Factual and Procedural Background
The Appellant, a male citizen of Yemen born in 2000, applied for asylum and humanitarian protection in the United Kingdom on 6 February 2020. He feared persecution from Houthi rebels and the general situation in Yemen, as well as fear from Chinese authorities. The Appellant had lived in China since infancy but did not hold Chinese nationality. The Respondent refused the asylum application on 25 November 2020. The Appellant appealed on grounds that removal would breach the UK's obligations under the 1951 Refugee Convention and humanitarian protection rules.
At the First-Tier Tribunal (FTT) hearing in July 2021, the Appellant's asylum claim was dismissed, but humanitarian protection was granted with respect to Yemen, while claims relating to China were dismissed. Permission to appeal to the Upper Tribunal (UT) was granted, but the UT dismissed the appeal in July 2022, finding no material error of law.
Subsequently, the Appellant sought permission to appeal to the Court of Appeal, which was granted in April 2024. The substantive appeal was listed in October 2024 but adjourned for further submissions on issues including the safety of return to China and procedural questions regarding the Qualification Directive. Further evidence was submitted by the Appellant in April 2025, but not formally admitted as fresh evidence.
Legal Issues Presented
- Whether the Appellant faces a real risk of persecution or serious harm if returned to China.
- Whether China qualifies as a safe third country for the purpose of the Appellant's removal.
- The relevance and burden of proof concerning the Appellant's ability to obtain a visa or residence permit for China.
- The risk of indirect refoulement from China to Yemen and the Appellant's associated protection rights.
- The correct interpretation and application of paragraph 339C of the Immigration Rules in light of the Qualification Directive and the Abunar decision.
Arguments of the Parties
Appellant's Arguments
- The Appellant fears persecution from both the situation in Yemen and from Chinese authorities due to his family's involvement in a conference raising awareness about Yemeni war and Uighur issues.
- He lacks Chinese citizenship or settled status, and his residency permit expired in July 2020, making return to China unlikely or unsafe.
- The burden should not be on the Appellant to prove he can obtain a visa or residence permit for China; the Respondent must establish the safety and viability of return to China.
- Return to China would expose him to harassment or persecution, and the Appellant's family has suffered abuse and ongoing harassment by Chinese authorities.
- The Appellant is entitled to humanitarian protection as return to Yemen is not feasible, and China is not a safe alternative.
- There is a risk of indirect refoulement from China to Yemen, which has not been properly considered by lower tribunals.
- The Immigration Rules incorrectly transpose the Qualification Directive regarding the "country of return," and the Appellant should be granted humanitarian protection accordingly.
Respondent's Arguments
- The Respondent accepts the Appellant's identity and nationality but disputes that he qualifies as a refugee under the 1951 Refugee Convention.
- Humanitarian protection is accepted as appropriate in relation to Yemen due to risk of serious harm.
- The Respondent contends the Appellant's fear of persecution from the Houthi tribe is speculative and inconsistent.
- China is presented as an alternative country of return where the Appellant has lived most of his life, received education, and where his family resides.
- The Appellant has not demonstrated efforts to obtain a visa or residence permit for China, and the burden lies on him to act bona fide in this respect.
- The Appellant's claims regarding risks in China are speculative and lack credibility, as he was permitted to leave China after questioning.
- The Appellant does not satisfy requirements for leave to remain in the UK on family or private life grounds.
