AAZA (Yemen) v Secretary of State for the Home Department [2025] EWCA Civ 705

[2025] EWCA Civ 705Case No CA-2023-002175
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE HANSON
UI-2021-001588
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 June 2025
Before
LORD JUSTICE BEANLORD JUSTICE PETER JACKSONMR JUSTICE COBB
Between
AAZA (Yemen)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Sonia Ferguson (instructed by Freemans Solicitors) for AppellantWilliam Irwin (instructed by Government Legal Department) for RespondentHearing Hearing date: 14 May 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 6 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The Appellant, who was born on 2nd May 2000, is a male citizen of Yemen.[2]On 6th February 2020 the Appellant made an application for asylum and humanitarian protection in the United Kingdom. The basis of the Appellant's claim was that he feared the Houthi rebels and the general situation in Yemen and also feared the Chinese authorities. The Appellant had resided in China with his family since he was 1 year old but did not have Chinese nationality and, as previously indicated, was a citizen of Yemen.[3]The Respondent considered the Appellant's application and refused the same on 25th November 2020 for the reasons set out in a Reasons for Refusal letter also dated 25th November 2020.[4]The Appellant appealed against the Respondent's decision by an appeal lodged on 8th December 2020. The Appellant in his appeal claimed that removing him from the United Kingdom would breach the UK's obligations under the 1951 Refugee Convention and in addition would breach the UK's obligations in relation to persons eligible for a grant of humanitarian protection.[5]The Appellant claimed asylum under the 1951 Refugee Convention and by implication also claims humanitarian protection by virtue of the EU Council Directive 2004/83/EC on the minimum standards for the qualification and status of third country nationals (“the Qualification Directive”) as incorporated in the Refugee or Persons in Need of International Protection (Qualification) Regulations 2006 (“the 2006 Regulations”).[6]Following a hearing in the First-Tier Tribunal at Bradford on 9 July 2021, at which the Appellant gave evidence and was represented by Ms Ferguson, Judge O’Hanlon, in a reserved decision promulgated on 19 July 2021, dismissed the Appellant’s appeal on asylum grounds, allowed his appeal on humanitarian protection grounds with regard to Yemen, but dismissed the appeal on humanitarian protection and human rights grounds with regard to China.[7]Pursuant to permission to appeal granted on 4 October 2021 by First Tier Tribunal Judge Moon, the Appellant appealed to the Upper Tribunal. A hearing before Judge Hanson took place at Bradford on 22 July 2022. In a decision signed on 28 July 2022 but apparently not promulgated until 3 November 2022, Judge Hanson found no material error of law in the First Tier Tribunal decision and accordingly dismissed the appeal.[8]An application was made on 4 November 2022 to the Upper Tribunal for permission to appeal to this court. Nearly a year later, on 11 October 2023, Judge Hanson refused the application. This delay has not been explained, but it does not affect the merits of the appeal before us. It does not appear that the Appellant or his legal representatives were at fault.[9]By an application notice with grounds of appeal and a skeleton argument in support settled by Ms Ferguson, the Appellant sought permission for a second appeal. On 10 April 2024 Asplin LJ granted permission on all grounds. She wrote: “The 10 grounds of appeal are all interlinked. They are all concerned with reliance on the Applicant being able to return to China, the burden of proof in that regard and the risks relating to such a return. They have a real prospect of success and there is a compelling reason why the appeal should be heard given the risk to the Applicant”.[10]On 8 October 2024 the substantive appeal was listed before the Vice President, Underhill LJ, and two other members of the court. The result, although no formal order appears to have been issued, was that the appeal was adjourned and the parties directed to submit further skeleton arguments on the following questions:- “(i) the safety of return to China including the risk of refoulement; (ii) the inconsistency between the rules and the Qualification Directive comprising a procedural and substantive part: a) Should the appellant be permitted to raise this where it did not form part of his argument before the FTT. b) Substantive argument, including whether the Directive had direct effect.” a) Should the appellant be permitted to raise this where it did not form part of his argument before the FTT. b) Substantive argument, including whether the Directive had direct effect.”[11]Each side then filed a supplementary skeleton argument in accordance with the court’s directions.[12]On 8 April 2025, the Appellant lodged a further witness statement in which he says that:- “Sadly it has been around three years since I lost contact with my family. The last thing I heard about them was my father was forcefully deported back to Yemen.” Ms Ferguson did not seek formally to adduce this statement as fresh evidence. Our task, like that of the Upper Tribunal Judge, is to decide whether, on the evidence before her, the First Tier Tribunal Judge made any error of law when she dismissed the Appellant’s appeal against the decision of the Home Office dated 26 November 2020.

