J C (China) v Secretary of State for the Home Department

In a deportation case involving possible re-prosecution in the receiving state, the question is whether the risk reaches a real risk of a breach of a protected human-rights obligation. A merely increased risk does not suffice. The risk under the receiving state’s extra-territorial criminal-law provision is fact-sensitive and depends on individual circumstances, including publicity, official embarrassment, seriousness, political factors, corruption and practical access to evidence. A specialist tribunal may prefer reliable expert evidence. An appellate court should not substitute its factual view and should intervene only for a clear error of law, misdirection or perversity.

The Secretary of State decided to deport the appellant, a Chinese national, to China in the public interest. He had been convicted in the United Kingdom of offences connected with a snakehead people-smuggling gang, sentenced to 14 years’ imprisonment and served seven years.

He argued that return would expose him to prosecution or re-prosecution in China under Articles 7 and 10 of the People’s Republic of China Criminal Law 1997, contrary to Articles 3, 5 and 6 of the ECHR. His Article 8 claim was not pursued before the tribunal. The AIT found some risk of re-prosecution, but not a real risk in most cases, and dismissed his challenge. The central issue was whether the AIT was entitled to reach that factual conclusion.

Appeal dismissed unanimously. The Court of Appeal held that the AIT had made no error of law in concluding that removal did not expose the appellant to a real risk of re-prosecution sufficient to engage the relevant human-rights protection.

1. The appeal concerned the level of risk, not the general law. The issue was not whether deportation increased the possibility of prosecution, but whether the risk reached the threshold of a real risk that a protected right would be breached.
2. Under Article 7 of the People’s Republic of China Criminal Law 1997, the appellant would not face the relevant extra-territorial basis for prosecution because he had already been prosecuted and punished. Article 10 permitted investigation for criminal responsibility for an offence committed abroad, but the risk of prosecution or re-prosecution was a fact-sensitive question in the individual case.
3. The appellate court approached the AIT’s findings with caution, applying the guidance in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49. It was not enough that the Court might have evaluated the evidence differently. Intervention required a clear misdirection in law, perversity or another error of law.
4. The AIT was entitled to rely on Professor Fu’s evidence, which it regarded as careful and reliable, and to find that the appellant’s offences were not of a kind attracting special official attention in China. Relevant considerations included the absence of publicity or Chinese official interest, no request for the United Kingdom case papers, the substantial sentence imposed, the absence of evidence of re-prosecution in comparable cases, and the fact that four of five examples had ended without prosecution.

The Court did not determine the nature of any possible breach under Articles 3, 5, 6 or 8 ECHR. The earlier AIT decisions in WC and SC were no longer to be treated as country guidance on double jeopardy.

1. Asylum and Immigration Tribunal: On full reconsideration, found some risk of prosecution or re-prosecution in China but not a real risk in most cases, and dismissed the appellant’s challenge to deportation.
2. Court of Appeal (Civil Division): In [2009] EWCA Civ 81, dismissed the appeal and held that the AIT had made no error of law.