Case No: C5/2011/1456
Neutral Citation Number: [2012] EWCA Civ 77
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
SIJ STOREY and SIJ ROBERTS
DA/00416/2009
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/02/2012
Before :

THE MASTER OF THE ROLLS
LORD JUSTICE HOOPER
and
LORD JUSTICE TOULSON
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Between :

	YF (China)	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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MS. L. BRAKAJ (instructed by Halliday Reeves) for the Appellant.
MS. S. BROADFOOT (instructed by Treasury Solicitors) for the Respondent.

Hearing date: 6th February 2012
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Judgment
Lord Justice Hooper: 
1.	On 3 October 2008 the appellant, a citizen of the People’s Republic of China (“PRC”), was sentenced to 18 months’ imprisonment for producing cannabis, following a plea of guilty. The experienced sentencing judge told the appellant that he had entered the country illegally, spoke no English, and had been the subject of exploitation at a serious level. He was not a member of the gang cultivating the cannabis for profit and his role was to tend the plants.  Having served 9 months of that 18 months, he was detained pending deportation and has been in detention ever since.  
2.	Following his conviction, the Appellant became subject to the automatic deportation procedures and, having been invited by the Secretary of State to provide any reasons as to why he should not be deported, he claimed that he should not be returned to China on asylum and human rights grounds.  These representations were refused by the Secretary of State and the deportation order was made on 9 June 2009.  It is against this decision that the Appellant appealed. 
3.	In August 2009 his appeal against that decision was dismissed. Reconsideration was ordered in November 2009. Senior Immigration Judge Perkins found that the panel which had dismissed the appeal had erred in law “by not having sufficient regard to the evidence before it that pointed to a contrary result” namely the appellant being at risk of ill-treatment by reason of his involvement in drug offences in the United Kingdom. SIJ Perkins noted that the question raised before him was whether and/or to what extent the guidance given in JC (double jeopardy: Art 10 CL) China CG [2008] UKAIT 00036 identified particular risks for those involved in drugs offences.
4.	On 11 December 2009 the appellant was interviewed by the Chinese Embassy at the request of UKBA. 
5.	On 21 January 2011 the Upper Tribunal, SIJs Storey and Roberts, dismissed the appeal. 
6.	Permission to appeal was granted by Sir Richard Buxton.
7.	There is no dispute that the government of the PRC has been informed by the Prison Service of the conviction and that, if returned to China, the immigration authorities are likely to identify from their records that the appellant was convicted of a drugs offence together with the basis particulars of the charge and sentence. It is accepted that the immigration authorities will pass the appellant to the local police.
8.	It is not in dispute that the criminal law of the PRC allows for the extra-territorial application of the criminal law. Chinese courts have the jurisdiction to punish Chinese citizens who have committed crimes overseas upon their return. Even if a Chinese citizen has already been tried and punished in a foreign country, the Chinese government can re-prosecute the relevant citizen upon his return.
9.	The Upper Tribunal in its decision the subject-matter of this appeal reached the following conclusion about risk on return:
92. However, once in the hands of the local police, we do not consider that anything more is likely to happen than that the appellant will be asked questions to establish where he is living and who are his family. There is no evidence to suggest he has any record in China as a criminal or administrative/disciplinary procedure offender. We consider that records kept by the authorities (and available to the local police) will show what his overseas offence was and what the punishment was (and, we will assume) the period of time he actually served in prison. We are entirely satisfied that nothing in the appellant’s  details will cause the Chinese authorities, at a local, provincial or  centralised level, to  consider reprosecuting the appellant. We accept as Mr Selway has pointed out, that cultivation is included as one of the methods of drug-offending that can attract the most serious penalties. We also accept that the appellant was seemingly involved in a cannabis factory, not simply in a domestic setting. However, even though the Chinese authorities  do not adopt the same formal differentiation  used in the UK and many other countries (in different ways) between “hard” and “soft” drugs, there is nothing to indicate that they would see relatively small-scale industrial cultivation of cannabis as near the serious end of the drug-offending spectrum, or as, in consequence, unusually serious. Not being unusually serious, the appellant’s offences would not attract criminal re-prosecution or double punishment. ... 
