MMY, APPEAL BY AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2018] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MMY, APPEAL BY AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2018] ScotCS CSIH_16 (20 March 2018) URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_16.html Cite as: 2018 GWD 11-148, [2018] ScotCS CSIH_16, 2018 SCLR 574, [2018] CSIH 16

[1] This is an appeal under sections 13 and 14 of the Tribunals, Court and Enforcement

Act 2007 against a decision of the Upper Tribunal (Immigration and Asylum Chamber), as

constituted by Upper Tribunal Judge Macleman, dated 14 November 2016. Permission to

appeal was granted by this court in terms of the interlocutor of Lady Clark of Calton dated

[2] The appellant is a Chinese national. She was born in 1988. She has been resident in

the United Kingdom since 17 November 2011, having entered the country with a tourist

[3] Since at least 2010 the appellant has been an adherent of the Church of Almighty

God, otherwise referred to as “Eastern Lightening”. The appellant describes Eastern

[4] On 4 June 2014 the appellant applied for asylum in the United Kingdom as a person

having refugee status due to her having a well-founded fear of being persecuted in her

country of nationality for reasons of religion. The respondent refused the appellant’s claim

in terms of letter dated 5 December 2014 and notice dated 6 December 2014 requiring the

[5] The appellant appealed refusal of her asylum claim in terms of sections 82(1)

and 84(1) of the Nationality Immigration and Asylum Act 2002. That appeal was refused by

the First-tier Tribunal (“the FTT”), as constituted by FTT Judge Bradshaw, in terms of

decision and reasons dated 23 March 2015. The appellant’s application for permission to

appeal that refusal was refused by the FTT, as constituted by FTT Judge Frankish, on

13 April 2015 and then by the Upper Tribunal (“the UT”), as constituted by UT Judge Kekic

on 22 June 2015. The appellant brought an application for judicial review of the decision of

the UT dated 22 June 2015. That application was heard by Lord Bannatyne who, in terms of

his interlocutor dated 10 February 2016, reduced the decision of 22 June 2015. On 28 July

2016 the UT, as constituted by the Vice President, having regard to Lord Bannatyne’s

interlocutor, granted permission to appeal the decision of 23 March 2015 to the UT. That

appeal was heard on 11 November 2016 and, as already indicated, refused by the UT, as

Country Guidance Determination: QH (Christians – risk) China CG [2014] UKUT 0086

[6] In terms of the Practice Directions of the Immigration and Asylum Chambers of the

FTT and the UT of 10 February 2010, as amended 13 November 2014, a reported decision of

the Tribunal may be designated with the letters “CG” to indicate country guidance. The

object is to identify cases where, on the basis of evidence, findings have been made which

are of general application to specific issues as they arise in particular countries.

Paragraph 12.2 of the Practice Directions provides that 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

[7] QH (Christians – risk) China CG [2014] UKUT 0086 (IAC) is one such country

guidance case. It was convened in order to address the questions:

“To what extent do Christians in China have the ability or freedom to openly or

publicly profess and practise their faith? Such to encompass the ability to proselytise

and “To what extent and in what circumstances do Christians face persecution in China?”

[8] The determination and reasons in QH together with its appendices extends to

70 pages in the print with which we were provided. There, the evidence which the UT

heard is discussed in detail. The evidence relates to Catholic and Protestant Christian

churches with only incidental reference to other faiths and belief systems. The Falun Gong,

for example, is mentioned on three occasions, at paragraphs 18, 86 and 87, but in contexts

which make clear that it is not regarded as a church for the purposes of the UT’s

determination. A feature of that evidence is that in China a distinction falls to be made

between state-registered (and state supervised) Christian churches, on the one hand, and

unregistered or “house” churches, on the other. The determination includes references to

evidence to the effect that religious freedom is subject to constraint in China but the UT sets

out its conclusions at paragraph 137 of its determination and reasons inter alia as follows:

“(1) In general, the risk of persecution for Christians expressing and living their faith

in China is very low, indeed statistically virtually negligible. The Chinese

constitution specifically protects religious freedom and the Religious Affairs

Regulations 2005 (RRA) set out the conditions under which Christian churches and

(i) In general, the evidence is that the many millions of Christians worshipping

within unregistered churches are able to meet and express their faith as they wish to

(ii) The evidence does not support a finding that there is a consistent pattern of

persecution, serious harm, or other breach of fundamental human rights for

(iii) The evidence is that, in general, any adverse treatment of Christian communities

by the Chinese authorities is confined to closing down church buildings where

planning permission has not been obtained for use as a church, and/or preventing or

(iv) There may be a risk of persecution, serious harm, or ill-treatment engaging

international protection for certain individual Christians who choose to worship in

unregistered churches and who conduct themselves in such a way as to attract the

local authorities’ attention to them or their political, social or cultural views.

(v) However, unless such individual is the subject of an arrest warrant, his name is

on a black list, or he has a pending sentence, such risk will be limited to the local area

[9] Distinct from the country guidance to be derived from a CG determination is the

country of origin information contained in the Country Information and Guidance

documents published by the Home Office. The purpose of such CIG documents is to

provide guidance to Home Office decision-makers. One of these documents, current as at

the date of the hearing of the appellant’s appeal by the FTT, was Country Information and

Guidance, China: Christians updated 13 June 2014 (“CIGCC 2014”). A copy of CIGCC 2014

[10] CIGCC 2014 refers to the decision in QH and narrates the UT’s conclusions in that

case in its Annex B. However CIGCC 2014 contains material additional to that discussed

in QH. For present purposes it is relevant to note what appears (at paragraphs 2.2.3

and 2.3.10) in relation to Eastern Lightening and what are referred to by the Chinese

“2.2.3 Only religious groups belonging to one of the five state-sanctioned ‘patriotic

religious associations’ (Buddhist, Taoist, Muslim, Roman Catholic and Protestant)

are permitted to register with the government and legally hold worship services.

Other religious groups, such as Protestant groups unaffiliated with the official

patriotic religious association or Catholics professing loyalty to the Vatican are not

permitted to register as legal entities. Proselytising in public or unregistered places of

worship is not permitted. Certain religious or spiritual groups are banned by law.

Amongst these, the government considers several Protestant Christian groups to be

'evil cults', including the 'Shouters', Eastern Lightning, the Society of Disciples, Full

Scope Church, and many others. Individuals belonging to these groups can be

sentenced to prison; on the basis that membership of these groups (‘evil cults’) is

banned by law. The Chinese Communist Party maintains its Leading Small Group

for Preventing and Dealing with the Problem of Heretical Cults and its

Implementing ‘6-10’ offices, to eliminate the Falun Gong movement and (latterly)

2.3.10 Members of unregistered Protestant groups that the government arbitrarily

deems ‘evil cults' are the most vulnerable to detention, arrest and harassment. The

extra-judicial security apparatus, called the 6-10 Office, has broadened its mandate

beyond Falun Gong activity to include groups that self-identify as Protestant. The

government has banned at least 18 Protestant groups. Examples include the Disciples

Association, the ‘Shouters’, and the Local Church, a group that was founded by

[11] Also before the FTT was a report, dated 27 February 2015 and headed “Expert

Country Opinion: China”, from Professor Christoph Bluth. Professor Bluth is the incumbent

of the chair of International Relations and Security at the University of Bradford. At

“...there is a general risk for all members of Eastern Lightening of persecution by the

authorities given that their organisation is considered illegal and that the most

important demands of [the appellant’s] religion give rise to activities that are deemed

to be criminal acts and will result in persecution by China’s authorities”.

[12] In support of her appeal the appellant gave evidence to the FTT that on returning to

China from studying in Denmark in October 2011 she had been involved in a street

demonstration as a way of promulgating her beliefs; that she had been arrested and

detained by the police; and that she had been physically abused when in custody.