The parties’ cases before the First Tier Tribunal

[13]I gratefully adopt Judge O’Hanlon’s account of the cases as they were presented to her. As to the Appellant’s case she said:- “24. The Appellant's case, based upon his screening interview, asylum interview, further representations, skeleton argument and oral evidence at the hearing, can conveniently be summarised as follows:- a) The Appellant is a national of Yemen, born 2 May 2000. He was born in Bangkok, Thailand where he lived for a year prior to moving with his family to China where his father ran an import/export business. (b) The Appellant's family do not have settled status in China, his father having to renew his residency every year. Since the Appellant turned the age of 18 he is only able to reside there on a student visa in his own right. (c) The Appellant's family includes his father, mother and two siblings, born 2003 and 2004 respectively. (d) The Appellant received his education in China. He commenced university studies in 2018 at Changsa Human University and in his second year studied at Changsa Central University. (e) Although the Appellant has lived in China for the majority of his life, he has not been granted citizenship. (f) The situation in Yemen has continued to deteriorate since the war commenced in 2014. (g) On 4th December 2019 the Appellant's father and other Yemeni citizens residing in China organised a conference where Yemeni nationals resident in China raised money and provided clothing to support displaced and vulnerable citizens of Yemen. (h) During the conference those who attended also raised the problem of the Igor (Uighur) Muslims in China. This a taboo subject for the Chinese authorities. (i) The Appellant's role was to distribute leaflets during the conference to generate awareness about the Yemeni war and the negative involvement of the Saudi-led coalition. The Appellant's father was a chief organiser and was in charge of money raised during the conference. (j) On 11th January 2020 the Appellant arrived in the United Kingdom to continue his higher education. Whilst he was checking in his luggage for departure from China his passport was taken by Chinese airport security and retained for fifty minutes. The Appellant was questioned by Chinese airport security. The Appellant's passport was returned to him. When the Appellant arrived in the United Kingdom he became aware of the rumours that the Chinese government had begun arresting Yemenis who had attended the conference (k) On 25th January 2020 the Chinese intelligence and local police visited the Appellant's father's place of work. He was questioned by the Chinese security forces about his work and his family in China and abroad. He was physically and verbally abused during the interrogation and asked to surrender his Yemeni passport. (l) The Appellant's father was informed that he had organised a conference which was not licensed or approved by the Chinese government. He was released after several hours. (m) Since he made his application for asylum the Appellant's family in China have been constantly harassed by the Chinese government. (n) The Appellant's father has been diagnosed with a heart condition and his mother is suffering from depression. His siblings have had their education interrupted. They have been unable to enrol for education as the Appellant's father's residency in China is unconfirmed as the Chinese authorities took his passport. The Appellant's father has been interviewed on several occasions and he is required to attend the local police station on a weekly basis. (o) The Appellant believes that his family is to be removed to Yemen but that is not possible at present. (p) The Appellant's visa application and copy passport demonstrate that his residency permit in China expired on 20th July 2020. He is no longer enrolled on a course of study there and in view of the developments with his family and his own connection to it, it is unlikely that he would obtain another visa/residence permit. ... 28. The Appellant's Representative made the following submissions:- (a) She relied upon the skeleton argument. (b) The Appellant has not been given humanitarian protection in effect. It was recognised he should be if it were not for the question of an alternative country of return. (c) It is baffling to say that China is a reasonable destination for the Appellant when the Appellant has no visa. He is not Chinese and has no right to return there. (d) Although it is correct that the Appellant was allowed to leave China on the basis of his own passport, this was before his father had been arrested and the family had come to the attention of the authorities. (e) What the Appellant says about the treatment of his family is consistent with what we know about China who are sensitive about Uighur issues. There is no reason to believe that the Appellant's family would be treated fairly or humanely. (f) There is no reason that the Appellant could return to China. He does not have a visa. The burden does not shift to the Appellant to show that he can get one. (g) She invited me to find that on balance a visa would not be available given the attitude that the Chinese have to foreign visitors and particularly those with Muslim connections. (h) The Secretary of State cannot forcibly return the Appellant to China as he is not a Chinese citizen. (i) Perhaps the question of whether the Appellant is entitled to asylum in Yemen is somewhat academic. Although the Respondent states that the Appellant has been granted humanitarian protection, in effect he has not been as the Respondent is saying that the Appellant can be returned to China and therefore the Appellant has not been given any protection based the situation in Yemen. (j) The situation in Yemen is as set out in the CPIN - Yemen: Security and humanitarian situation, January 2019. (k) It is not realistic for the Appellant to return voluntarily to China. The background evidence in the Appellant's bundle supports his account about the suspicion that has fallen on his family, which is why the Appellant should not be returned to China even if the authorities