L (China) v Secretary of State For Home Department

For Refugee Convention purposes, Falun Gong practitioners did not, on the evidence before the court, form a particular social group merely because public practice was suppressed. The relevant test requires an immutable characteristic, or one so fundamental to identity or conscience that a person ought not be required to change it. Voluntary association meets that standard only where it is fundamental to human dignity. Public-practice pressure did not meet it here, particularly because membership was informal and private practice was possible. On suitable facts, however, persecution of a Falun Gong practitioner may be based on imputed political opinion. Where a tribunal assesses internal flight without addressing intended continued activities, remittal may be required.

L, a Chinese citizen, claimed asylum after two arrests and alleged ill-treatment arising from her Falun Gong activities. An adjudicator accepted her account, rejected internal relocation as viable, and allowed her asylum and human rights claims. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, finding the credibility assessment unsafe and rejecting membership of a particular social group as the relevant Refugee Convention ground. It also assessed internal flight on the basis that L was not wanted by the Chinese authorities. The Court of Appeal considered whether Falun Gong could constitute a particular social group and whether risk on return should instead be analysed as imputed political opinion, having regard to L’s claimed intention to continue her activities.

Disposition

The Court of Appeal allowed the appeal and remitted the case to a differently constituted Immigration Appeal Tribunal.

1. Particular social group. The governing approach under article 1A of the Refugee Convention was found in R v IAT ex p Shah [1999] 2 AC 629, together with the principles discussed in the related authorities. A relevant characteristic must be beyond the individual’s power to change, or so fundamental to identity or conscience that the individual ought not be required to change it. Voluntary association qualifies only where it is fundamental to human dignity. A possible breach of a Convention right, without more, is insufficient. The Court was bound by Shah and could not adopt the lower threshold suggested from the UNHCR Guidelines.
2. Falun Gong. On the evidence before the court, membership of Falun Gong did not satisfy that test. The movement had no membership lists, people could join or leave by choice, and its exercises could be practised privately at home without significant risk. The Court was not prepared to treat pressure to stop practising publicly as requiring renunciation of core human rights entitlements.
3. Imputed political opinion. The Secretary of State accepted that, on appropriate facts, a Falun Gong practitioner might have a well-founded fear of persecution based on imputed political opinion. The Court considered that the better approach to such a case, on the evidence available, was to examine that ground. It did not determine whether Falun Gong was a religion, since the material was insufficient and L had disavowed that case.
4. Remittal. L’s case before the adjudicator was that she would continue her activities if returned. The IAT had approached internal flight on a different factual basis and had failed to address that issue. The matter was therefore remitted. The differently constituted panel could revisit the Secretary of State’s original grounds if fairness permitted, and L could advance the imputed political opinion argument.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 1441; appeal allowed and case remitted to a differently constituted Immigration Appeal Tribunal.
• Immigration Appeal Tribunal — determination dated 21 October 2003; allowed the Secretary of State’s appeal from the adjudicator and rejected the particular social group and internal flight approaches.
• Adjudicator — decision dated 27 January 2003; allowed L’s appeal against the Secretary of State’s refusal dated 27 August 2002 of leave to enter, asylum and human rights claims.