According to the appellant she had thereafter been placed under house arrest but had

escaped and then fled from China. She explained that since coming to Glasgow she has

practised her religion online. The FTT noted the terms of CIGCC 2014 without adverse

comment (FTT decision paragraph 53) and it accepted that the appellant was “an ordinary

member of the Eastern Lightening religion” (paragraph 100) but no more than that; the FTT

did not find the appellant’s account of her experience to be credible (paragraphs 68 to 70,

75, 98) and accordingly rejected the proposition that the appellant had “any profile with the

Chinese authorities” (paragraph 100). The FTT recorded having given full consideration to

the report from Professor Bluth (paragraphs 77 and 84, also paragraphs 79 and 80) but

“it is on the basis that the appellant was arrested and bailed that Professor Bluth

specifies there is a serious risk that the appellant would be persecuted by the Chinese

(paragraph 83). Having found that the appellant was nothing other than an ordinary

member of the Eastern Lightening religion without any profile with the Chinese authorities,

the FTT referred to findings (4) (i), (iii), (iv) and (v) in the QH headnote and concluded that if

the appellant is returned to China she will not be of any particular interest to the Chinese

[13] As indicated above, the UT’s refusal of permission to appeal the FTT’s determination

was the subject of an application for judicial review. In that application the now appellant

argued that her case had been put to the FTT on two factual bases: first, that she was at risk

of persecution because of what had happened in October 2011 combined with her being a

member of Eastern Lightening; and, second, that she was at risk of persecution by mere

membership of Eastern Lightening (FFT decision paragraph 37). The first factual basis had

been rejected but the second, she said, had not. Notwithstanding that, the FTT had

dismissed the appeal without considering the appellant’s alternative case. In other words

the FTT had not considered whether, on the evidence before it, the appellant faced the risk

of persecution simply because she was a member of Eastern Lightening. The point was

accepted by Lord Bannatyne. As he explains in his Note, he was unable to identify any

consideration of the appellant’s case by the FTT on the second factual basis. Accordingly, he

reduced the refusal of permission to appeal the FTT’s determination.

[14] In terms of sections 11 (1) and (2) and 12 (1) of the 2007 Act, the question for the UT

on an appeal from the FTT is whether the decision of the FTT involved the making of an

error on a point of law. As recorded by the UT at paragraph 10 of its determination and

reasons, the argument in support of that proposition appears to have been to the effect that

the FTT had erred in having regard to the country guidance in QH because that case did not

address the circumstances of someone, like the appellant, who was an adherent of a

Christian church which was not only unregistered but which was banned as an “evil cult”.

Once it was recognised that membership of Eastern Lightening placed the appellant into “a

further category of risk”, and the background information was taken into account, it should

be concluded that the FTT’s conclusion that the appellant did not face a relevant risk on

return to China was erroneous and the FTT’s decision should be set aside and reversed. As

is submitted at paragraph [5] of the respondent’s note of argument to this court, the UT

implicitly accepted that the FTT had not engaged with the issue of risk arising from mere

membership of an “evil cult”, such as Eastern Lightning. That can be said to have involved

an error on a point of law. However, on the basis of its consideration of the background

news reports and other materials produced by the appellant (paragraph 15 of the UT

determination) the UT did not find the error to have been “such as to require the decision to

[15] The reason why the UT did not find the error of the FTT to have been material

appears in the following passages taken from paragraphs 16, 17, 18 and 19 of the UT’s

“16 …The evidence shows serious outcomes for a few [members of Eastern

Lightening] after a particular period of hectic activity, but not mass ongoing arrests

17. There may be Christian religious groups in China at the extremes, involvement

with which takes an individual beyond the QH categories of registered and

unregistered churches. However, the evidence does not disclose a further

straightforward category of banned ‘evil cults’, simple membership of which leads to

a protection need. Such cases must depend on the evidence about the particular

18. The inclusion of Falun Gong among the ‘evil cults’ is instructive. It is a movement

strongly disapproved of by the government, some of whose practitioners have been

found to be at risk, but involvement has never been found to require blanket

protection. The position for Falun Gong practitioners, who are within the ‘evil cult’

legal category, is broadly similar to that of participants in unregistered churches.

There is no clear distinction between the unregistered and the banned categories.

