SCTSPRINT3

APPEAL UNDER SECTION 13 OF THE TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007 BY MS YAN ZHENG AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT


Submitted: 30 June 2017

Web Blue CoS

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 41

P833/11

 

Lord Menzies

Lady Clark of Calton

Lord Glennie

OPINION OF THE COURT

delivered by LORD GLENNIE

in the appeal under section 13 of the Tribunals, Courts and Enforcement Act 2007

by

MS YAN ZHENG

Appellant

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Appellant:  Caskie;  Drummond Miller LLP

Respondent:  Webster;  Office of the Advocate General

30 June 2017

Introduction

[1]        This appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) dated 31 March 2016 raises the question of whether, in the particular circumstances of this case, the Upper Tribunal was entitled to interfere with primary findings of fact made by the First-tier Tribunal (“FTT”).  Although the point is of some general interest, in the event there was little difference between the parties as to the principles to be applied and the outcome of this appeal turns largely on the application of those principles to the particular case.

 

Background Facts

[2]        The appellant is a citizen of China.  She was born in October 1988.  She entered the United Kingdom on a valid student visa and passport in August 2007 and was granted further leave as a student to remain until 30 June 2009.  On 29 April 2014 she claimed asylum based on her fear of persecution, were she to be returned to China, on account of (a) her membership of the China New Democratic Party and (b) her breach of China’s family planning policies, having had two children born out of wedlock.

[3]        By letter dated 9 April 2015 the Secretary of State refused her asylum claim.  She appealed to the FTT.  Her appeal was dismissed on 20 November 2015.  She appealed to the UT by permission of the FTT.  The UT refused her appeal on 31 March 2016, though on different grounds – it set aside the decision of the FTT and substituted therefor a decision that the appellant’s appeal to the FTT against the decision of the Secretary of State was dismissed “on all available grounds”.  The appellant now appeals to the Court of Session, leave to appeal having been granted by this court.

[4]        After her unsuccessful appeal to the FTT, the appellant abandoned any reliance on her membership of the China New Democratic Party.  Accordingly, the only issue before the UT related to the risk to the appellant of being persecuted on account of her breach of China’s family planning policies. 

[5]        The focus of the appeal to this court is on whether the UT was entitled to open up and overturn the finding in fact made by the FTT, in paragraph 35 of its decision, that if she were returned to China the appellant would be required to undergo sterilisation before she could register her children for a “hukou”.  That in turn involves a consideration of the country guidance relevant to this question and the competing expert evidence adduced by the appellant; whether the FTT was entitled in this particular case not to follow the country guidance; whether the FTT gave adequate reasons for not following the country guidance; and, in light of all these matters, whether the UT was entitled to go behind the FTT’s fact-findings in this regard.  We should, however, emphasise one important point.  It is for the relevant tribunal – in the first instance the FTT and, on appeal, in certain circumstances, the UT – to determine the facts relevant to the resolution of the case before it.  This court sits in an appellate capacity.  It is concerned with the question whether either tribunal erred in law in reaching its decision.  To answer that question in the present case, it is clearly necessary for this court to identify the evidence which was before the tribunals and to evaluate their treatment of it; however we do so not in order to enable us to form our own view of the facts but only for the purpose of considering whether either tribunal committed a legal error sufficient to require this court to intervene.

[6]        Before turning to consider the decisions by the FTT and the UT it is convenient to say something about the system of country guidance decisions, the relevant country guidance case of AX (family planning scheme) China CG [2012] UKUT 00097, and the expert evidence adduced by the appellant in the form of an opinion by Ms Stephanie Gordon MA.

 

Country Guidance – Generally

[7]        The effect of “country guidance” decisions is set out in Rule 12 of the Practice Directions issued by the Immigration and Asylum Chambers of the FTT and the UT in November 2014 (“the Practice Directions”), which provides, so far as material, as follows:


“…

 

12.2      A reported determination of the Tribunal, the AIT or the IAT bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal.  As a result, unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:

(a)        relates to the country guidance issue in question; and

(b)        depends upon the same or similar evidence.

 

 

12.4      Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.”

 

[8]        The effect of CG decisions was discussed, under reference to an earlier version of the Practice Direction, by the Court of Appeal in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, [2005] Imm AR 535 at paragraphs 21-27.  Quoting extensively from the determination delivered by Ouseley J, sitting as President of the IAT, in NM and Others (Lone women – Ashraf) Somalia CG [2005] UK IAT 00076, the court explained that CG decisions were to be applied by tribunals unless there was good reason, explicitly stated by the tribunal, for not doing so.  Failure to adopt that approach would be an error of law in that a material consideration would have been ignored or legally adequate reasons for the decision would not have been given.  But, unlike starred cases, CG cases were not binding.  If there was evidence that circumstances had changed in a material way, or there was new evidence which required the views expressed in the CG case to be revised or refined or tailored to the particular circumstances under consideration, then it was open to a tribunal to proceed on the basis of that evidence, provided that it gave reasons for not following the CG decision.  Failure without good reason to follow country guidance would be an error of law.

 

Relevant Country Guidance in this Case – AX (Family Planning Scheme) China CG

[9]        The decision in AX (family planning scheme) China CG was issued in April 2012, the hearings having taken place over a period of two years between December 2009 and December 2011.  It was accepted before us that AX was the most up-to-date country guidance case on the question of how the Chinese family planning scheme impacted upon issues under the Refugee Convention and the European Convention on Human Rights and Fundamental Freedoms (“ECHR”).  The essentials of the decision in AX can be taken from the headnote, which replicates the Tribunal’s summary of its findings set out in paragraph 191 of its decision.  The following paragraphs are relevant here either as background or as directly pertaining to the issue of forced sterilisation:

Chinese family planning scheme

 

(1)        In China, all state obligations and benefits depend on the area where a person holds their ‘hukou’, the name given to the Chinese household registration system.  There are different provisions for those holding an ‘urban hukou’ or a ‘rural hukou’: in particular … the family planning scheme is more relaxed for those with a ‘rural hukou’.

