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

In a return-risk appeal, the tribunal must assess all the evidence and decide whether the appellant has shown a real risk of persecution or serious ill-treatment. Describing that inquiry as involving a shifting burden of proof is confusing and unhelpful. Adam does not establish a general transfer of the burden in double-jeopardy cases, although an evidential obligation may arise from particular procedural circumstances. A tribunal may find no real risk of re-prosecution where the evidence supports that conclusion, even though the foreign state treats the relevant offence seriously. Appellate intervention is unwarranted where the tribunal’s conclusion is open to it on the evidence.

The appellant, a Chinese citizen, was convicted in the United Kingdom of producing cannabis and became subject to automatic deportation. He claimed asylum and human-rights protection, arguing that the Chinese authorities might re-prosecute him or impose severe punishment on return. The Secretary of State refused his representations and made a deportation order. An initial tribunal dismissed his appeal; reconsideration was ordered, but the Upper Tribunal dismissed it on 21 January 2011. The issue before the Court of Appeal was whether the Upper Tribunal had erred in law by finding no real risk of re-prosecution on return.

Appeal dismissed unanimously. Lord Justice Hooper gave the principal judgment. Lord Justice Toulson and the Master of the Rolls agreed.

1. The accepted background was that the criminal law of the PRC permits extra-territorial prosecution of Chinese citizens for crimes committed overseas, including after punishment abroad. The Upper Tribunal had not separately assessed the risk of execution because it had found no real risk of re-prosecution.
2. The Upper Tribunal was entitled to conclude that this appellant would not be re-prosecuted. It could accept that the PRC treated drug offences seriously while treating the appellant’s particular role, circumstances and relatively small-scale cannabis cultivation as not unusually serious. It was also entitled to conclude that routine questioning and light monitoring would not amount to serious harm or persecution.
3. The tribunal’s task is to examine all the evidence, including independent background material, and ask whether the appellant has shown a real risk on return. The language of shifting burdens of proof is confusing and unhelpful.
4. Adam v SSHD [2003] EWCA Civ 265 did not establish that the burden generally shifts to the Secretary of State in double-jeopardy cases. Its discussion of an evidential burden arose from the particular circumstance that favourable Home Office evidence was challenged without proper notice or rebuttal evidence. The approach in AS (Libya) v SSHD [2008] EWCA Civ 289; [2008] HRLR 28, citing N. v. Finland no. 38885/02, likewise did not change the burden of proof.
5. The Upper Tribunal’s evidential conclusions were open to it and disclosed no error of law. The appeal was dismissed, with no remittal.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 77, 10 February 2012: dismissed the appeal.
• Upper Tribunal (Immigration and Asylum Chamber) — SIJs Storey and Roberts, 21 January 2011, appeal number DA/00416/2009: dismissed the appeal on reconsideration.
• Earlier tribunal decision — the appeal was dismissed in August 2009; reconsideration was ordered in November 2009.