19. The evidence does not establish risk to the many members of Eastern Lightening,

absent additional factors of a similar nature to those identified in QH in relation to

unregistered churches. The appellant had not engaged in crime, preached the

apocalypse or otherwise drawn the wrath of the authorities and was not likely to do

so. The principles of QH were safely applicable. Any failure to draw a distinction

between groups which were unregistered and those which have been specifically

banned did not amount to a legal error such as to require the decision to be set

[16] The appellant’s grounds of appeal are somewhat diffuse with some overlap between

1. The UT erred in law either by failing to take into account or by failing to explain

what weight was attached to CIGCC 2014 and Professor Bluth’s opinion.

2. The UT erred in law when finding that the appellant was not at real risk of

persecution. In any event the appellant’s position in her statement was that she

would not be able to practise her religion openly for fear of persecution.

Accordingly, as someone who fears persecution whose fear is well-founded she is

entitled to asylum, however unreasonable refusal to resort to concealment may be:

HJ (Iran) v Home Secretary [2011] 1 AC 596 at paragraphs 35 and 82.

3. The UT erred in finding QH safely applicable where that case gave no guidance

[17] Mr Winter, who appeared for the appellant, adopted his note of argument. In his

submission the UT had failed to have regard to or at least to apply anxious scrutiny to the

evidence. He drew particular attention to the expert report from Professor Bluth where it

was stated that all members of Eastern Lightening were at real risk. The UT does not

explain what it made of that report and, if other evidence was preferred to it, the reason for

that. That was an error: MSYZ v Secretary of State for the Home Department [2017] CSIH 41 at

paragraph 43. Proselytizing is a central part of religious life in Eastern Lightening and a

duty common to all believers. The UT’s analogy with Falun Gong was therefore inapposite.

The UT had failed to notice the country information to the effect that there is a distinction to

[18] The UT had failed to record and then to apply the appellant’s submission under

reference to HJ (Iran) v Home Secretary. The appellant would not be able to practice her

religion openly, including attending meetings even if she was not previously known to the

authorities or if she did not proselytize. The UT’s observation that she was unlikely so to

conduct herself as to bring herself to the attention of the authorities ought to have been

sufficient to bring her within the principle of HJ (Iran). This was not a case which engages

the core/marginal distinction for reasons given at paragraph 51 of RT (Zimbabwe) v

[19] On behalf of the respondent, Mr Webster proposed that should the court take the

view that the determination of the UT was inadequately expressed then the appropriate

disposal would be to remit the appeal back to the UT. It would then be open to the UT to

constitute itself as a first instance tribunal to reconsider the claim. However, in

Mr Webster’s submission, that should be unnecessary. Given the concern that the FTT had

treated Eastern Lightening as if it were simply an example of an unregistered church, the UT

had looked at the evidence with a view to identifying whether in China membership of

Eastern Lightening, per se, gave rise to such a risk as to bring about a need for protection.

The available background evidence included the respondent’s Country Information and

Guidance Note relating to Christians in China, CIGCC 2014. That guidance noted, at

paragraph 2.2.3, that there were registered and unregistered religious organisations in

China; and that some unregistered organisations, designated “evil cults”, were banned in

law. Membership of these could result in imprisonment. Eastern Lightning and Falun Gong

were identified as “evil cults”. Other background information also identified Falun Gong as

an “evil cult”. In QH the UT had found, after a consideration of evidence as to the actual

approach of the Chinese authorities to members of unregistered churches, that the evidence

did not support a finding that there was a consistent pattern of persecution, serious harm or

other breach of fundamental human rights as a consequence of membership of unregistered

churches per se. Everything turned on the conduct of the individual in question. Whilst

Eastern Lightning, as an unregistered church which is also banned by the Chinese state,

might be characterised as outside the category considered in QH, the proper approach to the

assessment of risk ought to be similar to that adopted in QH, in other words to consider the

[20] The information before the UT as to the actual treatment of members of Eastern