 

[We should add, by way of explanation, that “hukou” is defined in the decision itself in the following way (paragraph 16(g)):  “a system of family registration, used to control internal migration in China between urban and rural areas.  In 1958, the Communist government allocated ‘rural’ or ‘urban’ hukous to individuals.  Today, the ‘urban hukou’ or ‘rural hukou’ is inherited and passed from parent to child.  All social benefits and obligations derive from hukou, including entitlement to a birth permit, social security, contraception and medical care, education, housing, land and pension provision.  Although it remains difficult to change hukou, the system has failed to prevent mass internal migration to the large cities in modern times, with hundreds of thousands of people living away from their hukou.  Nevertheless, women of fertile age are obliged to send back regular pregnancy tests to their hukou area, seek birth permits there, and comply with local family planning regulation.]

 

(2)        It is unhelpful (and a mistranslation of the Chinese term) to describe the Chinese family planning scheme as a 'one-child policy', given the current vast range of exceptions to the ‘one couple, one child’ principle.  …  The number of children authorised for a married couple, ('authorised children') depends on the provincial regulations and the individual circumstances of the couple.  Additional children are referred as 'unauthorised children'.

 

[We should note here that there has recently been a change to a two child policy, but nothing turns on that for present purposes.]

 

(3)        The Chinese family planning scheme expects childbirth to occur within marriage.  …

 

(4)  Breach of the Chinese family planning scheme is a civil matter, not a criminal matter.

 

Single-child families

 

(5)        Parents who restrict themselves to one child qualify for a “Certificate of Honour for Single-Child Parents” (SCP certificate), which entitles them to a range of enhanced benefits throughout their lives, from priority schooling, free medical treatment, longer maternity, paternity and honeymoon leave, priority access to housing and to retirement homes, and enhanced pension provision.

 

Multiple-child families

 

(6)        Any second child, even if authorised, entails the loss of the family's SCP certificate. Loss of a family’s SCP results in loss of privileged access to schools, housing, pensions and free medical and contraceptive treatment.  Education and medical treatment remain available but are no longer free.

 

(7)        Where an unauthorised child is born, the family will encounter additional penalties.  Workplace discipline for parents in employment is likely to include demotion or even loss of employment.  In addition, a ‘social upbringing charge’ is payable (SUC), which is based on income, with a down payment of 50% and three years to pay the balance.

 

(8)        There are hundreds of thousands of unauthorised children born every year.   Family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child.  Payment for birth permits, for the registration of children, and the imposition of SUC charges for unauthorised births are a significant source of revenue for local family planning authorities.  There is a tension between that profitability, and enforcement of the nationally imposed quota of births for the town, county and province, exceeding which can harm officials’ careers.

 

(9)        The financial consequences for a family of losing its SCP (for having more than one child) and/or of having SUC imposed (for having unauthorised children) and/or suffering disadvantages in terms of access to education, medical treatment, loss of employment, detriment to future employment etc will not, in general, reach the severity threshold to amount to persecution or serious harm or treatment in breach of Article 3.

 

(10)      There are regular national campaigns to bring down the birth rates in provinces and local areas which have exceeded the permitted quota.   Over-quota birth rates … can result in large scale unlawful crackdowns by local officials in a small number of provinces and areas.  In such areas, during such large scale crackdowns, human rights abuses can and do occur, resulting in women, and sometimes men, being forcibly sterilised and pregnant women having their pregnancies forcibly terminated.  The last such crackdown took place in spring 2010.

 

Risk factors

 

(11)      In general, for female returnees, there is no real risk of forcible sterilisation or forcible termination in China.  However, if a female returnee who has already had her permitted quota of children is being returned at a time when there is a crackdown in her ‘hukou’ area, accompanied by unlawful practices such as forced abortion or sterilisation, such a returnee would be at real risk of forcible sterilisation or, if she is pregnant at the time, of forcible termination of an unauthorised pregnancy.  Outside of these times, such a female returnee may also be able to show an individual risk, notwithstanding the absence of a general risk, where there is credible evidence that she, or members of her family remaining in China, have been threatened with, or have suffered, serious adverse ill-treatment by reason of her breach of the family planning scheme.

 

(12)      Where a female returnee is at real risk of forcible sterilisation or termination of pregnancy in her ‘hukou’ area, such risk is of persecution, serious harm and Article 3 ill-treatment.  …”

 

The headnote goes on to deal with the possibility of avoiding persecution by internal relocation, but no question of that arises in this case.

[10]      Amongst the oral evidence and other materials considered by the UT in AX was expert evidence from three “country experts”, namely Professor Fu, Dr Sheehan and Professor Aguilar.  The UT placed “only limited weight” on the evidence of Professor Aguilar.  It placed greater weight on the evidence of Professor Fu and Dr Sheehan.  Dr Sheehan’s evidence was summarised at paragraphs 74-99 of the decision, while that of Professor Fu was summarised at paragraphs 100-111. 

[11]      Dr Sheehan is not a lawyer, but could speak to human rights issues in China based on her studies and regular visits there.  In her evidence to the Tribunal she said that the authorities no longer refused to register unauthorised children (paragraph 79), though this passage was silent about the existence or otherwise of any requirement for the mother to be sterilised.  Her first report was criticised (at paragraph 77) for being directed at the position of a lone woman, a single parent, which was not the case with the appellant in that case.  But in a second report directed towards the appellant in that case, who was married with four children, she considered it “overwhelmingly likely” that she would be forced to undergo sterilisation if returned to China “either by social and personal pressure, or if there were a sterilisation campaign in her area, by force (see paragraph 92).  If she were permitted to have an IUD inserted instead of undergoing sterilisation, there was a high failure rate (10% in the first year and 20% in the second), which might result in a further pregnancy which the appellant would “certainly” be required or compelled to abort.

[12]      The relevant part of Professor Fu’s evidence is summarised at paragraphs 102-105 of the decision.  He is a lawyer and his evidence focused on Chinese law materials.  He said that local authorities made a great deal of money from SUC payments (and that they would be reluctant to lose such payments by insisting on sterilisation before registration of the children).  Forced abortions were not lawful in China, though it was lawful to use persuasion and financial measures to encourage abortion in the case of pregnancy contravening the one child policy.  Forced sterilisation was not lawful either.  Incidents of forced sterilisation or termination were now rare, though they had been common earlier.  Foreign born children would be registered, whether or not they were regarded as unauthorised (paragraph 109).

