LW (China) v Secretary of State for the Home Department

Country guidance that private and discreet Falun Gong practice will not normally create a real risk is not displaced merely because later country-of-origin information contains additional or more troubling material. The specialist tribunal must assess the new material as a whole and apply the guidance flexibly, asking whether individual circumstances or special factors are likely to bring the practitioner to official attention.

An applicant’s likely conduct and reasons for concealment require an individual, fact-specific assessment. A claim based on attending demonstrations cannot succeed without evidence that such demonstrations occur on return and that spectators face a relevant risk.

The appellant, a Chinese national, arrived in the United Kingdom in 1999 and later had three children with his Chinese wife. His asylum claim, based on alleged risk arising from Falun Gong practice, was dismissed by the First-tier Tribunal in April 2010. The Upper Tribunal set aside that determination, reconsidered the case, and dismissed the appeal on all grounds in a determination dated 9 March 2011.

The appeal concerned whether newer country-of-origin information had materially altered existing country guidance on private Falun Gong practice, and whether the principles in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 required consideration of the appellant’s attendance as a spectator at demonstrations on return to China.

1. Appeal dismissed. The Upper Tribunal had not erred in law by concluding that the existing country guidance in LL (Falun Gong – Convention Reason – Risk) China CG [2005] UKIAT 00122 remained appropriate.
2. The newer country-of-origin information contained additional material, including potential difficulties in concealing private practice, rewards for information, and evidence of intensified suppression. A country-of-origin report is a composite of material from different sources, which may not be consistent. The Upper Tribunal was entitled to assess the material overall and conclude that it did not represent a material change from the evidence underlying the guidance.
3. The guidance was sufficiently flexible. Its statement that private and discreet practice would not normally create a real risk left room for particular features or special factors in an individual case. A tribunal must therefore consider how the particular applicant is likely to behave on return and any circumstances likely to bring him to the authorities’ attention. The Upper Tribunal did so. Its findings that the appellant’s practice had always been discreet and that he would not undertake conduct attracting official attention were not open to challenge. His three children, born abroad, did not constitute a breach of the relevant family-planning policy.
4. The court also considered the separate argument based on HJ (Iran). It accepted that, in theory, the appellant might not be expected to give up spectating at demonstrations on return. The point was academic, however, because there was no evidence of public Falun Gong demonstrations in China or that attendance as a spectator would create a risk. The other members of the court agreed with Black LJ.

• Court of Appeal (Civil Division). On 24 April 2012, dismissed the appeal from the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber). On 9 March 2011, set aside the First-tier Tribunal’s determination, reconsidered the case, and dismissed the appeal on all grounds.
• First-tier Tribunal. Dismissed the appellant’s appeal in April 2010.