes extensively from Dr Sheehan’s report.  The letter quotes from paragraphs 7, 8, 11, 12, 15, 18, 19, 20, 21, 24, 25, 26, 28, 30, 32, 33, 34, 37, 43, 70, 71, 73, 74, 75 and 76.  This, of course, included the paragraphs (25, 26, 30 and 32) which the petitioner specifically avers were not taken into account by the respondent.  In addition to paragraphs 8, 10 and 21, the decision letter also makes specific references which could not have been made without consideration of Dr Sheehan’s report, in particular the references at paragraphs 13, 15, and 18. Paragraphs 25 and 26 of Dr Sheehan’s report deals with the issues of campaigns and crackdowns (referred to in paragraph 26 as excessive enforcement measures).  Paragraph 16 of the decision letter refers to this issue. Before reaching a conclusion, it refers to the Country Report on Human Rights Practices for 2014 and the latest COIS guidance dated July 2015, both of which post-date AX, supra, and Dr Sheehan’s report.  The conclusion reached, following an analysis of the relevant information, that the petitioner had failed to demonstrate that she was being returned when there was a crackdown in her ‘hukou’ area which was accompanied by unlawful practices, covers the same territory as paragraphs 25 and 26 of Dr Sheehan’s report.  Paragraph 30 of Dr  Sheehan’s report refers to the risk of sterilization of the person for whom the report was written.  Paragraph 4 of Dr Sheehan’s report summarises her conclusions which include reference to the issue dealt with in paragraph 30. Dr Sheehan’s conclusion in relation to paragraph 30 is quoted at paragraph 15 of the decision letter.  Paragraph 32 of Dr Sheehan’s report deals with the issue of family planning officials struggling to meet quotas in an area with a high rate of out migration and the effect that this would have on the petitioner if she was returned to this ‘hukou’ area.  The paragraph contains information that the subject of Dr. Sheehan’s report comes from a rural area which is part of Fuzhou.  This is referred to in paragraph 13 of the decision letter.  The reason why the respondent reconsidered her decision of 7 April 2016 was that it was asserted that she had not considered Dr Sheehan’s report.  It would be astonishing if in reconsidering the decision of 7 April 2016, Dr Sheehan’s report was not considered.  Putting all these factors together it is clear to me that the respondent has considered Dr Sheehan’s report, including paragraphs 25, 26, 30 and 32, in reaching her decision.  She has considered Dr Sheehan’s report, which was almost three years old at the time of the decision and written for another individual, the letter from the petitioner’s solicitor, the country guidance case of AX, supra, (judgment handed down on 16 April 2012), the COIS guidance dated July 2015 and the Country Report on Human Rights Practices for 2014.  The COIS guidance refers to a variety of sources which post-date Dr Sheehan’s report including the US Department of State’s Country Report on Human Rights Practices for 2014, a report from the Guardian newspaper dated January 2014 (signalling the possibility of a shift towards a more liberal attitude in family planning laws in Hubei province) and an article from ‘Women News Network’ in June 2013 relating to unmarried mothers, ‘hukou’ registration and the family planning laws.  The respondent in reaching her decision has given consideration to this information and provided rational and cogent reasons for her decision.  An informed reader would be in no doubt as to the reasons for the decision.

[13]      Even if I am wrong and the respondent has erred in law, I would not regard the error as material.  The respondent held that the petitioner would not face a real risk of forced sterilisation unless she was returned to China when there is a crackdown in her ‘hukou’ area. In order for the error to be material Dr Sheehan’s report would require to provide the petitioner with a realistic prospect of establishing before a tribunal that she would be at real risk of forced sterilisation, if returned to China.  In my opinion the tribunal would not so conclude. Firstly, there are problems with the report.  When considered by the respondent when reaching her decision, it was unsigned.  It related to another individual and there was nothing in the report to indicate that it was of general application and valid for the petitioner’s case.  There was nothing before the respondent from Dr Sheehan to indicate that she was content for it to be used in the petitioner’s case. It is the case that ex post facto Dr Sheehan has confirmed this in an e mail.  However, at the time the decision was made there was no indication from Dr Sheehan that she was content for her report to be used, particularly when the report was almost three years old.  The dangers of using such material in this way were highlighted in the case of Slimani v The Secretary of State for the Home Department [2001] UKIAT 9.  There the Immigration Appeal Tribunal at paragraph 20 of the judgment, when dealing with a report prepared for another individual which was about three years old, stated:

“We would add that all too often reports prepared for a specific case are relied on in other cases in which appellants from the same country are represented by the same advisers. This should not happen unless the report is stated to be general and to be valid for all cases or the author is asked to confirm that he is content for it to be relied on. Apart from anything else, conditions change and views which may have been valid when the report was written might not be 12 months later.”

I agree with these observations and would add to them that it is discourteous for a report to be used without the authority and knowledge of the author and person to whom it related. The report could contain sensitive personal information which is put into a public court without their knowledge.  The report may require to be redacted of sensitive information and the user would not know what should be redacted.  The user is acting on the interests of their client and not the author of the report or the individual to whom it relates.  In this case authority for it to be used was given by Dr Sheehan ex post facto.  However, it was conditional on it being redacted.  The report considered by the respondent was unredacted. Further, there are issues of copyright and payment and the danger for the author that a report which is significantly out of date may express wrong conclusions and views, on current information. This could result in official or judicial criticism which could affect the author’s professional reputation. Further, no information was given to the respondent about what, if anything, the tribunal made of Dr. Sheehan’s report. This omission still persisted when the case called before me. As already commented on, the report was almost three years old when considered by the respondent and it is clear from the respondent’s decision letter that there was more up to date objective information about this issue.  In fact, this was an issue for which she received criticism in AX, supra, (paragraphs 164 and 165).

[14]      Dr Sheehan gave evidence in AX, supra.  There were a number of problems with her evidence in this case.  The Upper Tribunal stated that:  (1) she did not have an expertise which gave her the confidence to be able to predict what was likely to happen in a given situation, (paragraph 73);  (2) she made a number of unsourced, speculative suggestions, such as, that the appellant would be likely to be subject to forced sterilisation, from which she departed in her oral evidence ( paragraphs 76 and 85);  (3) she appeared to exaggerate the risks to the appellant (paragraph 164);  (4) she lacked sufficient objectivity (paragraph 165);  and (5) relied on outdated evidence (paragraphs 164 and 165).  These are trenchant criticisms and whilst it is the case that they can be addressed in future cases there was little before me to suggest that they had been addressed in this case.  In fact, it would appear from the terms of her report that she has repeated some of her errors, criticised in AX, supra.  At paragraphs 85 and 161 she is criticised for providing evidence outwith her area of expertise in respect of the legal enforcement of the Social Upbringing Charge (SUC).  Despite this criticism, she has given such ‘expert evidence’ in her report (paragraphs 18 and 23). She has also engaged in speculation in her report (paragraphs 23 and 32).  Further her report is not dissimilar to the evidence presented by her and others which led the Upper Tribunal in AX, supra, to conclude that the last crackdown by the authorities was in 2010 and that unlawful practices were exceptional.  Despite this she is critical of these findings in her report (paragraph 25). However, these are the findings of the Upper Tribunal and are authoritative unless very strong grounds, supported by cogent evidence, are adduced, see SG [Iraq] v SSHD [2012] EWCA Civ 940 per opinion of Stanley Burton LJ.  I do not regard Dr Sheehan’s report as providing the necessary cogent evidence and strong grounds to justify departure from the Country Guidance case of AX, supra.  The campaigns referred to in Dr Sheehan’s report (paragraphs 25 and 26) are provincial and at paragraph 28 she accepts that it is not possible to know which areas of China are about to launch a campaign or are in the middle of one at any given time.  The petitioner’s counsel submitted that AX, supra, did not deal with the province of Fujian and as a result provided the cogent evidence and strong grounds to justify departure from it.  I reject this submission. Firstly, the full title of AX is AX (Family Planning Scheme) China CG.  Its name suggests it applies to China as a whole.  Secondly, paragraph 10 of the judgment of the court states that the appeal was identified for country guidance on the operation of the Chinese family planning system, in particular the risk of persecution or serious harm on return to China affecting Chinese citizens living abroad.  This again suggests that it applies to China as a whole.  Thirdly, Fujian is selected as one of the provinces the court considered when summarising the provincial population and family planning (PFP) regulations (paragraph 39).  Fourthly, paragraphs 61 – 66 specifically consider Fujian province.  Fifthly, documents on Fujian province are considered by the court (paragraph 20 and appendix A) and finally, the report contains many references to this province (appendices D, E and F) and appendix E has a specific section on this province.  There is nothing in the letter intimating the fresh claim to highlight the material differences in Dr Sheehan’s report with AX, Supra, and the respondent was not asked to disapply the country guidance case of AX, supra, (see YH Petitioner [2016] CSOH 72 per Lady Wolffe at paragraph 116).  For the foregoing reasons, I conclude that the error is not material and would make no difference to the outcome of an appeal. The respondent was correct to conclude that there was no realistic prospect of succeeding before a tribunal in establishing that the petitioner is at real risk of forced sterilisation if returned to China.