[13]      It is clear from its discussion of the expert evidence (at paragraphs 160-166) that the tribunal was more inclined to accept the evidence of Professor Fu.  It found (paragraph 167) that, while there had been appalling abuses during a period when a “punishment approach” was being applied, the Chinese authorities had largely moved away from the excesses of the unregulated family planning policy which existed before the statutory scheme came into force in 2005.  Officials were required to register unauthorised children once the SUC had been paid (paragraph 173).  Forcible sterilisation was unlawful (paragraph 183).  However, voluntary sterilisation of one spouse after the second birth was the norm and was, in general, socially accepted (paragraph 184).  A couple opting for voluntary sterilisation would not require international protection (ibid).  Nor was “voluntary sterilisation in pursuance of a law of general application … inherently persecutory” (ibid).  The tribunal concluded (paragraph 185) that where there existed “a real risk of forcible sterilisation … that would be persecutory and international protection would be engaged”.  But on the extensive evidence before them, they were not satisfied that in general there was a real risk of forcible sterilisation of either partner, except in the rare event of birth regulation crackdowns where such sterilisations did occur in large numbers (ibid).

[14]      It may be appropriate at this point to observe that, in the course of reciting the submissions made on behalf of each party, the tribunal noted (at paragraph 139) the submission made on behalf of the appellant that the meaning of “forced sterilisation” in Chinese terms was narrow: “only being strapped down and operated on against your will counted as ‘forced sterilisation’”.  This submission was not explicitly dealt with in the UT’s decision.  But on a careful reading of AX it seems clear to us that in its own use of the epithet “forced” or “forcible” in connection with sterilisation the UT is referring to sterilisation being carried out against the will of the female concerned by means of physical compulsion.  Its decision as summarised in paragraph (11) of the headnote that, rare local crackdowns apart, there is in general for female returnees “no real risk of forcible sterilisation” in China is therefore properly to be understood as referring to sterilisation carried out by the use of physical force.  The decision in AX does not in terms address the position of a female who is not subjected to physical force and does not willingly opt for voluntary sterilisation (that being the “norm” and “generally socially accepted”) but rather feels compelled to submit to sterilisation against her will as a result of social, legal, financial, administrative or bureaucratic pressures, including harassment and threats either to her or to her children, for example by hukou denial (refusal of registration) and the serious disadvantages which that brings.  That is not surprising in light of the finding in paragraph 191(8) (and paragraph (8) of the headnote) that there was no real risk of a refusal to register a child.

 

Evidence of Ms Gordon

[15]      It was not in dispute that Ms Gordon was qualified to give expert evidence about the Chinese family planning policy and its likely impact on someone in the position of the appellant were she to be returned to China.  But we should, nonetheless, identify the main strands of her expertise.  Her academic qualifications include a BA (from Nottingham University) in Management and Chinese Studies, two years of which was spent in China, and an MA (from SOAS) in Chinese Studies.  At the time of giving evidence (2015) she was completing a PhD thesis (at Leicester University) on statelessness in China (resulting from denial of birth registration).  Among her academic contributions, she has refereed a web-based publication on statelessness in China, contributed to an NGO report on the same topic, produced a number of written and media publications (including one on “China’s Hidden Children”), presented papers and given talks to respected academic bodies in the UK and elsewhere (including papers and talks on the subject of social control through exclusion and hukou denial in China); and has been involved in teaching at Leicester University.  She has spent some time studying in China, learning Chinese and teaching both business and “street” English.  In 2014 she undertook a six-month project in China, carrying out fieldwork surrounding the issue of unregistered children and birth registration, conducting interviews and compiling evidence from chat rooms, mostly on the subject of family planning issues concerning Chinese people.  As she said in her report (at paragraph 4), during that time and since then she has collected from parents within China evidence about the birthing policy and denial of the hukou, which evidence was based on data collected before, during and after the AX case but not included within the evidence considered there.  She has written over 50 in-depth country expert reports, including reports on birthing policies, for courts and agencies in the UK and elsewhere in connection with claims for asylum in relation to China.

[16]      It is relevant to identify some aspects of her report so as to show the nature of the evidence which the FTT (and subsequently the UT) had before it.  Her view (expressed in paragraph 19) was that, if returned to China, the appellant would be punished for having her children out of wedlock, particularly since she would return still unmarried and without the father of the children.  In paragraphs 31-42 she considered the likelihood of forced sterilisation or IUD insertion, noting (in paragraph 31) her understanding of what “forced” sterilisation meant:

“My understanding is that ‘forced’ does not only refer to the women caught by authorities and physically submitted to undergo sterilisation – as was, not so long ago.  It can also mean putting women and families in a situation where women must choose between submitting to sterilisation, and the legal identity of their child, or their entire family savings.  These ‘choices’ should not be mistaken for free consent.”

 

Women who refused to submit to sterilisation faced on-going problems across China (paragraph 32).  As to the suggestion that forced sterilisation occurred only during “local crackdowns”, she said this (in paragraph 33):

“… there is a preoccupation both from the Home Office and legal representation about ‘local crackdowns’ to sterilise women.  This is irrelevant in China – regardless of crackdown China has built a bureaucratic system to ensure certain documents are connected to birth registration (and thus hukou) of a child.  A woman must have either an IUD or being sterilised and the document to prove this took place.  Only with this document can a mother register her child’s birth, and give her child legal documentation (the hukou) – necessary to access education.  So the key point here is all year, every year, in all provinces, mothers require a certificate to register their child with the hukou.  So regardless of a ‘crackdown’ the system ensures compliance through a functioning bureaucracy.  This point became clear to me during my interviews – and through on going contact online with people over the last year, and is still a reality today.”

 

She then gave some examples (or anecdotes) to illustrate the problem which, she said (paragraph 37), “encapsulate the situation faced by women, they feel helpless to refuse sterilisation because they know without doing so their child is denied a hukou – and thus denied education.”

[17]      In paragraph 38 Ms Gordon said that she had never heard of a woman refusing to accept an IUD in China – it is the normal expectation and is required after a woman’s first child is born. 

“A woman is usually expected to be sterilised after the birth of a second child, and [the appellant] would almost certainly be required to undergo sterilisation.  I do not know of any example of a woman with two children in China who is not required, by local regulations, to accept either an IUD insertion or sterilisation.  As the certificate of IUD insertion or sterilisation is usually necessary to register a child’s birth, the state can effectively monitor and enforce this policy.  As the mother can only register their child in their location of hukou registration they cannot go to another place to register their child.  In my opinion, based on my broad first-hand research, it is highly likely that [the appellant] will need to be sterilised in order [to] be issued with a document necessary to obtain a hukou for her child.  Again, the above assertions are based on my ongoing interviews with Chinese people.”