93. We accept that the appellant is likely to be asked whether he has any Chinese criminal record, but on the facts of this case that is not the case. We are prepared to accept that once they learn of his overseas offence they may require him to report to them for a period of time so to keep a check on his movements. But we do not consider that the evidence establishes that the local police would go further than routine questioning and monitoring of this kind. We do not think that these requirements could be described as serious harm or persecution, since he would be allowed to continue of his way and remain at liberty subject only to light monitoring requirements to report or the like. 
94. The appellant would not be at risk on return.
10.	Permission was given because of concerns, not clearly articulated in the grounds, about the risk of the appellant being executed on his return. Although the Upper Tribunal referred to the incidence of capital punishment in the PRC for those involved in drugs, the Tribunal did not specifically consider the risk in the appellant’s case because of the conclusion reached that the appellant’s offences would not attract criminal re-prosecution or double punishment.
11.	Both Ms Brakaj and Ms Broadfoot agree that the issue on the appeal is whether the Tribunal made an error of law in concluding that there was no real risk that the appellant would face re-prosecution.
12.	Ms Broadfoot submits in her skeleton argument that, if we were to allow the appeal, the matter should be sent back for reconsideration in the light of the relevant legislative provisions in the PRC relating to punishment for cultivation. She submits that they show that the offence of which the appellant was convicted here is not a capital offence in the PRC.
13.	The Upper Tribunal examined at length the decision in JC and heard oral evidence from Dr Dillon who had given evidence in JC.  At the outset of the determination, the Upper Tribunal summarised in a headnote its conclusion:
1. The guidance given by the Tribunal in JC (double jeopardy: Art 10 CL) China CG [2008] UKAIT 00036 is confirmed save for the addition of the words underlined immediately below: 
 “The risk of prosecution or re-prosecution will be a question of fact in individual cases but is more likely where (a) there has been a substantial amount of adverse publicity within China about a case; (b) the proposed defendant has significantly embarrassed the Chinese authorities by their actions overseas; (c) the offence is unusually serious.  Generally, snakehead cases do not have the significance they have in the West and are regarded as ordinary (but serious) crimes requiring no special treatment; (d) political factors (which may include the importance attached by the Chinese authorities to cracking down on drugs offenders) may increase the likelihood of prosecution or re-prosecution; and (e) the Chinese Government is also particularly concerned about corruption of Chinese officialdom.” 
 2. Re-prosecution/double punishment of a returnee through the administrative disciplinary procedure system is extremely unlikely, since for a person to be considered under this system by virtue of an overseas offence the Chinese authorities must have decided his case was not serious enough to justify reprosecuting him through the criminal law system.
14.	In JC the Tribunal summarised its conclusion in a headnote which reads:
1. There is a risk of prosecution or re-prosecution under Articles 7 and 10 of the Chinese Criminal Law for overseas offenders returned to China.  However, the use of those provisions is discretionary and extremely rare.  Absent particular aggravating factors, the risk falls well below the level required to engage international protection under the Refugee Convention, the ECHR, or humanitarian protection.  The risk of prosecution or re-prosecution will be a question of fact in individual cases but is more likely where (a) there has been a substantial amount of adverse publicity within China about a case; (b) the proposed defendant has significantly embarrassed the Chinese authorities by their actions overseas; (c) the offence is unusually serious.  Generally, snakehead cases do not have the significance they have in the West and are regarded as ordinary (but serious) crimes requiring no special treatment; (d) political factors may increase the likelihood of prosecution or re-prosecution; and (e) the Chinese Government is also particularly concerned about corruption of Chinese officialdom. (Emphasis added)
15.	Ms Brakaj is particularly critical of the conclusion by the Upper Tribunal in the instant appeal declining to accept the evidence of Dr Dillon that it can be inferred from the lack of any official monitoring by the UK and seemingly other countries of what happens to returned Chinese offenders that re-prosecution could be visited upon returned nationals without international observers knowing about it. The Tribunal wrote:
62. ... In our judgement it is extremely unlikely that offenders forcibly returned to China would not be in a position to alert international observers, via their friends or family, in the event that they found themselves facing further legal punishment for the same offence(s) from the Chinese authorities on return. It is common sense that when they knew when they were to be flown back they would notify a friend or family or a legal representative in the UK beforehand and arrange to contact them after return. In most cases it is also likely they will be able to inform family or friends back in China when they are due to return and to where. This is the age of the mobile phone and the internet and the Chinese people have these technologies in large number. Even though there is evidence that the Chinese authorities seek from time to time to control such forms of communication Dr Dillon agreed that normally mobile phone communication to and from China was straightforward. The notion therefore that there are likely to be a significant number of returning offenders who are then secretly removed from circulation and subjected to serious punishment is in our view not tenable. We consider there would be reports finding their way to organisations such as AIJ noting that such and such a returned offender failed to notify his contact as arranged or that friends/family awaiting their return after airport processing were unable to trace them.
