A v Secretary Of State For The Home Department

Past conduct and treatment may be important, and usually necessary, evidence when assessing an asylum seeker’s future risk, but absence of past persecution is not conclusive. A decision must be read as a whole. An infelicitous reference to practising privately and alone did not impose an unlawful requirement of isolation where the underlying findings permitted practice with others away from the authorities. The relative weight given to expert evidence and an in-country report is a question of fact where both have been conscientiously considered. No arguable error of law was shown, so permission to appeal was refused.

The applicant, a Chinese national and Falun Gong practitioner, claimed that return to China would expose her to a real risk of persecution. The Secretary of State, an immigration adjudicator and the Immigration Appeal Tribunal rejected the claim, finding that she could continue practising privately, either alone or with friends at secret locations, without appreciable risk.

She renewed an application for permission to appeal, arguing that the Tribunal had unlawfully restricted safe practice to isolation, had treated the absence of past persecution as determinative of future risk, and had wrongly assessed the evidence. The Court also considered, but did not decide, whether Falun Gong fell within a protected Refugee Convention category.

1. Disposition. Lord Justice Sedley held that no issue of law was capable of engaging the Court’s attention. Sir Murray Stuart-Smith agreed. The application for permission to appeal was refused, with a public funding assessment of the applicant’s costs. The anonymisation direction was continued.
2. Assessment of future risk. The adjudicator had not treated past events as conclusive of future risk. His reliance on what had happened before the applicant left China was an appropriate and usually necessary part of assessing what might happen on return. The complaint that the Tribunal had assumed that absence of past persecution determined the future risk therefore failed.
3. Private practice. Read in context, the Tribunal’s reference to practising privately and alone was, at most, infelicitous phrasing. The findings adopted by the Tribunal were that the applicant could practise either alone or with friends, provided that practice remained away from the authorities. The broader question whether an asylum seeker may be expected to constrain public religious practice did not arise because the applicant had never sought, and had shown no intention of seeking, to practise Falun Gong publicly.
4. Evidence and Convention status. Both the expert evidence and the in-country report had been conscientiously considered. Their relative weight was a matter of fact for the specialist decision-makers, not an appellate issue of law. The Court did not determine whether Falun Gong was a religion, a real or imputed political opinion, or a particular social group. It proceeded on the assumption that it was capable of engaging the Refugee Convention if the other criteria were met, while recognising that human-rights issues might remain.

1. Court of Appeal (Civil Division): On [2002] EWCA Civ 1171, the renewed application for permission to appeal from the Immigration Appeal Tribunal was refused.
2. Immigration Appeal Tribunal: The Tribunal’s determination was notified on 5 December 2001. It upheld the adjudicator’s findings and concluded that the applicant had not shown a real risk on return.
3. Immigration adjudicator: The adjudicator issued a fully reasoned decision on 13 July 2001. He disbelieved the account of detention and escape and found that the applicant could safely practise Falun Gong privately, alone or with others.