 

She then referred to the possibility of women bribing their way out of being sterilised, but we need say no more about this since it is not suggested on behalf of the Secretary of State that this would be an acceptable solution if the problem was as Ms Gordon asserted it to be.

[18]      Finally, on this point, at paragraphs 53-54 Ms Gordon reiterated that hukou denial (refusal of registration), both for not paying the social compensation fee and for refusing to be sterilised, was still an insurmountable barrier for some parents across China.  It was a systemic problem.  The implications for families could be devastating.  They faced financial burdens by way of very heavy fines (she gave an illustration of the level of the fine as a multiple of annual income), might lose their jobs and might find themselves repeatedly detained and taken to court.  Parents unable to pay a social compensation fee, and unwilling to accept an IUD or undergo sterilisation, all faced these problems.

 

The Decision of the FTT

[19]      At the hearing before the FTT, in addition to relying upon her screening interview and her written statement, the petitioner gave oral evidence of her fear that she would be subjected to forced sterilisation on her return to China in view of the fact that she had two children born in the United Kingdom while unmarried.  She was the oldest of three siblings and had lived in China for nearly 19 years before coming to the United Kingdom to study in August 2007.  Her evidence of her concerns if returned to China must have been based, at least in part, upon her own knowledge of the country acquired from having lived there for the first 19 years of her life.

[20]      In summarising the case advanced on behalf of the Secretary of State in relation to the forced sterilisation issue (under the heading “The Respondent’s issues”) the judge referred to AX (family planning scheme) China CG and (at paragraph 19) recorded a submission on behalf of the Secretary of State that there was no evidence from the petitioner’s home area in Fujian Province to demonstrate that she would be at risk of physical coercion to meet family planning targets or forced sterilisation.  In a section of her decision headed “Credibility findings and reasons” the FTT judge recited some of the evidence and submissions made on behalf of both parties.  So far as concerned the forced sterilisation point, she referred to submissions made on behalf of the Secretary of State by Miss MacDonald.  It was submitted that Ms Gordon’s report appeared to have taken into account the decision in AX but had not considered earlier decisions about trafficked women.  There were no previous decisions where a report by Ms Gordon had been cited by a tribunal.  On the other hand, the decision in AX had been based upon a large amount of evidence produced to the tribunal.  Three experts had given evidence in AX.  The petitioner did not face a real risk of sterilisation.  As appeared from paragraphs 7-8 of the headnote in AX, there was no risk that the Chinese authorities would refuse to register her children.

[21]      The FTT judge then summarised the submissions made on behalf of the petitioner by Mr Latta.  The petitioner was a single parent with two children.  It was clear that she could not hide her family on her return to China.  Nor could she be expected to live in hiding even if she could.  There was a risk of sterilisation on her return.  She would have to go through this in order to register her children for a hukou.  Forced sterilisation engaged the Refugee Convention.  The case of AX was decided on evidence going back to 2010/2012.  Ms Gordon, on the other hand, had considerable recent experience of China.  She had been in China for six months in the past year.  She had interviewed academics, NGOs and mothers denied a hukou.  If a child was denied registration, he would be denied education.  There was a high risk of the appellant having to undergo sterilisation.  She could not avoid paying the social compensation fee.  She would have to be sterilised before she could be issued with a permit.  The children obviously had to stay with their mother; and it would not be in the best interests of the children for them to have to return to China.

[22]      From paragraph 31 onwards, the FTT judge gave her decision on the various points argued before her.  She identified the issue as being that of the appellant having to return to China as a single parent with two young children (paragraph 34).  It was in the best interests of the children to remain with their parent.  They were very young and had not formed independent lives outwith the family unit.  They were wholly dependent upon their mother for their support (paragraph 34).  None of that is in dispute.  The judge then made these findings in paragraph 35, which we set out in full:

“35.      This is the issue, in that the appellant does not want to return to China, as she is unmarried and will in addition have to pay a social compensation fee for two children.  She is in breach of the one child policy in existence at the time of her appeal hearing, although that has since changed to a two-child policy.  However, in effect that will not make any difference to the appellant’s claim, as she has two children being the new limit.  I would expect that the circumstances will be the same for her on return, namely that she will have to undergo sterilisation before she can register the children.  There is mention of having an IUD device inserted in place of sterilisation.  However, the situation seems to be that having had two children, a woman will be expected to undergo sterilisation.  Only then can she register the children by paying the fee.  However, she can pay half the fee and then the balance can be paid over three years.” (emphasis added)

 

Having found that, having had two children, the appellant would if returned to China have to undergo sterilisation before she could register her children, the judge concluded that, nonetheless, the appellant’s situation did not engage either the Refugee Convention or ECHR for a number of reasons which can be summarised in this way: the appellant was born and brought up in China; she must have been well aware of the Chinese system of controlled childbirth; she might not like or agree with the one child policy in China, but it was the law of her country of nationality; she came from a well-off family and could afford to pay a fine if necessary; and, if returned to China, she could simply agree to being sterilised rather than have it forced upon her.  In short, having been brought up in China, the appellant ought to abide by Chinese law; and, in any event, she “need not have to submit to forced sterilisation and can agree to it instead.”

[23]      It was not in dispute either before the UT or before this court that the reasons given by the FTT judge for refusing the appeal – not her findings in fact, but her reasoning from those findings – could not be sustained.  However, we should note two matters of importance.  The first is that, in describing the choice faced by the appellant – to agree to sterilisation instead of it being forced on her – the FTT judge proceeds upon and therefore confirms her finding in paragraph 35 that, if she were to be returned to China, the appellant would have to undergo sterilisation before she could register her children.  The second is that, in saying that the appellant “will have to undergo sterilisation” and “will be expected to undergo sterilisation” before being able to register her children, the FTT judge is clearly stating that she will be forced to undergo sterilisation against her will not because of any overbearing physical force or constraint but because that is the system with which she will have no real alternative but to comply.  The judge clearly accepted Ms Gordon’s evidence as to the likelihood of registration of her children being denied unless the appellant could show that she had been sterilised.  

