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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> WU v Secretary Of State For Home Department [2002] EWCA Civ 1189 (5 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1189.html Cite as: [2002] EWCA Civ 1189

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Friday, 5th July 2002

1. LORD JUSTICE RIX: Mr Wu is an illegal immigrant in this country from Southern China. He was brought here with the assistance of Snakehead gangs to whom he paid a deposit of 90,000 yen which he had had to borrow itself from loan sharks. He owes the Snakehead gangs - or, at any rate, did so before he began some repayments - a further 130,000 yen. He arrived here on 2nd November 2000. Following temporary admission, he has been free since January 2001 and we are told that he has been working here since March 2001. He has continued to work to date and has been earning a sufficient wage to have sent home to China some £6,000. We are told he still owes over 150,000 yen. His debts typically carry interest of 2 per cent a month.
2. Mr Wu puts his case on the basis of Article 3 of the European Convention of Human Rights on the ground that if he returned to China he would be subject to treatment from the Snakehead and loan shark gangs to whom he is indebted, which would be incompatible with that article. His case to this effect succeeded before the special adjudicator. It is of course well known and accepted that at any rate in the case of illegal immigrants who have managed to obtain entry to this country undetected, and thus are in a position to be found work and to make remittances back to China, that if such successful entrants do not maintain the payments required of them by the gangs to which they are indebted then either they or their families still remaining in China are subject to harassment, possibly of the most violent and even fatal nature.
3. The Secretary of State appealed against the decision of the special adjudicator to the Immigration Appeals Tribunal. It is the decision of that tribunal delivered on 30th November 2001, chaired by Mr D K Allen, with which this court is concerned on Mr Wu's application for permission to appeal.
4. The tribunal's decision is essentially to this effect. It was debated before the tribunal whether Mr Wu's burden of proof was what was said to be the lower burden of showing a reasonable degree of likelihood of conduct violating Article 3 or whether it was what is said to be the higher burden of showing substantial grounds for a real risk of such a violation. The tribunal was prepared to approach the case on the basis of the lower standard of proof of a reasonable degree of likelihood. Mr Wu's credibility as a witness was also debated before the tribunal but the tribunal accepted him as a credible witness. In the end the tribunal made clear findings of fact on the basis of the evidence put before it, evidence which is essentially summarised in the China Country Assessment produced by CIPU to the effect that a distinction has to be made between successful illegal entrants and unsuccessful entrants who are detected and returned by the authorities to China. The former have been called "safe" entrants and the latter "unsafe" entrants so as to express this conclusion of the four experts whose accounts and evidence were relied on by the tribunal. But it is only in the case of a successful or so called safe entrant who is in a position to work and return monies to China that the gangs in question extract severe punishment if such an entrant fails to keep up the payments to which he has bound himself; whereas in the case of unsuccessful or so called unsafe entrants, who are returned to China where they are not of course in a position to work abroad and earn sums which can be remitted to China to defray their liabilities to the gangs to whom they are indebted, there the gangs do not seek, as it were, to extract blood out of a stone and so they release the payments concerened.
5. The tribunal found that this distinction between successful and unsuccessful, or safe and unsafe, entrants was made good on the objective evidence before them and was what they said to be "clearly soundly based and credible". They also considered that there was a common sense logic to that objective evidence in that if a returned unsuccessful entrant were treated badly, then it would discourage further candidates from the attempt at illegal entry abroad, and from undertaking the great risks involved. If failure in their endeavour to place themselves abroad was to end not only in that failure but also in their complete exposure back in China to the gangs in question, then the tribunal accepted the matter would indeed be, as the experts' evidence suggested, "bad for business".
6. It follows from the conclusions of the tribunal on the evidence and the facts put before them that even if the burden of proof had been upon the Secretary of State to undertake, as it were, the difficult burden of proving the negative that Mr Wu was not exposed to risk of ill treatment by the gangs on his return to China, then the Secretary of State would, in the view of this tribunal, have met that difficult burden.