would allow it. (l) The Appellant's account is credible and plausible by reference to the background evidence. (m) The Appellant came to the UK with no expectation that his circumstances would change as is stated to be the case. (n) The Appellant is a Yemen citizen and the Secretary of State has recognised that the Appellant cannot be returned to Yemen. (o) The Appellant cannot return to China.” a) The Appellant is a national of Yemen, born 2 May 2000. He was born in Bangkok, Thailand where he lived for a year prior to moving with his family to China where his father ran an import/export business. (b) The Appellant's family do not have settled status in China, his father having to renew his residency every year. Since the Appellant turned the age of 18 he is only able to reside there on a student visa in his own right. (c) The Appellant's family includes his father, mother and two siblings, born 2003 and 2004 respectively. (d) The Appellant received his education in China. He commenced university studies in 2018 at Changsa Human University and in his second year studied at Changsa Central University. (e) Although the Appellant has lived in China for the majority of his life, he has not been granted citizenship. (f) The situation in Yemen has continued to deteriorate since the war commenced in 2014. (g) On 4th December 2019 the Appellant's father and other Yemeni citizens residing in China organised a conference where Yemeni nationals resident in China raised money and provided clothing to support displaced and vulnerable citizens of Yemen. (h) During the conference those who attended also raised the problem of the Igor (Uighur) Muslims in China. This a taboo subject for the Chinese authorities. (i) The Appellant's role was to distribute leaflets during the conference to generate awareness about the Yemeni war and the negative involvement of the Saudi-led coalition. The Appellant's father was a chief organiser and was in charge of money raised during the conference. (j) On 11th January 2020 the Appellant arrived in the United Kingdom to continue his higher education. Whilst he was checking in his luggage for departure from China his passport was taken by Chinese airport security and retained for fifty minutes. The Appellant was questioned by Chinese airport security. The Appellant's passport was returned to him. When the Appellant arrived in the United Kingdom he became aware of the rumours that the Chinese government had begun arresting Yemenis who had attended the conference (k) On 25th January 2020 the Chinese intelligence and local police visited the Appellant's father's place of work. He was questioned by the Chinese security forces about his work and his family in China and abroad. He was physically and verbally abused during the interrogation and asked to surrender his Yemeni passport. (l) The Appellant's father was informed that he had organised a conference which was not licensed or approved by the Chinese government. He was released after several hours. (m) Since he made his application for asylum the Appellant's family in China have been constantly harassed by the Chinese government. (n) The Appellant's father has been diagnosed with a heart condition and his mother is suffering from depression. His siblings have had their education interrupted. They have been unable to enrol for education as the Appellant's father's residency in China is unconfirmed as the Chinese authorities took his passport. The Appellant's father has been interviewed on several occasions and he is required to attend the local police station on a weekly basis. (o) The Appellant believes that his family is to be removed to Yemen but that is not possible at present. (p) The Appellant's visa application and copy passport demonstrate that his residency permit in China expired on 20th July 2020. He is no longer enrolled on a course of study there and in view of the developments with his family and his own connection to it, it is unlikely that he would obtain another visa/residence permit. (a) She relied upon the skeleton argument. (b) The Appellant has not been given humanitarian protection in effect. It was recognised he should be if it were not for the question of an alternative country of return. (c) It is baffling to say that China is a reasonable destination for the Appellant when the Appellant has no visa. He is not Chinese and has no right to return there. (d) Although it is correct that the Appellant was allowed to leave China on the basis of his own passport, this was before his father had been arrested and the family had come to the attention of the authorities. (e) What the Appellant says about the treatment of his family is consistent with what we know about China who are sensitive about Uighur issues. There is no reason to believe that the Appellant's family would be treated fairly or humanely. (f) There is no reason that the Appellant could return to China. He does not have a visa. The burden does not shift to the Appellant to show that he can get one. (g) She invited me to find that on balance a visa would not be available given the attitude that the Chinese have to foreign visitors and particularly those with Muslim connections. (h) The Secretary of State cannot forcibly return the Appellant to China as he is not a Chinese citizen. (i) Perhaps the question of whether the Appellant is entitled to asylum in Yemen is somewhat academic. Although the Respondent states that the Appellant has been granted humanitarian protection, in effect he has not been as the Respondent is saying that the Appellant can be returned to China and therefore the Appellant has not been given any protection based the situation in Yemen. (j) The situation in Yemen is as set out in the CPIN - Yemen: Security and humanitarian situation, January 2019. (k) It is not realistic for the Appellant to return voluntarily to China. The background evidence in the Appellant's bundle supports his account about the suspicion that has fallen on his family, which is why the Appellant should not be returned to China even if the authorities would allow it. (l) The Appellant's account is credible and plausible by reference to the background evidence. (m) The Appellant came to the UK with no expectation that his circumstances would change as is stated to be the case. (n) The Appellant is a Yemen citizen and the Secretary of State has recognised that the Appellant cannot be returned to Yemen. (o) The Appellant cannot return to China.”