 

The Appeal and Respondent’s Rule 24 Notice

[24]      The appellant appealed to the UT, with the leave of a (different) judge of the FTT.  Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 as in force at the relevant time provides that the respondent may provide a response to a notice of appeal.  That response must state whether the respondent opposes the appeal and

“Rule 24

(3)(f)    the grounds on which the respondent relies, including (in the case of an appeal against the decision of another tribunal) any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal, but intends to rely in the appeal …”

 

Pursuant to that provision, the Secretary of State lodged a Rule 24 notice stating that she opposed the appellant’s appeal.  The notice went on in the following terms:

“2.    …  It is observed that AX (family planning scheme) China CG [2012] UKUT 00097 does indicate that where there is a real risk of sterilisation it does amount to persecution (headnote (12)).  If an appellant was forced to undergo sterilisation against her will then this would amount to persecution and the judge should have addressed whether or not the appellant would have been forced to do so.  As such there is an error in the determination.

 

3.      However, it is submitted that on the face of the determination the appellant has not provided evidence that there is a ‘crackdown in her ‘hukou’ area accompanied by unlawful practices such as forced abortion or sterilisation’ - as stated by headnote (11) of AX [2012].  Nor had the appellant shown that she was pregnant at the time of the hearing and/or that her family have been threatened with, or have suffered, serious adverse ill-treatment by reason of her breach of the family planning scheme, as further stated at headnote (11) of the above case.  As such it is submitted that whilst there is an error in the Judge’s approach to the issue of sterilisation in terms of headnote (12) of AX [2012], it is not material for the above reasons.”

 

The notice concluded by requesting an oral hearing. 

[25]      The Secretary of State therefore accepted that if the appellant would be forced to undergo sterilisation against her will, then this would amount to persecution.  But her submission was that the FTT judge had (wrongly) failed to address the question of whether or not the appellant would be forced to undergo sterilisation against her will.  That submission was wrong as a matter of fact since the FTT judge clearly did address this point and found (to repeat the quotation from paragraph 35) that “she will have to undergo sterilisation before she can register the children” and that “… having had two children, a woman will be expected to undergo sterilisation.”  There is no recognition in the Rule 24 notice that the FTT had made such a finding and no attempt in the notice to suggest that in reaching such a finding the FTT had made a finding which she could not properly have made or otherwise erred in law.

[26]      In addition, however, we should note that the Secretary of State’s Rule 24 notice appears to have missed the point.  By focusing on the absence of evidence about a “crackdown” in the appellant’s hukou area, the Secretary of State was clearly directing her attention to the issue of whether there was evidence that the appellant would be liable to forcible sterilisation (ie by the use of force).  This was not the appellant’s case and, as noted above, was not the basis on which the FTT judge made her findings (in paragraph 35) that the appellant would have to undergo sterilisation.

 

The Decision of the UT

[27]      The hearing before the UT commenced on 1 February 2016.  It was common ground that the determination of the FTT must be set aside.  It was accepted on behalf of the appellant that if the decision fell to be re-made simply by applying the country guidance in AX then the appeal would again be dismissed.  However, the Secretary of State’s Rule 24 notice did not seek to revisit the factual findings made by the FTT judge.  Those findings should be regarded as “untouchable”.  On that basis, the appeal should be allowed.  On behalf of the Secretary of State it was accepted that the Rule 24 notice (in which it was submitted that the FTT’s error made no material difference to the result) oversimplified the consequences of the error in the FTT’s determination; there required to be a full and proper analysis of the relevant evidence to discover whether it did or did not justify departure from AX

[28]      Having accepted that the determination of the FTT must be set aside, the UT judge decided that further submissions were required as to what conclusions should be drawn from the evidence presented before the FTT, including the country guidance, further background evidence and the appellant’s expert report.  His reasons for coming to this decision appear from paragraphs 15 and 16 of the UT‘s decision:

“15.      …  [The FTT judge] failed (a) to consider the respondent’s quite extensive reasoning, based both on background evidence and on AX and (b) to consider and resolve these submissions which she recorded from both sides on the weight to be given to the expert report, and on the extent to which AX might no longer hold good.

 

16.       It is good general doctrine that findings of fact should not too readily be revisited.  However, all depends on the facts and circumstances of the particular case.  The doctrine applies more readily to preserving a decision which has its imperfections but remains comprehensible than to preserving findings in a decision which cannot stand because its outcome is based on a fundamental misconception.  Of course country guidance must be departed from where that is justified by the evidence, but it would be odd to reverse the outcome in a case where the submission to that effect is recorded but not resolved (or not adequately resolved; paragraph 35 is not a good enough explanation for preferring the expert evidence over the guidance).”

 

The UT judge went on to note (in paragraph 17) that there was no application to lead any further evidence.  The question was what conclusions to draw from the evidence led before the FTT in light of country guidance, the further background evidence cited, and the expert report.  Parties were given an opportunity to put in further submissions and a further hearing took place some six weeks later on 7 March 2016.  The latter part of the decision (from paragraph 21 onwards) is based on those written and oral submissions.

[29]      Starting at paragraph 21, the UT judge sets out in some detail the submissions for each party.  His conclusions are contained in paragraphs 45-55.  The relevant passages are as follows:

“45.   Parties were in agreement that the decision of the First-tier Tribunal could not stand.  I have given my reasons for declining simply to reverse that decision.  [This appears to be a reference back to paragraph 16 quoted above.]  …

 

46.   The submission for the appellant is long on the correct legal approach to expert evidence, but on that the parties are not significantly at issue.  It is shorter on what the evidence actually says.  The respondent’s submission focused more accurately on the evidence, and on a comparison with the consideration in AX – which are of the essence, if guidance is to be superseded.

 

47.   The report by Ms Gordon is based on a few examples and on rather sweeping assertions.  …  The report does not bear out its contentions by reference to the specific evidence which might justify departing from the conclusions in AX.

 

48.   In particular, there is no substantial evidence in the report by Ms Gordon or from any other source to show that sterilisation is carried out by force other than during local crackdowns, as found in AX.

 

49.   Mr Caskie [who appeared on behalf of the appellant] emphasised that AX was decided some time ago, but there was no evidence produced to show force being used to any significant extent at any date later than that of the evidence before the UT in AX.

 

50.   The general tenor of the background evidence is in the direction of relaxation of family planning policy, and of its enforcement, in recent years.

 

51.   The evidence that the appellant is likely to be forced to undergo insertion of an IUD or sterilisation in order to obtain hukou for her children is lacking.  The evidence is rather that on production of their UK birth certificates and (perhaps) on payment of SUC or social compensation fees, the children will be registered.