[15]      With regard to internal relocation the respondent held that the petitioner had failed to show that she had a realistic prospect of establishing before a tribunal that she could not escape the risk of forced sterilisation if returned to China by internal relocation (paragraphs 18 and 21).  The ground of review challenges the respondent’s finding at paragraph 18 of the decision letter that internal relocation will, in almost all cases, avert the risk of forcible sterilisation in the ‘hukou’ area, unless there is credible evidence of individual pursuit.  The challenge is based on paragraph 12 of Dr Sheehan’s report.  However, paragraph 12 and the entirety of Dr Sheehan’s report does not make any points or provide any evidence in relation to the petitioner.  This is not surprising given that the report was written for another individual.  There is therefore no credible evidence of individual pursuit of the petitioner or her family in Dr Sheehan’s report.  Further, approaching paragraph 12 on the basis that it sets out a generality applicable to the petitioner, the high point of the paragraph for the petitioner is the statement therein that there is evidence that local family planning officials actively pursue migrant women who have breached regulations in order to enforce penalties, and a Fujianese family planning official has stated publicly that this is policy with regard to women migrating away from Fujian.  Footnote 17 provides the source for this assertion which is a news report from ‘bioscholar’ on 1 November 2011.  This, of course, pre‑dates the decision in AX, supra. Dr Sheehan makes the point in paragraph 12 that the forced sterilisation risk could not be averted by internal relocation, since the same system, with local variations, applied everywhere. However, this point was made by her in her evidence in AX, supra, (paragraph 90) and rejected by the Upper Tribunal at paragraph 191(14) of the judgment.  Paragraph 191(14) states as follows:

“(14) Where a real risk exists in the ‘hukou’ area, it may be possible to avoid the risk by moving to a city. Millions of Chinese internal migrants, male and female, live and work in cities where they do not hold an ‘urban hukou’.  Internal migrant women are required to stay in touch with their ‘hukou’ area and either return for tri-monthly pregnancy tests or else send back test results.  The country evidence does not indicate a real risk of effective pursuit of internal migrant women leading to forcible family planning actions, sterilisation or termination, taking place in their city of migration. Therefore, internal relocation will, in almost all cases, avert the risk in the hukou area.  However, internal relocation may not be safe where there is credible evidence of individual pursuit of the returnee or her family, outside the ‘hukou’ area. Whether it is unduly harsh to expect an individual returnee and her family to relocate in this way will be a question of fact in each case.”

 

As there was no evidence presented of individual pursuit and no cogent evidence providing very strong grounds to allow the respondent to depart from the country guidance in AX, supra, the decision of the respondent on internal relocation is rational and sound. I also note that it is based on the most up to date COIS guidance. Even if I am wrong, I would not regard the error as material as I cannot envisage any tribunal finding in favour of the petitioner on this issue on the material referred to in paragraph 12.  The conclusion seems to me to be speculative and not based on cogent and up to date evidence.  I therefore reject this ground of review also.

[16]      For the foregoing reasons I refuse the petition and repel the petitioner’s plea in law and sustain the respondent’s second plea in law.  I reserve meantime all questions of expenses.