Lightning by the Chinese state included the report of Professor Bluth and the background

information. Professor Bluth’s evidence was that proselytising was a fundamental duty of a

member of Eastern Lightning (report paragraph 5.3.9); and whilst there was a general risk

of persecution because of membership of Eastern Lightning, there was a serious risk for the

appellant because of her asserted history of having been arrested and bailed in China for her

[21] The background evidence, noted by the UT, included a report of the Immigration

and Refugee Board of Canada entitled China: the Church of Almighty God (Quannengshen),

also known as “Eastern Lightning”. The UT noted from that report that membership of

Eastern Lightning is considered to run from several hundred thousand to one million but

that despite particular activity at the end of 2012 associated with a predicted Apocalypse

there were limited arrests and detentions of members and even fewer prosecutions, with

variable outcomes. The UT in considering the evidence had regard to the distinction to be

drawn between unregistered churches (as discussed in QH) and “evil cults”. It had then

gone on to draw a legitimate conclusion on the evidence before it: that the evidence did not

disclose a straightforward category of banned “evil cults” simple membership of which

leads to a protection need, rather cases must depend on the evidence about the particular

organisation, and about the individual. To the extent that the evidence of Professor Bluth

was not consistent with the background evidence, it is clear that the UT preferred the

background evidence: R (Iran) v Secretary of State for the Home Department [2005] INLR 633,

paragraph 14. The UT’s reference to the inclusion of Falun Gong among the “evil cults” as

“instructive” was relevant and legitimate. The point being made by the UT was that within

the category of “evil cults” there were organisations, membership of which, although

unlawful and therefore giving rise to what Professor Bluth would describe as a “general

risk”, where membership alone did not per se lead to a protection need: one had to consider

the organisation and the individual’s activity within it. The appellant had not been believed

in relation to her proselytising activities in China nor as to the genuineness of her claim to be

proselytizing in the United Kingdom nor that she would genuinely proselytise in the event

of her return to China in a manner that would bring her to the attention of the Chinese

authorities. These adverse credibility findings were not challenged. The UT was therefore

correct to observe that “the appellant had not engaged in crime, preached the apocalypse or

otherwise drawn the wrath of the authorities and was not likely to do so”. The UT was also

entitled to conclude that there had been no material error on the part of the FTT in not

expressly drawing a distinction between unregistered churches and “evil cults”: had that

been expressly considered the conclusion would have been the same: on the evidence a risk

giving rise to a protection need did not arise out of membership per se (in like manner, but

for different reasons in the case of Falun Gong membership); and the appellant’s own

[22] Mr Webster then addressed the appellant’s contention that the decision of the UT is

unsustainable in the light of the decision in HJ (Iran) as the appellant would have to refrain

from openly practicing her religion in the event of return to China. As he had already noted,

the unchallenged finding of the FTT was that the appellant was neither credible in relation

to her Eastern Lightning activities whilst in China nor genuine in relation to her Eastern

Lightning activities in the United Kingdom. She was therefore not a person who was likely

to act, in the event of return to China, in a manner that would bring her to the attention of

the Chinese authorities. The FTT did not consider the appellant to be a person who had a

genuine desire to practice her religion openly in such a manner as to give rise to a protection

need. She therefore could not be a person who would genuinely refrain from doing so for

fear of persecution. Further and in any event, not every restriction on the manner in which

one practices a religion is persecution. Whilst restrictions on activities at the core of a

protected right will amount to persecution, restriction on activities at the margin will not,

particularly in respect of the protection of characteristics that are not immutable: HJ (Iran),

Dyson JSC at paragraphs 113-115, Lord Hope at paragraph 35, Lord Rodger at paragraph 72.

If the appellant has a genuine desire to practice her religion openly in a manner that will

bring her to the attention of the Chinese authorities, that manner of professing her choice of

religion lies at the margins of her religion. Proselytising may be part of the religion of

Eastern Lightning but the evidence does not support a conclusion that the hundreds of

thousands of Eastern Lightning members (presumably practising their religion in the way

that members do practise it) face persecution by the Chinese state. The appeal should be

[23] The issue for this court is whether the UT erred in law. Permission to appeal having

been granted, we are no longer concerned with the additional criteria set out in Rule of

[24] The appellant’s claim that she should not to be returned to China depends upon her

establishing that she is a refugee and therefore entitled to asylum.