 

52.   If payment is required, there is no good reason to think that the appellant would be unable to comply.  She is from a relatively well-off background.  She has the opportunity to return with financial benefits provided by the respondent.

 

53.   Denial of hukou is a situation faced on official figures by at least 13 million children in China in 2010, and on further evidence mentioned by Ms Gordon … the true number may be 30 million or even more.

 

54.  I do not find that the children in this case are at risk of hukou denial, but even if they were, the findings in AX were that millions live in that situation without suffering consequences which give rise to entitlement to international protection.  No evidence has been shown to justify going beyond AX in this branch of the case.

 

55.   The appellant’s argument towards the end veered towards new territory, which was barely opened up for exploration.  It is not immediately obvious that it has been overlooked to date that the principles as explained in HJ and HT [2010] UKSC 31 open up an alternative route to protection for women from China.  I see in this only another way of raising the same point about being protected from bodily invasion, a risk which I have not found to be established.

 

56.   The decision of the First-tier Tribunal is set aside.  The following decision is substituted: the appeal, as brought by the appellant to the First-tier Tribunal, is dismissed on all available grounds.”

 

The point made in paragraphs 54 and 55 appears to touch on an argument that if the consequences of hukou denial for the children were not such as to give rise to a right to international protection, then the risk of a mother being forced against her will to submit to sterilisation in order to get the children registered and avoid such consequences for the children should also not be regarded as a risk of forced sterilisation requiring international protection.  This point was not developed in argument before this court, where it was accepted that the appellant was entitled to succeed if it was established that she would be at risk of having to be sterilised against her will before she could have her children registered.  

 

Submissions

Appellant

[30]      On behalf of the appellant, Mr Caskie moved the court to allow the appeal against the decision of the UT and in consequence, based on the findings in fact in paragraph 35 of the decision of the FTT, to allow the appeal against the Secretary of State’s refusal of her asylum claim.  He adopted his written Note of Argument.  Underlying his argument was the submission that if the appellant was forced to undergo sterilisation against her will then this would amount to persecution.  It was no answer to say, as the FTT judge had said, that the appellant could avoid forced sterilisation by agreeing voluntarily to be sterilised.  He referred to HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 for the proposition that an asylum seeker cannot be required to change a fundamental aspect of his or her life to avoid persecution.  There was a finding by the FTT judge that the appellant would have to undergo sterilisation before she could register her children; and all parties agreed that if that finding stood the appellant was entitled to protection.

[31]      The UT judge took it upon himself to open up that finding, which was a finding in fact, not on the basis that it was undermined by some error of law but simply because he came to a different conclusion on the evidence.  He was not entitled to do this.  An appeal from the FTT to the UT was only on points of law: section 11(1) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”).  While it was no doubt correct, as stated in Kizhakudan v Secretary of State for the Home Department [2012] EWCA Civ 566 at paragraphs 28 and 30, that once it was established that there was an error of law in the decision of the FTT it was then open to the UT to re-make that decision and, in doing so, it could open up other aspects of the decision without requiring to find a separate error of law by the FTT, that power was to be used with caution.  The UT was not required to treat that error of law “as a gateway to opening up all the matters in respect of which errors of law were found not to exist in the judge’s determination”: EK v Secretary of State for the Home Department [2013] UKUT 313 (IAC) at paragraph 19.  Nothing in Kizhakudan or EK suggested that the UT was entitled to open up findings in fact made by the FTT unless they were undermined by some error of law.  In response to an intervention from the court, Mr Caskie agreed that the approach was similar to that adopted by an appellate court, which would not interfere with findings of fact made by an inferior court unless those findings were perverse, using that term as a shorthand for the approach described in Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203 and other recent cases to like effect.

[32]      The FTT judge did not make any error of law in arriving at her finding in fact.  She had before her the country guidance in AX and the expert evidence of Ms Gordon.  She also heard evidence from the appellant.  She clearly preferred the evidence of the appellant and Ms Gordon that the appellant would have to undergo sterilisation before she could register her children.  That was a decision she was entitled to make.  In so far as there was a complaint that the FTT judge had failed to give reasons for not following the country guidance case, there were many good reasons for preferring the evidence given by Ms Gordon, and it should be assumed that the FTT judge took these reasons into account in coming to her decision: see R (Iran) v Secretary of State for the Home Department (supra) at paragraph 13, adopting the remarks of Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119. 

[33]      The UT had itself erred in law in opening up the fact findings made by the FTT judge and in coming to a different conclusion from her on the facts.  Further, in so far as it was relevant to look at them, the findings by the UT in paragraphs 45-55 of its decision were themselves inadequately reasoned.  In particular, the UT proceeded on the basis that the issue was whether there was a risk that the appellant would be forcibly sterilised (ie by the use of physical force), when in fact Ms Gordon’s evidence was that she would be compelled into being sterilised against her will by reason of legal and bureaucratic pressures and the need to get her children registered.  The UT did not even consider Ms Gordon’s evidence to the effect that crackdowns were irrelevant –the system itself required a certificate of sterilisation to be produced before a child could be registered.  Had it upheld the FTT’s findings in fact, as it should have done, the UT would have been bound to allow the appeal both against the decision of the FTT and, in consequence, against the decision of the Secretary of State refusing the appellants asylum claim.

 

Respondent
[34]      On behalf of the Secretary of State, Mr Webster moved the court to refuse the appeal.  He too adopted his Note of Argument.  He submitted that the UT had been entitled to find that the FTT had erred in law, both procedurally and substantively, in making its findings in fact in paragraph 35.  The UT had therefore been entitled to reconsider those findings of fact and had given adequate reasons for the findings which it itself had made.

[35]      The FTT’s reasoning that, although the appellant would have to be sterilised, that was a matter of choice for her and she could avoid forced sterilisation by simply agreeing to be sterilised, was unsustainable.  The UT accepted that the FTT had been wrong in its conclusion on this point.  But it went on to hold that the manner in which the FTT had reached its finding in fact in paragraph 35 disclosed an error of law.  The appellant (correctly) did not contend that the UT, having found (or accepted) that there was one error of law, was not entitled to find a second.  It was a matter of discretion for the UT.  In response to a question from the bench about the terms of the Rule 24 notice, and the absence in that notice of any suggestion that the FTT’s findings in fact in paragraph 35 resulted from an error in law, Mr Webster submitted that the UT was entitled to entertain the point even if it had not been flagged up in the Rule 24 notice.  This was a matter of procedure in the tribunal system with which this court should not lightly interfere.