[14]As to the Respondent’s case, she said:- 25. The Respondent's case, based upon the Reasons for Refusal letter and Respondent's Review, can conveniently be summarised as follows:-(a) The Respondent does not dispute the Appellant's identity, date of birth or Yemen nationality.(b) The Respondent accepts that the Appellant's claim is based firstly on a reason recognised by the 1951 Refugee Convention, namely the Appellant's imputed political opinion, and secondly on a reason not recognised by the 1951 Refugee Convention, namely the general situation in Yemen.(c) The Respondent accepts that the Appellant is entitled to humanitarian protection in that he could not be returned to Yemen as there would be a risk of serious harm in that event such that the Appellant's rights under Article 15(c) of The Qualification Directive would be breached.(d) Notwithstanding the fact that the Respondent finds that the Appellant is entitled to humanitarian protection, it is not accepted that the Appellant is a refugee. The Appellant has referred to a threat to him from the Houthi tribe in Yemen. The Respondent does not accept the Appellant's claimed fear from the Houthi tribe in the event of his return. The Respondent considers that the Appellant's claim that he would be at particular risk on return to Yemen for a reason recognised by the 1951 Refugee Convention is speculative and inconsistent.(e) The Respondent considers that there is an alternative country to which the Appellant could return, specifically China, where he has lived for the majority of his life and where he had been educated and where his family are located.(f) The Appellant does not satisfy the requirements for leave to remain in the UK based upon Article 8 family or private life grounds. ... 27. The Presenting Officer made the following submissions:- (a) She relied upon the Reasons for Refusal letter and Respondent's Review. (b) So far as Yemen is concerned, the Appellant left Yemen when he was 1 year old, had last visited when he was 13 and has had no contact with the Houthi militia. There is no explanation of why the Appellant would be specifically at risk for a Convention reason. (c) The Appellant's claims regarding return to China are speculative. The Appellant was allowed to leave on his own passport following questioning. No adverse interest has been notified. His claim is speculative and lacking in credibility. (d) The Respondent has shown realistic alternatives for the Appellant returning to China, the country in which he has lived for the whole of his life. The Appellant has not shown that he has attempted what has been suggested by the Respondent to enable him to return. He simply said he could not do it. (e) The Appellant is able to return to China and it is reasonable to expect him to do so. The Appellant has made no efforts to show that this is not the case or to rebut the Respondent's position. (a) The Respondent does not dispute the Appellant's identity, date of birth or Yemen nationality. (b) The Respondent accepts that the Appellant's claim is based firstly on a reason recognised by the 1951 Refugee Convention, namely the Appellant's imputed political opinion, and secondly on a reason not recognised by the 1951 Refugee Convention, namely the general situation in Yemen. (c) The Respondent accepts that the Appellant is entitled to humanitarian protection in that he could not be returned to Yemen as there would be a risk of serious harm in that event such that the Appellant's rights under Article 15(c) of The Qualification Directive would be breached. (d) Notwithstanding the fact that the Respondent finds that the Appellant is entitled to humanitarian protection, it is not accepted that the Appellant is a refugee. The Appellant has referred to a threat to him from the Houthi tribe in Yemen. The Respondent does not accept the Appellant's claimed fear from the Houthi tribe in the event of his return. The Respondent considers that the Appellant's claim that he would be at particular risk on return to Yemen for a reason recognised by the 1951 Refugee Convention is speculative and inconsistent. (e) The Respondent considers that there is an alternative country to which the Appellant could return, specifically China, where he has lived for the majority of his life and where he had been educated and where his family are located. (f) The Appellant does not satisfy the requirements for leave to remain in the UK based upon Article 8 family or private life grounds. (a) She relied upon the Reasons for Refusal letter and Respondent's Review. (b) So far as Yemen is concerned, the Appellant left Yemen when he was 1 year old, had last visited when he was 13 and has had no contact with the Houthi militia. There is no explanation of why the Appellant would be specifically at risk for a Convention reason. (c) The Appellant's claims regarding return to China are speculative. The Appellant was allowed to leave on his own passport following questioning. No adverse interest has been notified. His claim is speculative and lacking in credibility. (d) The Respondent has shown realistic alternatives for the Appellant returning to China, the country in which he has lived for the whole of his life. The Appellant has not shown that he has attempted what has been suggested by the Respondent to enable him to return. He simply said he could not do it. (e) The Appellant is able to return to China and it is reasonable to expect him to do so. The Appellant has made no efforts to show that this is not the case or to rebut the Respondent's position.[15]It appears that the Appellant was the only witness to give evidence. No expert evidence was called nor reference made to any country guidance decisions of the Upper Tribunal, nor to any Country Policy and Information Note relating to China.