[25] Notwithstanding the making of Council Directive 2004/83/EC, which has the object

of laying down minimum standards for those in need of international protection, and the

partial transposition of that Directive by the United Kingdom in terms of the Refugee or

Person in Need of International Protection (Qualification) Regulations SI 2006/2525, the

definition of refugee remains that contained in article 1A of the Geneva Convention of 1951

Relating to the Status of Refugees, as amended by the Protocol to the Convention of 1967. A

“owing to a well-founded fear of being persecuted for reasons of race, religion,

nationality, membership of a particular social group or political opinion, is outside

the country of his nationality and is unable or, owing to such fear, is unwilling to

avail himself of the protections of that country; or who, not having a nationality and

being outside the country of his former habitual residence as a result of such events,

is unable or, owing to such fear, is unwilling to return to it”

Thus, the issue for the FTT was whether the appellant had established what she claimed:

that as a Chinese national and an adherent of Eastern Lightening she had a well-founded

fear of persecution for reasons of religion should she be required to return to China. The

FTT found on the evidence that the appellant had failed to establish what she claimed.

However, it is now accepted on all sides that the FTT determination was flawed in that it

had failed to consider that aspect of the appellant’s case which was based on the proposition

that, irrespective of her previous individual experience with the Chinese authorities (or lack

of it), the appellant was at risk of persecution by reason of her membership of Eastern

Lightening and nothing more than membership (referred to in submissions as “mere

membership” or “membership per se”). Parties are agreed that the UT determination is to be

read as including the implicit acceptance that the FTT had erred in law in this respect. The

significance of this is that the UT was exercising the appellate jurisdiction conferred by

sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007; appeal to the UT is

on any point of law arising from a decision of the FTT. When exercising this jurisdiction the

UT may, but is not obliged to, set aside a decision in the event that it finds the FTT has made

an error in law; hence the approach of the UT in the present case. Starting with an implicit

acceptance that the FTT had failed to consider the appellant’s contention that she was at risk

of persecution by mere membership of Eastern Lightening, with a view to determining

whether the accepted error of the FTT had been material, the UT embarked on its own

assessment of the available evidence in order to determine whether that proposition had

[26] As we have already noted, the UT concluded on its review of the evidence that

“any failure to draw a distinction between groups which were unregistered and

those which have been specifically banned did not amount to a legal error such as to

It did so because what it took from the evidence was that however Eastern Lightening may

be described and whatever its precise legal status in China, given what actually happened in

practice its members did not have a well-founded fear of persecution simply by reason of

their being members; members were in a similar position to that of members of other

[27] The appellant invites us to find that that conclusion discloses error on point of law.

We accept that it does; and that on two bases. First, we do not consider that the UT has

given adequate reasons for rejection of evidence apparently supporting the appellant’s

contention that mere membership of Eastern Lightening does indeed give rise to a

well-founded fear of persecution. Second, the UT did not address the consideration that as

an adherent of Eastern Lightening, as the appellant had been found to be, she would be

suffering from persecution were it to be necessary for her to abstain from the open practice

of her religion in order to avoid the adverse consequences of not doing so.

[28] It is uncontroversial that the UT decision, which was a judicial decision, required to

be adequately reasoned. Thus, as a decision requiring an assessment of facts, it was

necessary for the UT to demonstrate that it had had regard to the relevant evidence and,

where evidence was not accepted or not given weight, to explain in sufficient detail why

that was so. As Lord Glennie said when giving the opinion of the court in MSYZ v

Secretary of State for the Home Department at paragraph [43], a detailed analysis is not

required. However, there must be enough to disclose the decision-making process. In the

present case the determination of the UT does not specifically address two sources of

evidence: first, Professor Bluth’s opinion and, second, the respondent’s guidance as

provided in CIGCC 2014. Accordingly, one cannot know what it made of them. We see that

as material. Strictly, it was not relevant for Professor Bluth to express an opinion on the

question of risk of the appellant facing persecution, that was for the tribunal, but in

paragraph 2 of the report headed “Expert Country Opinion: China”, the professor sets out a

basis upon which he might be accepted as someone having special knowledge of conditions

in China which, as he explains in paragraph 4, he has augmented by specific research into