[36]      Mr Webster accepted that the UT was not entitled, absent new developments, to open up pure findings of fact, ie findings of fact which were not infected by any error of law on the part of the tribunal or which did not result from an error of law in the tribunal’s approach.  But he submitted that it was an error of law not to follow country guidance without good reason: R (Iran) v Secretary of State for the Home Department (supra) at paragraph 27.  In this case the FTT had given no adequate reasons for not following the country guidance in AX.  It had said nothing about why it preferred Ms Gordon’s evidence over the country guidance – it had simply stated its conclusion.  As to the content of the duty to give reasons, reference was made to Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 382.  The FTT’s failure to give any reasons in this case was an error of law which the UT was entitled to redress by itself considering the expert evidence against the country guidance.  The question before this court was whether the UT had erred in law in its approach to the findings of the FTT.  It had not.  This court should attribute some weight to the decision of the UT that the FTT had erred in law in reaching its findings.

[37]      Turning briefly to the evidence, Mr Webster accepted that if the FTT’s fact findings were restored, then the appellant was entitled to succeed.  However, he referred to the fact that Professor Fu is recorded in AX as having said that children were often registered without the mother being sterilised; and that was what the UT in AX found.  It was pointed out by the court that neither the evidence nor the findings in AX addressed the question of certificates of sterilisation being required before a child could be registered, a central point made by Ms Gordon, and, further, that the UT did not mention this point at all in its decision.  Mr Webster submitted that if there was any force in this point the matter should be remitted to the UT to reconsider its decision.  However, his primary submission was that the appeal should simply be refused.

 

Discussion

[38]      We are grateful for the submissions on behalf of both parties which have helped considerably in focusing the issues before the court.

[39]      The starting point for any consideration of this case is that the FTT clearly accepted Ms Gordon’s evidence that, if returned to China, the appellant would probably have to undergo sterilisation before she could register her children.  This is dealt with in paragraph 35 of the FTT decision where the judge makes a finding of fact to this effect.  The judge’s reasoning thereafter to the effect that she could avoid “forced” sterilisation and therefore avoid the risk of persecution by simply agreeing to be sterilised – reasoning which both parties agreed could not be supported – all proceeded on the basis of this finding that she would have to undergo sterilisation before she could register her children.  Mr Webster accepted, correctly in our view, that if Ms Gordon’s evidence on this matter was accepted, then the appellant was entitled to succeed.

[40]      The UT overturned this finding of fact.  It found, in effect, that there was no satisfactory evidence to the effect that the appellant was likely to be forced to undergo sterilisation (or insertion of an IUD) in order to register her children.  If that finding was accepted, then the appellant’s case must fail.  Mr Caskie accepted before the UT that if the tribunal accepted the findings in AX in preference to the evidence of Ms Gordon then the appeal would fall to be dismissed, and he made the same concession before this court.

[41]      Accordingly, the question for consideration in this court is whether the UT was entitled to open up and reverse the FTT’s fact findings, particularly the finding in paragraph 35.

[42]      Mr Webster accepted before us that the UT was only entitled to interfere with findings in fact made by the FTT if those findings were infected by some error of law or where the FTT made an error of law in reaching those findings in fact.  He was correct to make this concession.  An appeal from the FTT to the UT lies on a point of law: section 11(1) of the 2007 Act.  There is no appeal against the FTT’s findings in fact.  It is important to understand this point.  Of course, it may not always be possible to identify where the line is to be drawn between findings of “pure” fact, where the appellate body cannot usually intervene, and findings which are in truth findings of mixed fact and law or are what is sometimes called “evaluative” findings, where the approach to the fact finding task is determined by the legal framework within which factual assessments have to be made.  Thus, there will be cases where, before making its findings in fact, the FTT has first to identify the legal test it is seeking to apply.  It may, for example, be required to make a finding as to whether certain conduct is reasonable or proportionate, a question which may depend on the context in which or the purposes for which such an assessment is relevant or necessary; and in approaching these questions it may have to identify what, as a matter of law, requires to be taken into account.  In such cases an error of law in identifying what factors are or are not relevant may open up the whole of its decision for reconsideration, including what appear to be findings of “pure” fact, though it will not always do so.  If the FTT has erred in law by failing to take relevant matters into account in reaching its decision on the facts, or in taking into account irrelevant matters, or has reached a decision which no reasonable tribunal presented with the evidence and correctly applying the law could have arrived at, that too may entitle the UT to interfere.  Another situation, perhaps closer to this case, is where the FTT has erred in law, and the UT takes it upon itself to re-make the decision, as it is entitled to do under section 12(2)(b)(ii) of the 2007 Act.  It may in so doing “make such findings of fact as it considers appropriate”: section 12(4)(b).  But while in that situation the UT has the power to make additional supplementary findings, it does not have the power to overturn findings of “pure” fact made by the FTT which are not undermined or otherwise infected by that or any other error of law.  Nothing in the cases cited to us, in particular Kizhakudan and EK, suggests otherwise.  Our conclusion on this point is, in our opinion, consistent with the remarks of Lord Carnwath in HMRC v Pendragon plc [2015] 1 WLR 2838 at paragraphs 49-51.

[43]      In this case Mr Webster submitted, on the basis of what was said in R (Iran) v Secretary of State for the Home Department (supra) at paragraphs 26 and 27 and Rule 12.4 of the Practice Directions, that the FTT had erred in law in failing to apply the relevant country guidance decision without setting out clearly its reasons for preferring the evidence of Ms Gordon.  That omission suggested that it had failed to take into account a material consideration, ie the country guidance in that case, or that it had given legally inadequate reasons for its decision.  We are not persuaded on this point.  It is, of course, trite that a tribunal must give reasons for its decision.  But the nature of the reasons may vary according to the type of issue.  In Flannery at page 382 (in sub-paragraph (3) at the top of the page) the Court of Appeal made the obvious point that the extent of the duty to give reasons depended on the subject matter.  Where there was a straightforward factual dispute whose resolution depended simply on which witness was telling the truth about events which he claimed to recall, it is likely to be enough for the judge to indicate simply that he believes X rather than Y.  The same applies, in our opinion, when the question is about which witness is more reliable in his or her account.  But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed and explain why he prefers one case over the other.  The court noted that that was likely to apply particularly in litigation where there was disputed expert evidence.  In our opinion, although this case involves evidence which is classified as a matter of law as “expert evidence”, it is in substance evidence about the existence or otherwise of a given state of affairs, namely the family planning policies in China and how they are enforced, and is therefore largely a question of deciding which account is to be preferred.  It does not require detailed analysis. 