7. Nevertheless, on this application in his notice of appeal and skeleton arguments, both the original skeleton and the supplementary skeleton arguments, and in the oral submissions which have been helpfully put before the court by Mr Wu's litigation friend, Mr Yuen, it has been submitted on Mr Wu's behalf in various ways, under various grounds of appeal, that the position is otherwise. It is said, in effect, that either the burden is in one form or another upon the Secretary of State, or that if the burden is upon the applicant then the tribunal misunderstood the standard of proof and imposed the wrong standard of proof, or it is suggested that on the facts the tribunal's decision is simply irrational and perverse.
8. Mr Yuen also submitted that it was undesirable in principle that a tribunal decision such as this should influence special adjudicators in other cases, when those adjudicators would not have available to them all the source material available to a tribunal but would only have the summaries to be found in a Country Assessment such as the one before the tribunal in this case, and before this court again today. Mr Yuen has to accept that there was before the tribunal no positive evidence at all in favour of the contention that an unsuccessful entrant returned to China would be subject to maltreatment by the gangs, but he submits that the tribunal simply should not speculate as to what the position is in the absence of such evidence. The position is, it seems, that in any event there are few cases of such returned unsuccessful entrants taken back to China.
9. In my judgment, this is simply another way of seeking to reverse the true burden of proof, which, low as it is, and subject of course to the anxious scrutiny involved in such cases, remains upon the applicant. It is also simply another way of submitting that the positive evidence accepted by the tribunal concerning the case of unsuccessful enetrants returned to China simply should not have been so accepted. In support of that last submission Mr Yuen has drawn the court's attention to the decisions of two other special adjudicators in different cases. One is the case of Fan Chen, a decision of the adjudicator M D Dennis who referred in the course of his decision of 31st May 2001 to the case of that appellant, who, after being smuggled by gangs into Japan and having worked there for over 2 years and made many remittances before being returned to China, had, in the words of the adjudicator, "agreed voluntarily to participate" in a scheme by which he had been returned by the gangs to this country in order to pay off the balance still outstanding of his debt. The adjudicator referred to such a scheme as being effectively one of servitude. Nevertheless even in that case the special adjudicator did not accept that such an unsuccessful entrant, would be subject to ill treatment by the Snakeheads.
10. Mr Yuen has also put before us a more recent determination in Chen Yu-Oiu of adjudicator R A McKee promulgated on 9th April 2002. There, despite the tribunal's decision in this very case which had been put before that adjudicator, he nevertheless allowed that appellant's appeal on the basis of his own personal experience of attending a seminar on illegal immigration from Southern China at the Institute of Chinese Studies, There he had personally met experts in the field by whom he was persuaded that there did exist a real risk for unsuccessful immigrants upon their return to China in the sense that even if they were not subject to violence they were subject to a form of compulsion which forced them into prostitution at home or into being taken abroad again to another foreign country to work there and repay their debts.
11. So Mr Yuen invoked, as it were, material from those two different cases in support for his application for permission to appeal in this case.
12. The fact remains however that this court only has jurisdiction to allow an appeal from the tribunal on the basis of an error of law. It does not seem to me that Mr Yuen has been able to identify such an error of law. I can find no error of law in terms of the burden of proof or standard of proof adopted by the tribunal. In any event, the tribunal's findings of fact would have sustained even a burden of proof resting on the Secretary of State. The tribunal made clear findings of fact to which I have referred and which I find myself unable to describe as irrational or perverse. It is of course of the nature of all such cases that they all turn upon the evidence produced in the individual cases. None of these decisions are in any way binding on any other and, indeed, the most recent decision in Chen Yu-Qiu, the decision of adjudicator McKee, indicates just how it is possible that in the light of further or new or different elements one special adjudicator is quite able, and is entitled, to take a different view from that of another, or even to take a different view from the decision on the facts taken by the tribunal itself in another case.
13. I can find - of course it must be a matter of regret to Mr Wu - no error of law or irrationality in the tribunal's decision before this court. Of course if evidence bearing upon a case such as this changes in a substantial and material way it is in theory possible in, admittedly, restricted circumstances to make a new application. In mentioning that, I extend no encouragement at all to Mr Wu in the circumstances of his case. The fact remains that that is a process which exists to deal with cases where evidence changes significantly over time and thus merits a second look. Having said that, I emphasise again, I intend no encouragement to Mr Wu.
14. For reasons I have stated, I can find no grounds on which I could give permission to appeal and therefore this application is refused.
15. LORD JUSTICE DYSON: I agree.
Order: Application refused