WU v Secretary of State for the Home Department

In an Article 3 protection claim, the burden remains on the applicant, although the applicable standard is a low one requiring a reasonable degree of likelihood of prohibited treatment. The appellate court may interfere with an Immigration Appeals Tribunal decision only for an error of law. It cannot re-evaluate findings of fact merely because different adjudicators have reached different conclusions. Findings based on accepted evidence will stand unless they are irrational or perverse. Decisions of special adjudicators and the Tribunal are fact-sensitive and do not bind decision-makers in other cases.

Mr Wu, a Chinese national who had entered the United Kingdom illegally with debts to Snakehead gangs and loan sharks, succeeded before a special adjudicator on the basis that return to China would expose him to treatment contrary to Article 3 of the European Convention on Human Rights.

The Secretary of State appealed to the Immigration Appeals Tribunal. The Tribunal accepted Mr Wu as credible, applied the lower standard of proof, and found that the objective evidence distinguished successful illegal entrants able to remit money from unsuccessful entrants returned to China. It concluded that the latter were not exposed to the same risk of violent enforcement.

Mr Wu applied to the Court of Appeal for permission to appeal, alleging errors concerning the burden and standard of proof and irrationality. The central issue was whether the Tribunal had erred in law.

1. Application refused. The Court of Appeal could grant permission only if Mr Wu identified an error of law in the Tribunal’s decision.
2. The burden of proof remained on the applicant. The standard was low and required a reasonable degree of likelihood of treatment violating Article 3. The Tribunal had adopted that approach correctly.
3. The Tribunal’s factual findings were supported by the evidence. Its distinction between successful illegal entrants, who could work abroad and remit money, and unsuccessful entrants returned to China was objectively supported and logically explained. Even if the burden had rested on the Secretary of State, the Tribunal considered that it would have been discharged.
4. The court rejected the contention that the Tribunal should have refrained from drawing conclusions because other special adjudicators had reached different views. Individual decisions turn on the evidence in each case. None was binding on another decision-maker, and the later determination in Chen Yu-Qiu illustrated that a different conclusion could properly follow from further, new or different evidence.
5. The Tribunal’s conclusions were neither irrational nor perverse. A further application might theoretically be possible if evidence changed substantially and materially, but the court gave no encouragement to such an application.

• Court of Appeal (Civil Division): refused permission to appeal and the application for an extension of time, finding no error of law or irrationality in the Immigration Appeals Tribunal’s decision.
• Immigration Appeals Tribunal: on 30 November 2001, allowed the Secretary of State’s appeal from the special adjudicator’s Article 3 decision, applying the lower standard of proof and rejecting the asserted risk on the evidence.
• Special adjudicator: allowed Mr Wu’s claim under Article 3 of the European Convention on Human Rights.