[44]      We also have in mind an earlier passage in R (Iran) v Secretary of State for the Home Department (supra) where the court discussed the obligation placed upon adjudicators (as they then were) to give reasons for their decisions.  While breach of that obligation might amount to an error of law, unjustified complaints of a failure to give reasons were seen “far too often”.  In this context reference was made to two cases as illustrating the relationship between an adjudicator and the Immigration Appeal Tribunal (“IAT”) (respectively now the FTT and the UT).  He adapted what Griffiths LJ said in Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 at 122 to the relationship between an adjudicator and the IAT, and we adapt it further to match the relationship between the FTT and the UT in the current system:

"[An FTT judge] should give his reasons in sufficient detail to show the [UT] the principles on which he has acted and the reasons that have led him to his decision.  They need not be elaborate.  I cannot stress too strongly that there is no duty on [an FTT judge], in giving his reasons, to deal with every argument presented by [an advocate] in support of his case.  It is sufficient if what he says shows the parties and, if need be, the [UT], the basis on which he has acted, and if it be that the [FTT judge] has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, [the UT] should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion."

 

We would endorse this approach, which reflects the position in Scotland as much as in England.  It has been stated repeatedly that reasons are directed towards the informed reader, who is aware of the evidence on both sides, the criticisms of that evidence and the arguments as to which should be preferred.  What is required, and all that is required, is that the decision must “leave the informed reader and the court [or superior tribunal] in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it”:  Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at page 347 per Lord President Emslie.  Adapting what Lord President Emslie said at pages 350-351 of Wordie, it is a fair inference that everything recited in her decision was regarded by the FTT judge as having a bearing, one way or another, on the reasons for her decision; she can be understood from the terms of her decision as telling the informed reader that certain witnesses or experts had given particular evidence which she regarded as material to the decision and the decision was reached in accordance with it.  It is not necessary in every case for the decision maker to set out at length in a separate part of the decision submissions which have already been recorded earlier on. 

[45]      In the present case the FTT judge set out in paragraph 28 the submissions made on behalf of the Secretary of State challenging the report by Ms Gordon.  In paragraph 30 she set out the submissions made on behalf of the appellant as to why Ms Gordon’s evidence should be preferred to the country guidance in AX.  Those submissions included reference to the fact that the country guidance case depended on evidence going back to 2010, in contrast to Ms Gordon’s recent experience of China and the intense research project on which she was engaged (focusing on the experiences of mothers who were denied a hukou for their children).  In her findings in paragraph 35 of her decision she clearly accepted Ms Gordon’s evidence.  The language used in paragraph 35 (“she will have to undergo sterilisation before she can register the children”) reflects that used in her summary of Ms Gordon’s evidence at paragraph 30 (“she will have to be sterilised before she can be issued with a permit”).  It is, in our view, clear that the FTT judge has preferred Ms Gordon’s evidence substantially for the reasons advanced to her on behalf of the appellant and summarised in paragraph 30.  Although it might have been helpful if she had set out her own reasons in more detail, we do not think that it was necessary for her to do so – those reasons are simply that she preferred the submissions advanced on behalf of the appellant.

[46]      In those circumstances we cannot accept Mr Webster’s submission that the FTT judge has erred in law in either failing to take account of some material consideration such as the country guidance case (she clearly did take it into account) or in failing to give reasons for not following it (she did, by adoption of the submissions made to her).  It was not suggested by the Secretary of State in her Rule 24 notice that the FTT judge had made such an error.  It is not clear to us that the UT itself considered that the FTT judge had made such an error.  The gist of what is said in paragraphs 15 and 16 of the UT decision is not that the FTT judge erred in law but rather that, having recorded the submissions from both sides on the weight to be given to the expert report as against the country guidance, the FTT judge failed to resolve those submissions.  But that is simply wrong.  She did resolve their submissions by finding in favour of the appellant (on the factual issue of forced sterilisation) on the basis of Ms Gordon’s expert evidence.

[47]      As we read the UT decision, the UT judge was accepting the submission made on behalf of the Secretary of State that the findings of the FTT could, in effect, be put to one side while he carried out a proper analysis of the country guidance and expert evidence.  In his concluding paragraphs, quoted above, the UT judge is really saying no more than that he himself assessed the competing evidence and that he preferred the country guidance in AX to the evidence given by Ms Gordon.  Whether or not there was merit in that assessment is not a matter on which we require to express a view.  The only relevant question for this court is whether the UT was entitled to embark upon that exercise at all.  As we have explained, that depended upon it being established that the FTT erred in law in reaching its findings in fact in paragraph 35 or failed to give legally adequate reasons.  For the reasons given above, we do not find it so established.  If follows that the UT itself erred in law in opening up and, in effect, reversing those findings.

[48]      For those reasons we have come to the view that the appeal must succeed.  It was not in dispute that if the fact findings of the FTT judge in paragraph 35 of her decision stood, then the appellant was entitled to succeed.  The consequence of that is that the appeal from the FTT should have been allowed, with the result that the appeal from the decision of the Secretary of State should also have been allowed.  We shall give effect to that in our order.

[49]      Mr Webster invited us to remit the matter to the UT if we found its reasoning unsatisfactory.  This might have been the appropriate course if we had held that the UT was entitled to open up the fact findings made by the FTT judge.  In those circumstances the quality of the reasoning given by the UT for arriving at different findings of fact on the question of forced sterilisation might have been open for discussion.  However, for reasons already stated, the quality of the UT’s reasoning is not the issue.  The question is whether it should have been doing it at all.  We have found that it should not have embarked on this exercise.

 

Disposal

[50]      For the above reasons the appeal against the decision of the Upper Tribunal dated 14 March 2016 is allowed.  The decision of the First-tier Tribunal dated 19 November 2015 is set aside and replaced by the following decision: (i) the appeal brought by the appellant to the First-tier Tribunal against the decision of the Secretary of State dated 9 April 2015 refusing her claim for asylum is allowed; and, in consequence, (ii) the decision of the Secretary of State dated 9 April 2015 refusing the appellant’s claim for asylum is quashed.  All questions of expenses are reserved.