Findings of the FTT

[16]The judge dealt first with the possible return of the Appellant to Yemen, the country of his nationality. She accepted – and it was not disputed – that Yemen was a country where there was indiscriminate violence in a situation of internal armed conflict posing serious and individual threats to civilians, such that the return of the Appellant to Yemen would breach his right to protection from serious harm under Article 15 of the Qualification Directive. The judge noted the acceptance by Ms Ferguson that this made the issue of whether the Appellant also satisfied the requirements for the grant of asylum as a refugee from Yemen “somewhat academic” but since counsel had nevertheless pursued the argument, the judge found that the Appellant was not so entitled. There has been no appeal to this court from that finding.

Judge O’Hanlon then turned to the question of the Appellant’s possible return to China:

[17]- “42. Overall, the Appellant's claimed fear of persecution in China is based upon what has happened to his family rather than his own direct personal experience. The Appellant's witness statement and the skeleton argument on behalf of the Appellant make reference to the poor overall human rights record of the Chinese authorities with particular reference to those connected to or suspected of supporting the Uighur community and whilst I accept that that is the case, I do note that no evidence has been put forward on behalf of the Appellant regarding general human rights abuses against nationals of Yemen.43. In considering whether there is a real risk of the Appellant suffering persecution in the event of return to China, based upon his belief that he would be treated in the same manner as his father and family, I do take into account that on the basis of the Appellant's account, his role in the conference was a minor role, especially when compared to the role of his father. The Appellant has referred to his father as being one of the main organisers of the conference and also having collected the money which was raised to assist displaced persons from Yemen. The Appellant's role, on the basis of his account, had been to distribute some leaflets and to look after attendees at the conference. It is also the case that the Appellant is not a minor and is an independent adult rather than a dependent of his father.44. In considering the risk of persecution, it is necessary for me to consider what amounts to persecution. The Appellant's account of the treatment of his father shows a degree of harassment, such as reporting requirements, the removal of his passport and the Appellant claims that his father was physically and mentally abused during his initial questioning. At Paragraph 75 of his asylum interview the Appellant confirms that he is not aware if his father ever having been detained by the authorities.45. The case of HJ (Iran) v SSHD [2010] UKSC 31 states that “the Refugee Convention does not define “persecution” but it has been recognised as a strong word” and in MI (Pakistan) and MF (Venezuela) vSSHD [2014] EWCA Civ 826 it is stated that discrimination is not enough to constitute persecution.46. Even if the treatment described having been suffered by the Appellant's father and family is taken at its highest level, I do not find that this constitutes persecution for the purposes of the 1951 Refugee Convention, the treatment amounting, in my view, to harassment with a degree of discrimination. In any event, I do not find that it follows that the Appellant would be subject to similar treatment in the event of his return to China. In this respect I take into account the difference between the Appellant's father's role at the conference and that of the Appellant, the fact that the Appellant is an adult for legal purposes albeit it is accepted that the Appellant remains financially dependent upon his father and also the fact that no action was taken by the Chinese authorities against the Appellant for the several weeks in which he remained in China between the conference in December and his departure for the United Kingdom. I also take into account that on the basis of his account, the Appellant was questioned by the Chinese authorities at the airport but permitted to leave China using his own passport. I take further into account that no claim has been made by the Appellant that there was any ill-treatment or harassment or discrimination against him or his family in China for the nineteen years prior to the conference.47. Having taken all of these factors into account, even taking the Appellant's account at its highest level, I do not find that it is reasonably likely that the Appellant would be subject to persecution or serious harm in the event of return to China. It is the Appellant's account that it had been necessary for himself and his family to apply on an annual basis for residence permits. At Paragraph 14 of his witness statement he stated that they had to renew their residence permits on an annual basis and it is stated on behalf of the Appellant that when he became 18 years of age it became necessary for him to obtain a residence permit in his own right as a student. The Respondent has accepted that the Appellant's residence permit in China was valid until 20th July 2020 and has therefore expired. The Appellant's account was that he had intended to return to China before the expiry of the permit and to renew the same. ... 51. It is impossible to determine whether or not an application made by the Appellant now for a visa or residence permit for China as a student (as he had prior to leaving China) would be successful. No evidence has been put before me to indicate that the Appellant has made such an application. It is generally asserted on behalf of the Appellant that such an application would not be successful but there is no evidence that that is the case. In any event, having considered the case. 52. In the light of this guidance, and particularly taking into account that on the basis of the Appellant's evidence, no application has been made for the necessary documentation to enable him to return to China, I do not consider that the Appellant's ability or otherwise to obtain a visa or residence permit is relevant in my consideration of the Appellant's refugee or humanitarian protection claim. In the light of the findings previously referred to, I do not find that the Appellant has demonstrated that he has a well-founded fear of persecution in the event of return to China and I therefore dismiss his asylum appeal insofar as it relates to China also. 53. In relation to China, I find that the Appellant's claim for humanitarian protection under Paragraph 339C of the Immigration Rules is in the alternative to the asylum appeal. In view of the factual conclusions I have reached in relation to the Appellant's asylum appeal relating to China I find the Appellant cannot qualify for humanitarian protection.”