- The Respondent relies on established case law that absence of proper documentation does not in itself establish a real risk of harm or prevent return.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| HJ (Iran) v SSHD [2010] UKSC 31 |
Definition and threshold of "persecution" under the Refugee Convention |
Used to clarify that discrimination and harassment do not necessarily amount to persecution; applied to Appellant's claims regarding China. |
| MF (Venezuela) v SSHD [2014] EWCA Civ 826 |
Clarification that discrimination alone is insufficient for persecution |
Supported the FTT's conclusion that the Appellant's family's treatment in China amounted to harassment, not persecution. |
| GH (Former Kaz, Country Conditions) Iraq CG [2004] UKIAT 248 |
Guidance on claims involving return to country of origin |
Referenced by the UT in assessing relevance of visa or residency permit applications for return. |
| GH v Secretary of State for the Home Department [2005] EWCA Civ 1182 |
Burden of proof and relevance of country of origin in asylum claims |
Considered by UT regarding visa/residency permit issues, noting these cases concern return to country of origin. |
| HF (Iraq) and Others v SSHD [2013] EWCA Civ 1276 |
Requirement for bona fide efforts to obtain necessary travel documents for return |
Applied by UT to hold Appellant had not made necessary efforts to obtain Chinese visa/residency permit. |
| MA (Ethiopia) [2009] EWCA 289 |
Expectation that claimants take reasonable steps to facilitate return |
Supported the principle that the Appellant must act bona fide in seeking documents to enable return to China. |
| RR (Refugee Safe Third Country) (Syria) [2010] UKUT 422 |
Requirement of a real connection to a safe third country for removal |
Considered in relation to whether China could be deemed a safe third country given Appellant's connection. |
| Abunar (Para 339C: "Country of Return") [2018] UKUT 387 (IAC) |
Interpretation of Immigration Rules vis-à-vis Qualification Directive on "country of return" |
Discussed regarding discrepancy in rules and directive; permission to raise point first time on appeal refused. |
| R v Secretary of State for the Home Department ex p Robinson [1998] QB 929 |
Principle on raising new points of law on appeal ("Robinson obvious") |
Applied in deciding that risk of refoulement point was not "Robinson obvious" and thus not admitted on appeal. |
| Singh v Dass [2019] EWCA Civ 360 |
Guidance on when new points can be raised on appeal and evidentiary considerations |
Referenced in relation to the strict approach on raising new points not presented below. |
Court's Reasoning and Analysis
The court carefully reviewed the factual matrix and legal submissions concerning the Appellant's claims of fear of persecution in Yemen and China. It accepted that Yemen presented a situation of indiscriminate violence warranting humanitarian protection, which was uncontroversial and not appealed. The critical issue concerned China as an alternative country of return.
The First-Tier Tribunal's factual findings, upheld by the Upper Tribunal, were that the Appellant's risk of persecution in China was based on his family's experience rather than his own direct mistreatment. The court noted that the Appellant was an adult with a minor role in the conference that triggered scrutiny, and had been allowed to leave China after questioning. The treatment of the family was characterized as harassment and discrimination, not persecution under the Refugee Convention.
The court emphasized established legal principles requiring claimants to act bona fide and take reasonable steps to obtain necessary travel documents for return. The Appellant had not demonstrated efforts to obtain a visa or residence permit for China, and the absence of such efforts was a relevant factor in assessing the feasibility and safety of return.
The concept of a "safe third country" under immigration law was considered, but the statutory provisions relating to safe third countries did not apply to China in this case, and no inadmissibility decision was taken by the Secretary of State. The Appellant's real connection with China through long residence and family ties was acknowledged.
The court declined to admit new points raised for the first time on appeal, including the risk of indirect refoulement from China to Yemen and the argument based on the Abunar decision concerning the correct interpretation of the Immigration Rules vis-à-vis the Qualification Directive. The court applied the principle that points not raised below and not "Robinson obvious" should not be entertained on appeal.
Overall, the court found no error of law in the decisions of the FTT and UT, and concluded that the Appellant's claim of risk on return to China was not established on the evidence presented.
Holding and Implications
The court DISMISSED the appeal.
The direct effect of this decision is that the Appellant's asylum and humanitarian protection claims relating to return to China remain rejected, and the prior findings by the FTT and UT stand. The Appellant retains humanitarian protection in relation to Yemen but is expected to consider return to China as a viable alternative. No new precedent was established by this ruling, and the court emphasized adherence to procedural rules regarding the raising of new issues on appeal.