He v Secretary Of State For the Home Department

An asylum claim cannot be determined on the assumption that an applicant will avoid persecution by modifying or restricting the expression of protected beliefs where that issue is legally material. The question whether such conduct is unreasonable, and whether resulting risk is relevant, requires proper consideration. Where the status of the belief or movement within the Convention’s protected categories remains unresolved, the court should avoid reaching a concrete conclusion on the asylum claim. The relevant issues should be addressed at a full hearing with the Secretary of State given an opportunity to respond.

The applicant, a Chinese national and Falun Gong practitioner, renewed an application for permission to appeal against an Immigration Appeal Tribunal decision upholding an adjudicator’s conclusion that she was not entitled to asylum.

The Tribunal had proceeded on the basis that she could safely return to China if she continued practising Falun Gong privately and alone. The central issue was whether safety could lawfully be assessed on the assumption that an asylum seeker would modify or restrict the public expression of her convictions, or whether it had to be assessed by reference to her beliefs and their expression as they were.

1. Application adjourned. The Court considered that the proposed ground raised a viable issue requiring determination at a full hearing. The issue was whether an asylum seeker could be returned on the basis that she would restrict or modify the expression of her convictions.
2. There was force in the argument, based on Thomas Danian v Secretary of State for the Home Department [1999] INLR 533 and Iftikhar Ahmed v Secretary of State for the Home Department [2000] INLR 1, that even unreasonable conduct by an asylum seeker should not lead to return if that conduct would expose the applicant to a real risk of persecution. The Court did not finally determine that issue.
3. The proper analysis also depended on the classification of Falun Gong. It might be a religion, a social group, a political movement, or more than one of those categories. If it were a religion, requiring private and isolated practice could engage Article 9. Similar difficulties could arise if it were treated as a social or political group.
4. Until it was decided whether Falun Gong fell within a Convention-protected category, no concrete result could be reached in the applicant’s case. The application was therefore adjourned to be listed on notice to the Home Department, with the transcript supplied to the Secretary of State and a request for a skeleton argument before the renewed hearing. Public funding costs were to be assessed.

• Court of Appeal (Civil Division): renewal of an application for permission to appeal from the Immigration Appeal Tribunal; the application was adjourned to be listed on notice to the Home Department.
• Immigration Appeal Tribunal: upheld the adjudicator’s decision.
• Adjudicator: confirmed the Secretary of State’s decision that the applicant was not entitled to asylum.