The appeal to the Upper Tribunal

[18]The Appellant applied for permission to appeal to the Upper Tribunal. His grounds were settled by Ms Ferguson (although she did not appear at the oral hearing in the UT). The grounds were numerous but the essence of them was summarized by Judge Moon in the decision granting permission to appeal:- “1. The appellant is a national of Yemen who has lived in China with his family for most of his life. 2. The in-time grounds assert that the judge erred in finding that there was an alternative safe country (namely China) to which the appellant could return. The grounds assert that the judge incorrectly shifted the burden of proof to the appellant in relation to the issue of whether he could go to China. It is also asserted that the finding that the appellant could go to China is irrational because he does not have permanent residency there or a current visa The judge's conclusion that the appellant's ability or otherwise obtain a visa or residency permit was not relevant to her consideration of the asylum or humanitarian protection claim is an arguable error of law The judge has taken into account guidance given in the cases of GH (Former Kaz, Country Conditions_ Effect) Iraq CG [2004] UKIAT 00248 and GH v Secretary of State for the Home Department [2005] EWCA Civ 1182 but these cases both concern appellants returning to their country of origin.”[19]Mr Muquit, who appeared for the Appellant before the Upper Tribunal, also argued that the First Tier Tribunal’s findings on the risk to the Appellant of persecution if returned to China were perverse. The Upper Tribunal judge held that the very high threshold needed to establish perversity in findings of fact was not met.[20]On the issues of the ability to obtain a visa or residency permit and the burden of proof in that respect, Upper Tribunal Judge Hanson held:- “32. What the appellant is effectively arguing is the impracticality of his return to China.33. In HF (Iraq) and Others v Secretary State the Home Department [2013] EWCA Civ 1276 it was found that an international protection claim made by an appellant cannot succeed by reference to any alleged risk of harm arising from the absence of an appropriate travel document, in that case it was a current or expired Iraqi passport or a laissez-passer which it was contended the appellant would face a real risk without on return to Iraq at Baghdad airport, if a Tribunal finds that an appellant’s return is not currently feasible on account of a lack of any of the required documents.34. Proceedings before the immigration tribunals are adversarial by nature and in MA (Ethiopia) [2009] EWCA Civ 289 it was found that where the central issue before the Tribunal was whether someone would or would not be returned, the Tribunal should in the normal course require the claimant to act bone fide and take all reasonable practical steps to seek to obtain the requisite documents to enable him/her to return.35. The specific finding of the Judge in this appeal is that there was no evidence the appellant had undertaken the necessary bona fides enquiries to ascertain whether he will be granted further leave to enter and remain within China as he had previously. That is a finding in accordance with the evidence and neither perverse nor irrational.36. It was not made out there was any real risk to the appellant in making an application for the necessary documentation to the Chinese embassy in the UK.37. Although the appellant disagrees with the conclusions of the Judge the difficulty for the challenge is that it appears to be predicated on an allegation of perversity as a result of disagreement with the Judge’s conclusion regarding any potential ill treatment on return, which the Judge did not find to be sufficient to engage the refugee Convention or entitle the appellant to succeed on any other basis, and has not undertaken the requisite steps to ascertain whether such a contention is true.38. Although Mr Muquit in his submissions suggested the appellant would not be entitled to any of the visas suggested by the Secretary of State in the refusal letter submissions are not evidence and the best evidence is a clear statement of the position of the Chinese authorities from them on this question.39. I find no material error of law sufficient to warrant the Upper Tribunal interfering any further in relation to this matter.40. It is for the appellant to decide what further steps are taken but it may appear that the best option is for him, with the assistance of his solicitors who will be able to attest to the bone fide [sic] of any further enquiries if later challenged by the Secretary of State, to make proper enquiries and an application to the Chinese authorities to ascertain whether he is able to secure permission to re-enter China, even if on the same basis as before. If the appellant is not able to obtain such and has confirmation he will be denied re-entry to China he may have grounds for making a fresh claim on the basis that the only country to be considered will be Yemen in relation to which it is already conceded he may be entitled to a grant of Humanitarian Protection.41. There is no material error of law in the Immigration Judge’s decision. The determination shall stand.”

The appeal to this court

[21]The Appellant sought permission to appeal to this court. Ms Ferguson’s skeleton argument contained no less than 10 grounds of appeal, which were as follows:- “i) In all the circumstances the Upper Tribunal was wrong to accept the SSHD’s contention that China was a safe third-country; ii) The Upper Tribunal erred by relying on caselaw relating to returning a national to their own country when in fact the SSHD proposed to return the appellant to a country of which he was not a national nor had any rights of residence; China was neither safe nor did the appellant have any relevant connection in terms of establishing residency rights; iii) The Upper Tribunal erred by not considering that the qualification directive (under which the appellant would be granted status in relation to Yemen) makes clear that a person is to be returned to their country of origin or nationality; only stateless people will be returned to the country of their former habitual residence; iv) The Upper Tribunal erred in considering the appellant should prove he would not be admitted to China where it is for the SSHD to propose a safe third country that is viable/reasonable both in terms of connection and safety on the balance of probabilities. The Upper Tribunal erred in considering that a temporary student visa, even if granted, would offer the appellant any durable rights of residence in that proposed safe third country; and thus whether it could be said to be a safe alternative; vi) The Upper Tribunal erred in concluding the appellant can be excluded from the humanitarian protection to which he is otherwise entitled because he has not obtained a clear statement from the Chinese authorities that they would not admit him and/or might seek to refoule him to Yemen; vii) The UT erred in relying on paragraph 8 of Schedule 2 of the Immigration Act 1971 to say that an illegal entrant may be returned to the country from which they embarked the UK; the appellant was not an illegal entrant nor refused entry nor even an overstayer; viii) The Upper Tribunal erred in failing to recognise that where an appellant has made a claim for asylum/protection the UK cannot return him to the country from which he embarked for the UK if that would place it in breach of its obligations; this relates to risk in that country but also of refoulement; ix) The Upper Tribunal erred in not considering the obligation on the SSHD and the courts to consider the risk of indirect refoulement; since the SSHD in the refusal recognised that he would not automatically be admitted to China mode of return arguments have been raised and should be considered including risk of refoulement which should be assessed independently and in any event; x) The Upper Tribunal was wrong to characterise the appellant’s arguments as about feasibility of return that it had no jurisdiction to hear and that would only be amenable to Judicial review once removal directions had been set.”[22]It will be noted that the grounds of appeal mention the alleged risk of refoulement three times. The issue does not appear to have been raised before either the First Tier Tribunal or the Upper Tribunal, although it is right to say that the Appellant’s witness statement in the First Tier Tribunal contained the following sentence:- “If I am forcibly returned to China the only fate waiting for me would be similar to that of my parents and siblings who are waiting to be removed from China.”[23]The skeleton argument contains another argument which had not been presented to either of the tribunals below:- “19. The FTT Judge cites paragraph 339C of the immigration rules, intended to transcribe the directive but there is a discrepancy in that the rules speak of country of return but article 15 makes clear only stateless people can be returned to their country of habitual residence. The directive should be preferred to the immigration rules in the circumstances. See Abunar (Para 339C:
“Country of return”) [2018] UKUT 00387 (IAC) §7. 20. It is submitted the wording of the directive makes clear if he cannot be returned to his country of origin he should be granted humanitarian protection as confirmed by Abunar, ibid.”
[24]This point did not, however, find its way into the grounds of appeal. Although there is a lack of precision and focus in the grounds of appeal and the submissions in support of them, Mr Irwin was right to say that five issues can be identified:- a) The risk to the Appellant of persecution or other ill treatment if he is returned to China; b) The argument that it is perverse to regard China as a “safe third country”; c) The issue relating to the obtaining of a visa or residence permit; d) The risk of refoulement of the Appellant from China to Yemen; e) The Abunar point. Discussion Risk of persecution or ill-treatment of the Appellant if returned to China