16.	This was a conclusion which, in my view, the Tribunal was entitled to reach.
17.	Ms Brakaj is also critical of the conclusion that there was no real risk of re-prosecution given the evidence that those who commit drugs offences are treated harshly in the PRC and that the harsh treatment includes execution for many involved in drugs offences. She submits that the conclusion that the appellant would be interviewed and released is perverse in the light of the attitude towards drugs offences taken by the PRC.  
18.	On the facts of this case as outlined by the sentencing judge, the Tribunal was entitled, in my view, to reach the conclusion that this appellant would not be reprosecuted whilst accepting that the PRC views drug offences very seriously.  
19.	Ms Brakaj submitted that the Tribunal’s approach to the burden of proof was wrong in law. She submits that the Tribunal should have found that the respondent had failed to discharge the burden of proof in the light of the evidence pointing, so it is submitted, to a real risk of re-prosecution and the lack of evidence pointing to the opposite effect. 
20.	For this seemingly startling proposition Ms Brakaj relies on a passage in Adam v SSHD [2003] EWCA Civ 265. In that case the appellant, Adam, relied largely on a Country Assessment and Home Office evidence to show a real risk on return, evidence which the respondent at the hearing and apparently with little or no warning and without producing any rebuttal evidence, decided to contest. It is understandable why Schiemann LJ said, in paragraph 14, that the evidential burden passed to the respondent in the sense that, if the Home Office wished to contradict the natural inference from the Country Assessment, they should have produced the relevant evidence in advance so that the appellant knew the case he had to meet.
21.	In JC the Tribunal concluded that:
3. The burden of proof does not shift to the Secretary of State in double jeopardy cases. The Court of Appeal decision in Adam v Secretary of State for the Home Department [2003] EWCA Civ 265 is not authority for such a proposition, particularly where the decision to re-prosecute is discretionary. 
22.	In the determination in JC the Tribunal said:
269. ... In the Adam decision, the Home Office evidence was in the appellant's favour and Schiemann LJ observed that where the appellant had made his case based on evidence prepared by the Home Office, if the Secretary of State wished to assert the contrary position, he should have given proper notice of her intention to do so. That is a perfectly reasonable position but it does not amount to authority that the burden always shifts in favour of the Secretary of State in double jeopardy cases ... .
23.	I would go further and say that the Tribunal’s task is to examine all the evidence (much of which will often be background material prepared by organisations independent of the parties) and ask whether the appellant has shown that there is a real risk on return.  To talk about shifting burdens of proof is confusing and unhelpful. 
24.	Ms Brakaj also took us to paragraph 129 of AS (Libya) v SSHD [2008] EWCA Civ 289; [2008] HRLR 28 which reads:
It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it. (Emphasis added)
25.	Although the Court of Appeal quoted Finland, the approach taken by the Court of Appeal does not suggest that the burden of proof changes – indeed the opposite. 
26.	For these reasons I would dismiss the appeal.
LORD JUSTICE TOULSON
I agree.
THE MASTER OF THE ROLLS
I also agree.