The Court of Appeal (CoA) heard a case underscoring critical procedural and substantive points for asylum and humanitarian protection claims in the UK.
Background:
The appellant is a male citizen of Yemen who was born in 2000. Although a Yemeni national, he has resided in China with his family since he was one year old. His father operated an import-export business in China, and the family's residency permits required annual renewal. Upon turning eighteen, the appellant continued to reside in China on a student visa.
In January 2020, the appellant left China for the UK to continue his higher education. During his departure, Chinese airport security questioned him and temporarily retained his passport. Upon arriving in the UK, he learned of rumours that the Chinese government had begun arresting Yemenis who attended a conference organised by his father. Shortly after his departure, on 25th January 2020, Chinese Intelligence and local police visited his father's workplace in China. His father was questioned about his work and family, physically and verbally abused, and his Yemeni passport was confiscated.
He was accused of organising an unlicensed conference.
On 6th February 2020, the appellant applied for asylum and humanitarian protection in the UK, which was formally refused by letter on 25th November 2020. The Secretary of State conceded that the appellant was entitled to humanitarian protection regarding Yemen, acknowledging a risk of serious harm under Article 15(c) of the Qualification Directive (QD) based on Article 3 of the ECHR, if he were returned there. However, it did not accept that he was a refugee from Yemen, considering his fear of the Houthis to be speculative. The SSHD proposed China as an alternative country of return, asserting it was a safe and reasonable destination given his extensive residence and education there, and the presence of his family.
The appellant appealed against the decision on the 8th December 2020. At the First-tier Tribunal (FTT), the appellant argued that it was unreasonable to expect the appellant to return to China when he is not Chinese, does not hold a Chinese visa, and has no right of return. The appeal was dismissed by the FTT in July 2021. He unsuccessfully appealed to the Upper Tribunal (UT) on the ground that his return to China was irrational, given the lack of a viable visa or residency permit.
Decision:
The CoA dismissed the appeal. The Court upheld the FTT’s finding that it was not reasonably likely that the appellant would suffer persecution or serious harm if returned to China.
Lord Justice Bean clarified that the statutory concept of "safe third country" (as defined in Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act (AITCA) 2004 and the more recent Section 80B of the Nationality, Immigration and Asylum Act (NIAA) 2002) was immaterial to this case.
These statutory provisions primarily affect rights of appeal or inadmissibility decisions, neither of which applied here.
Regarding the reliance on RR (Refugee Safe Third Country) (Syria), which discusses the need for a "connection" to a third state, the Judge found it did not assist the appellant. While RR applies where the statutory concept of a safe third country applies (which it doesn't here), even if it did, the appellant plainly had a "real connection" to China, having lived there from the age of one until 2020.
Lord Justice Bean reaffirmed the "well-established general rule" from cases like HF (Iraq) and MA (Ethiopia) where, if an appellant claims they will not be allowed to enter the country of proposed return, they are expected to have made an application or taken all reasonably practicable steps to obtain the necessary documents.
Another interesting aspect was the discrepancy arising between Immigration Rule 339C and the QD regarding the meaning of ‘country of return’. As this point was not raised at all before the FTT or the UT, and was "not possibly" "Robinson obvious”, and so permission to raise this point was refused.
Implications:
This case reaffirmed the need for procedural rigour and the importance of comprehensive pleading and argument at the earliest possible stage. Despite refoulement being a fundamental concept in international protection, merely mentioning it vaguely in a witness statement is insufficient. It must be clearly articulated as a distinct ground of appeal and supported by relevant submissions and evidence.
The judgement reaffirmed that, where there is no accepted primary risk of persecution or serious harm in a proposed alternative country, the onus remains on the appellant to demonstrate that they genuinely cannot obtain the necessary travel documents or entry clearance.
The CoA explicitly endorsed the Lata approach, which is highly restrictive about raising arguments for the first time at higher appellate levels. If a point is not put to the FTT, unless "Robinson obvious," which is a very high bar and rarely met, it is highly likely to be shut out at the UT and CoA.