Discussion

[25]The answer to this is the simple one given by Mr Irwin. The risk that it was reasonably likely that the Appellant would be subject to persecution or serious harm in the event of a return to China was a question of fact for the First Tier Tribunal to decide. On the basis of the evidence placed before the FTT, Judge O’Hanlon gave entirely adequate reasons for finding that the test was not satisfied. There was no error of law in that decision.

Is China a “safe third country?”

[26]The concept of a “safe third country” is an important one under certain statutory provisions in immigration law. Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004 contains a number of lists of countries (generally, though not precisely, member states of the European Union) which are deemed to be safe for various purposes. For example, where the Secretary of State proposes to remove a claimant from the UK to a state of which he is not a national or citizen, that person has, by virtue of paragraph 5(3), no right of appeal on Refugee Convention grounds, and, by virtue of paragraph 5(4), no right of appeal on human rights grounds where the Secretary of State certifies the human rights claim as clearly unfounded, if the state to which it is proposed to remove the claimant is on the relevant list of deemed safe countries. In such cases, where the right of appeal is excluded, the claimant’s only remedy is to apply for permission to seek judicial review. Of course, China is not on any of the lists of safe countries contained in Schedule 3 to the 2004 Act, but the Secretary of State has never argued that the Appellant in this case was not entitled to appeal to the FTT. The statutory concept of a “safe third country” is thus immaterial.[27]By a new section 80B of the Nationality, Immigration and Asylum Act 2002, introduced with effect from 28 June 2022, the Secretary of State is given the power to declare an asylum claim inadmissible where the claimant has a connection to a “safe third State”. A state cannot qualify as a “safe third State” unless it is one from which a person will not be sent to another state otherwise than in accordance with the Refugee Convention, or in contravention of their rights under ECHR Article 3. Ms Ferguson submits that this gives statutory recognition to the fact that a country from which there is a risk of refoulement cannot be considered safe. But, as with the concept of a “safe third country” referred to in Schedule 3 to the 2004 Act, whether a state is a “safe third State” within this new provision only affects rights of appeal. The Secretary of State has never taken a decision to treat the Appellant’s claim for protection as inadmissible. On the contrary, the Home Office gave substantive consideration to his claim, and he exercised his right of appeal to the FTT and then to the UT.[28]Ms Ferguson also relies on the decision in RR (Refugee Safe Third County) (Syria) [2010] UK UT 422. In that case the Upper Tribunal said:- “Third, the type of case with which we are concerned here, involving intended expulsion of a refugee, tends only to arise as a matter of international state practice in situations where the person concerned has some connection with the third state which is said to be safe, based on nationality, prior residence, marriage, entitlement to residence, historical ties etc. [It] does not arise simply because there is a safe third country somewhere. Within the EU, the requirement of a connection is now stipulated in Council Directive 2005/84/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status at Article 27, which states that the application of the safe third country concept shall be subject to rules laid down in national legislation, including “rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country” (Article 27(2)(a)).”[29]Ms Ferguson submits that even if China was a safe country, notwithstanding the Appellant’s long connection with China, it should not be taken as reasonable for him to be returned there because of the cultural differences and attitudes which mean he will never be permitted to integrate or eventually enjoy benefits of citizenship or even permanent residency.[30]I do not see how RR can assist the Appellant. Firstly, it deals with cases where the statutory concept of a “safe third country” applies. Secondly, it requires the claimant to have a real connection with the state with which it is proposed to remove him. The Appellant lived in China from the age of one until he was granted a student visa to come to the UK in 2020. He plainly has a real connection with that country.