Eastern Lightening and similar cults. He would therefore appear to be an appropriate

source of evidence on how those identifying themselves as members of Eastern Lightening

are in fact treated by the Chinese authorities. We have already noted the passage in

Professor Bluth’s report where he expresses the view that there is a general risk for all

members of Eastern Lightening of persecution by China’s authorities. That is effectively

restated in the professor’s conclusion at paragraph 6 of the report. While the passage at

paragraph 5.3.11 and the conclusion are of the nature of expressions of opinion and

therefore beyond his strict remit, Professor Bluth supports his conclusion by his references to

a number of more factual points: a history of persecution of Christians (paragraph 5.3.1), the

current regulation and supervision of official religions (paragraph 5.3.2), evangelism (and

therefore visible public engagement) being one of the key missions required of every

Christian (paragraph 5.3.5), the prohibition of proselytizing (paragraph 5.3.7), and

proselytizing being one of the most fundamental duties of a member of Eastern Lightening

and something considered by the Chinese authorities as a major threat to public order

(paragraph 5.3.9). These points as well as the conclusion reached by Professor Bluth are at

least consistent with the guidance in CIGCC 2014 which, as it will be recollected, includes

the information that: “Members of unregistered Protestant groups that the government

arbitrarily deems ‘evil cults’ are the most vulnerable to detention, arrest and harassment.”

[29] Professor Bluth’s report and CIGCC 2014 formed only part of the evidence before the

UT. It was open to the UT to reject them or give them little weight, but ex facie they gave

substantial support to the appellant’s claim. Accordingly, the UT was required to give them

careful consideration and to demonstrate in its reasoning what the result of that

consideration had been. It is no exaggeration to say that there is simply nothing of that sort

in the UT’s determination. Mr Webster, on behalf of the respondent, put forward his

rationale for the UT’s conclusion. We mean no disrespect to Mr Webster when we observe

that it was his rationale and not necessarily the rationale of the UT. It was for the UT

sufficiently to explain itself. We do not consider that it did so.

[30] That is sufficient for our decision but we also accept that the UT has not

demonstrated that it had regard to the principle which is to be derived from HJ (Iran) v

Home Secretary. At paragraph 19 of its determination the UT observes that the appellant

“had not engaged in crime, preached the apocalypse or otherwise drawn the wrath of the

authorities and was not likely to do so.” Now that, on the evidence, might be an accurate

statement, but if the UT attached significance to it, as it would appear that it did, it was

necessary for it then to ask itself the question why the appellant would not be likely to do

anything to draw “the wrath of the authorities”. If the answer was that she would act in this

way in order to avoid the persecution that would follow if she did not, then she satisfies the

criteria for asylum. There is nothing in the UT determination to indicate that it turned its

mind in this direction. We recognise that there may be aspects of religious practice which

can be foregone without materially impinging on the right which the Refugee Convention is

intended to protect (the core/marginal distinction discussed in RT (Zimbabwe) v Secretary of

State for the Home Department). However, because the HJ (Iran) principle does not appear to

have been considered, that point was not reached by the UT. Accordingly, on this matter as

with Professor Bluth’s report and CIGCC 2014, we would see the UT’s decision as having

[31] Our finding that the UT’s decision proceeded upon error on point of law does not of

course involve any determination, one way or the other, of the factual question of whether

the appellant would be at risk of persecution if she returned to China. That question awaits

lawful decision. We will therefore allow the appeal and remit to a differently constituted UT

to reconsider that question. We were reminded by Mr Webster that it is open to the UT to

constitute itself as a tribunal of first instance for that purpose. However, we leave it to the

UT, with the assistance of parties, to determine the appropriate procedure to be followed.

Scottish Court of Session Decisions