The documents issue

[31]The general rule is well-established by decisions of this court such as HF (Iraq) v SSHD [2013] EWCA Civ 1276 and MA (Ethiopia) [2009] EWCA 289. If an Appellant alleges that he will not be allowed to enter the country to which it is proposed he should return he will be expected to have made an application. As Elias LJ said in MA (Ethiopia) the “tribunal could in the normal case require the applicant to act bona fide and take all reasonably practicable steps to obtain the requisite documents for her to return.”[32]Ms Ferguson accepted in oral argument that as a free-standing point this argument cannot succeed. If the evidence before the FTT had shown a real risk to the Appellant on return to China, either of ill-treatment within China or of refoulement, then the Appellant would not need this argument. But in the absence of such findings the answer is the one given by MA (Ethiopia).

The risk of indirect refoulement

[33]This issue, as I have already noted, was briefly alluded to by the Appellant in his witness statement to the FTT which on this point does not appear to have been the subject of cross-examination. There were apparently no submissions on the subject to the FTT and it is therefore hardly surprising that the question was not considered in the FTT judgment. Similarly, it was not the subject of a ground of appeal to the Upper Tribunal, nor of argument before the Upper Tribunal and was therefore not considered in UTJ Hanson’s decision. The policy of both the FTT and the UT is very hostile to allowing points to be raised for the first time on appeal. For example, in Lata (FTT: principal controversial issues) [2023] UKUT 00163 (IAC), Dove J (President) and UTJ O’Callaghan said that:- “27. A judge sitting in the FtT can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing of the appeal. The parties are obliged by rule 2(4) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 to help the Tribunal to further the overriding objective, and to cooperate with the Tribunal generally. The parties are under a duty to provide the FtT with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the FtT to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the FtT. 28. It follows that unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.”[34]This is to some extent a stricter approach than that applied by this court in cases such as Singh v Dass [2019] EWCA Civ 360 where Haddon-Cave LJ said:- “15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below. 16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court. 17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either(a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]). 18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point;(b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and(c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22 at [29]).”[35]I accept Mr Irwin’s submission that we should adopt the Lata approach in the present case, since that is what the Upper Tribunal would have done if the point had been raised for the first time before them. I would leave for future consideration whether Lata would be applicable in its full rigour where this would result in serious injustice. In the present case I am satisfied that it would not cause injustice. As Mr Irwin has confirmed on behalf of the Respondent, if the Appellant wishes to make a submission now that fresh evidence exists relating to a risk of refoulement from China to Yemen, he could apply to the Secretary of State to reconsider his case under paragraph 353 of the Immigration Rules.[36]I have considered whether the point was “Robinson obvious” (the reference being to the decision of this court in R v Secretary of State for the Home Department ex p Robinson [1998] QB 929), particularly having regard to what the Appellant had said in his witness statement. However, it was not spotted by either Judge O’Hanlon in the FTT or Judge Hanson in the UT, nor by counsel (respectively Ms Ferguson and Mr Muquit) who appeared for the Appellant in either tribunal below. It cannot be reasonably be said that they all missed an obvious point.

The Abunar point

[37]Rule 339C (3) of the Immigration Rules, as worded at the time of the Home Office decision in the Appellant’s case, stated: “339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;(ii) they do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;(iii) substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and(iv) they are not excluded from a grant of humanitarian protection. (i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom; (ii) they do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006; (iii) substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and (iv) they are not excluded from a grant of humanitarian protection.[38]In Abunar (Para 339C:
“country of return”) [2018] UKUT 00387 (IAC) a two judge panel of the Upper Tribunal (Ockleton VP and UTJ Conway) held that “it appears that paragraph 339C of the Immigration Rules does not correctly transpose the relevant provision of the Qualification Directive”
. The phrase used in the Directive is “country of origin”. The UT said that “it appears to follow that para 339C does not correctly transpose the relevant provisions of the Directive”. The decision is a brief one and the legal argument appears to have been limited, as might be expected given that the SSHD was represented by a presenting officer and Mr Abunar appeared in person. In the present case the point was not raised at all by or before the FTT or the UT. It cannot possibly be said to be “Robinson obvious”.[39]It is of interest to note that with effect from 11 May 2022 paragraph 339C (3) of the Rules was amended so that for the phrase “country of return” there is substituted “country of origin”. An Explanatory Note to the relevant statement of changes to the Rules says that this change was made as a result of the revocation of the 2006 Regulations. So it may be that in future decisions on this point the supposed defect in the rules identified in Abunar will no longer fall for consideration. Be that as it may, we took the view during the hearing that permission to raise the point for the first time in this court should be refused. It is therefore unnecessary to consider Mr Irwin’s learned and detailed submissions on EU law.

Conclusion

[40]I would dismiss this appeal.[41]I agree.[42]I also agree.

Cited in 1 later judgment